State v. Flynn
329 P.3d 429
Kan.2014Background
- Kansas Supreme Court reviews pre-2011 rape conviction involving post-penetration withdrawal of consent.
- Defendant Flynn was convicted of rape along with other charges; victim A.S. testified withdrawal of consent occurred after penetration.
- Bunyard held post-penetration withdrawal supports rape and required a 'reasonable time' instruction; court later disapproved the 'reasonable time' part.
- The Court of Appeals reversed Flynn for failure to give Bunyard instruction; State sought review impact.
- This Court disapproved the 'reasonable time' concept but reaffirmed need for a supplemental instruction when withdrawal occurs, and remanded for a new trial with modified Bunyard instruction.
- The offense occurred in 2007 under the pre-2011 rape statute (K.S.A. 21-3502(a)(1)(A)); post-2011 amendments affect later cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bunyard’s reasonable time rule should be disapproved and a modified Bunyard instruction must be given. | State urged disapproval of the reasonable time rule and supported a modified Bunyard instruction. | Flynn argued Bunyard instruction was not required; argued no error or harmless error. | Disapproved the 'reasonable time' rule but required a modified Bunyard instruction. |
| Whether the district court erred by not giving a modified Bunyard instruction given post-penetration withdrawal evidence. | State contended the trial court should have given the modified Bunyard instruction. | Flynn contended the existing instructions were sufficient. | District court erred in failing to give the modified Bunyard instruction. |
| Whether the error was harmless given the trial record. | State argued potential impact on the verdict should be considered. | Flynn contended harmless error given other evidence. | Error not harmless beyond a reasonable doubt; remanded for new trial. |
Key Cases Cited
- State v. Bunyard, 281 Kan. 392 (2006) (post-penetration withdrawal can constitute rape; originally required a reasonable time to act; Court later disapproved portion but affirmed post-penetration rape concept)
- In re John Z., 29 Cal.4th 756 (2003) (rejected 'reasonable time to withdraw' as a defense; influenced Bunyard's analysis but later distinguished by Kansas court)
- State v. Ward, 292 Kan. 541 (2011) (harmful-error standard in constitutional context; used in assessing harmlessness of instructional error)