State v. Nunez, 298 Kan. 661

Victim M.N. and Armando Nunez had a prior marriage and lived together; they had children.
On Jan. 21, 2007, Nunez forced sexual intercourse on M.N. in the bedroom and later allegedly committed aggravated sodomy in the bathroom; M.N. resisted and called police soon after.
Nunez admitted at interview that he removed her clothes and forced sexual acts; he said he might have engaged in anal penetration.
Jury convicted Nunez of rape (K.S.A. 21-3502(a)(1)(A)) based on the bedroom incident and acquitted him of aggravated criminal sodomy; district court sentenced him to 176 months.
The Court of Appeals affirmed; Nunez appealed to the Kansas Supreme Court challenging the construction of the phrase "force or fear" and arguing insufficient evidence of fear.
Kansas Supreme Court held that "force or fear" are options within a single statutory means (not alternative means) and, because sufficient evidence of force existed, affirmed the rape conviction.

Issue	Nunez's Argument	State's Argument	Held
Whether the phrase "force or fear" in K.S.A. 21-3502(a)(1)(A) creates alternative means requiring proof of each	"Force or fear" are alternative means; State must prove both (or each alternative) under super-sufficiency test; evidence of fear was insufficient	The phrase describes options within a single means (being "overcome"); proof of either force or fear suffices; no alternative-means unanimity rule triggered	The court held "force or fear" are options within one means, not alternative means; super-sufficiency/unanimity rule does not apply and evidence of force suffices to uphold conviction
Whether fear evidence arising after the bedroom intercourse can be used to support a rape conviction	Post-intercourse fear in the bathroom cannot support the earlier bedroom rape; thus insufficient evidence of fear for the bedroom incident	The court need not rely on fear because evidence of force during the bedroom intercourse was sufficient	The court did not rely on post-incident fear; because force was established for the bedroom act, conviction stands

State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994) (addressed jury instruction including "force or fear" and applied alternative-means language)
State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010) (discussed Timley and sufficiency standards; treated issues inconsistently in analysis)
State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012) (established framework for determining when disjunctive statutory language creates alternative means versus options within a means)
State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006) (discussed contemporaneity of fear with sexual act for rape analysis)