State v. Franco, 319 P.3d 551

Background

Victim T.W.K., a man in his mid-20s with a disability, accused Franco of forcible anal intercourse in April 2011 in Garden City.
Franco and the victim’s girlfriend, with whom Franco had a relationship, were present during some interactions; Franco demonstrated wrestling moves to the victim in the past.
Franco allegedly entered the apartment, overpowered the victim, and the act occurred despite the victim’s pleas to stop; Franco left after his girlfriend returned.
The county attorney charged Franco with aggravated criminal sodomy (level 1 felony) and misdemeanor battery; the sodomy count required proof the victim was overcome by force or fear and did not consent.
At trial, the jury heard conflicting accounts: the victim described forceful sodomy; Franco claimed the act was consensual and stopped when protested; the jury convicted Franco of aggravated criminal sodomy and acquitted the battery charge.
Franco received a standard guidelines sentence of 620 months; on appeal, he challenges jury instructions, sufficiency of the evidence, and prosecutorial misconduct in closing argument.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bunyard instruction was required for withdrawal of consent	Franco argues Bunyard applies to lack of consent in aggravated sodomy	Franco contends Bunyard not applicable given his version; no measurable time after consent withdrawn	Bunyard instruction not required; fact pattern lacked applicable withdrawal scenario
Whether criminal sodomy could be a lesser included offense	Franco asserts criminal sodomy should have been instructed as lesser included offense	State argues Lawrence bars enforcement and thus no lesser included offense possible	Criminal sodomy cannot be a lesser included offense here due to Lawrence undermining enforceability; no instruction warranted
Whether Kansas sodomy statutes are unconstitutional after Lawrence	Franco argues statute unconstitutional and unenforceable to same-sex conduct	State relies on recodification and precedent; Lawrence applies to same-sex conduct	Statutes unconstitutional under Lawrence; cannot be applied to prohibit same-sex anal intercourse; no lesser included offense instruction certifiable
Sufficiency of the evidence to support aggravated criminal sodomy	Franco argues inconsistent victim testimony undermines consent element	Evidence showed lack of consent and victim protest; credibility for jury	Rational jurors could convict; no reweighing of credibility by appellate court; evidence supports verdict
Prosecutorial conduct in closing argument	Franco claims closing diluted burden by improper credibility framing	Prosecutor fairly argued witness credibility within proper bounds	No reversible error; closing remarks fair comment on credibility and burden; did not mislead jury

Key Cases Cited

State v. Bunyard, 281 Kan. 392 (2006) (recognizes Bunyard instruction for withdrawal of consent in rape cases)
State v. Plummer, 295 Kan. 156 (2012) (outlines four-step analysis for challenges to jury instructions; clear error standard for appeal)
State v. Ward, 292 Kan. 541 (2011) (harmless error standard for trial errors; Ward standard used for some analyses)
State v. Mireles, 297 Kan. 339 (2013) (clarifies test for clearly erroneous jury instructions)
State v. Williams, 295 Kan. 506 (2012) ( articulates standard for review of jury instructions and preservation)
Lawrence v. Texas, 539 U.S. 558 (2003) (held same-sex private consensual sodomy unconstitutional; due process liberty interest)
State v. Ochs, 297 Kan. 1094 (2013) (recites three-step test for prosecutorial error on appeal)
State v. Becker, 290 Kan. 842 (2010) (affirms burden and instructions regarding elements beyond reasonable doubt)
Hargrove, 48 Kan. App. 2d 522 (2013) (standard for appellate review of sufficiency)