State v. Bunyard

88,546 No. Appellee, Appellant. Kansas, Bunyard,

State R. Josiah 14) (133 P.3d filed 2006.

Opinion April Monnat, Chartered, Wichita, Daniel E. of Monnat & Spurrier, argued cause, Nichols, Lawrence, A. was with him on the Paige briefs for appellant. Isherwood, cause, K assistant district Boyd and Nola attorney, argued Foulston, Kline, district and Phill attorney, were with him on attorney general, tile brief for appellee. of the court was delivered opinion R. this court for review of Davis, Bunyard petitions J.: Josiali the Court of decision his conviction of Appeals’ affirming (K.S.A. 21-3502[a][l]) in State v. Supp. Bunyard, (2003). 2d We his on three App. granted petition issues: of three in one K.S.A. joinder rape charges complaint, 22-3202(1); (2) an issue of first whether it is impression regarding when the initial was consensual but consent was penetration withdrawn and the time; intercourse continued for a and period misconduct We reverse prosecutorial during closing argument. the decision of the Court of court, the district Appeals affirming court, reverse the district and remand a for new trial.

The defendant was with three counts of charged rape stemming from three incidents with separate acquaintances and 2001. The combined all three into one charges information filed on 2001. The defendant’s motion to February sever the was denied the district court. He was charges acquitted of two of the but was found E.N. As the charges guilty raping defendant was on two of the the facts of those acquitted charges, cases will be discussed as relate to the severance issue only they raised the defendant on a for review. petition

The defendant was 21 old when he met E.N. at a years pool at E.N., the home of a mutual old, friend. who was 17 party years flirted with the defendant. She the defendant was “cool” thought so she invited him to a at her friend’s house the party following night. the next and friends attended

The defendant night. party awhile, invited her to the defendant with E.N. for After talking de- his friends. The one of in his car with another a movie watch with a DVD two-door convertible drove a fendant Chrysler Sebring convertible the cars The defendant in the dash. built put player the movie. before watching they began top up car, and E.N. the defendant friend left the defendant’s After the defendant removed when E.N. did not object began kissing. re- when the defendant Likewise, did not she her object clothing. However, on his and a condom his moved penis. placed clothing her and in the seat laid E.N. back after the defendant penetrated said, want to do this.” E.N. “I don’t his penis, vagina E.N. a little bit defendant did not longer.” stop, replying, “Just this,” the defendant but did not “want to do that she stated again tried to sit that she did E.N. testified unsuccessfully up stop. defendant. After from the her stomach to and roll over on get away defendant and the had E.N. 5 or 10 minutes cry, began passed, told her her. The defendant intercourse with sexual stopped having balls,” for E.N. declined his him had “blue she request oral sex. her to perform of him con- that E.N. was on testified

The defendant during top if asked him he E.N. were sensual intercourse they talking. the next her and if he day. wanted calling planned relationship in a interested he was not the defendant said When relationship, him, him about how she and told off of E.N. became upset, got to continue E.N. wanted other had been hurt by guys past. her, and hold but in the car wanted him to stay kissing dressed. car and told her did not defendant get stay K.B. that and told into the house E.N. went back visibly upset of, had that the defendant had been taken she gotten advantage than once. M.B. “no” more her, she had said and that inside of said, that E.N. E.N., M.B. testified who was also crying. spoke not want to E.N. did had sex. I said no.” “I was We report raped. want she did not at that time because the the incident to police had out that she been her to find drinking. parents later, incident to E.N. Four police, reported days assault examiner The sexual examined at local she was hospital. detected a cluster of abrasions consistent with blunt force trauma in E.N.’s The examiner testified the location of the vagina. abrasions was consistent with consen- mounting injuries. Although out, sual sex could be ruled the examiner testified mount- are more found after nonconsensual sexual injuries ing commonly intercourse.

The defendant his conviction for one count of appealed the Court of In a divided affirmed Appeals. opinion, however, defendant’s conviction. dissented on Judge Johnson, one of the issues and concluded that the defendant should be given a new trial. We the defendant’s for review. Be- granted petition cause we are for new trial based reversing remanding upon misconduct, we elect to consider the defendant’s prosecutorial only the denial of his motion to sever the three arguments regarding whether the trial court’s referral to the rape charges, rape juiy instruction was sufficient to answer the juiy’s question concerning whether conduct can constitute post-penetration rape, whether the committed reversible misconduct during closing argument. of Charges

Joinder The defendant was tried on three in one joined charges I, Count a December incident with complaint: involving A.P.; II, E.N.; Count 2000 incident and Count August involving III, a 2001 incident L.B. The defendant was ac- Januaiy involving on Counts I and III. quitted by The defendant claims that the trial court erred when it repeat- denied his motions to sever the three into three edly rape charges trials. He that he confusion, separate argues prejudiced by juiy admission of evidence the unrelated improper regarding charges, and violation of defendant, his to silence. right According confusion resulted from the to disassociate jury’s inability the evidence for each and the “smear effect” of charges evidence the defendant’s to commit showing suggesting propensity date rape.

If the tried, related to E.N. had been the de- charge separately fendant that the State could not have admitted evidence of argues

397 other, 60-455, K.S.A. which accusations under two precludes motive, unless it crimes evidence admission of other proves or intent, ab- plan, knowledge, identity, preparation, opportunity, The defendant further mistake or accident. sence of argues because he could was violated self-incrimination his right against wanted, with- like he one of the charges, testify regarding only about he did not out a concern testify regarding why raising other charges. in one com- crimes as counts of multiple separate charging 22-3202(1), K.S.A. which is authorized provides:

plaint in the same com- or crimes be defendant “Two more may charged against if count for each crime the crimes information or indictment a separate plaint, both, are of the same or similar whether felonies or misdemeanors or charged, transaction or on two or more acts or character or are based on the same act or of a common scheme or transactions connected together constituting parts plan.” Barksdale, 498, (1999), v. 973 P.2d 165 sev- State

In 266 Kan. stated, inter alia: discussed. We erance was extensively addressed the has on numerous occasions its “This court throughout history are of the same or similar character so as to of whether crimes permit subject 389, 392, 26 (1891), Pac. 676 we stated: their In State v. 45 Kan. joinder. Hodges, one felonies be counts of ‘Several and distinct may charged separate separate information, the same where all of the offenses are of and the same charged evidence, character, trial, mode of the same kind of the same requiring general be The defendant and the same kind of may [Citations omitted.] punishment. time, the same counts of the information at one and tried all the several upon trial, discretion of the trial court.’ in one but all this rests sound judicial court. See State v. has reiterated times this Bagby, “This standard been many Gander, 88, 90, 176, 178, (1982); 551 State v. 220 Kan. 231 Kan. 642 P.2d 375, 381-82, 312 (1957); (1976); Brown, P.2d 832 State 181 Kan. P.2d 797 State v. 94, Warner, Powell, (1926); Kan. 120 Kan. 245 Pac. v. 98, (1898).” 266 Kan. at 507. 55 Pac. severance, we have addition- of denial of As to review appellate stated: ally in a trial is a will all a defendant be tried on charges single “Whether separate court, will not be disturbed and its decision within the discretion of the trial

matter of discretion.” a clear of abuse (Emphasis unless there is showing appeal (1995). Hill, added.) State Syl. ¶ one case where we have re- Our research has disclosed only versed a conviction after a trial court denied severance: State Thomas, Thomas, (1971). In P.2d multiple were filed from two unrelated and different stemming veiy charges incident, incidents. from one defendant was Arising charged murder, and unlawful of a robbery, first-degree possession pistol. from the second incident were Charges arising burglary, larceny, three counts of and three counts of forgery, uttering.

The two of were consolidated for trial. No in- groups charges struction was it to consider the evidence jury directing as to each case as to that case. only applicable

After the two of were not similar determining groups charges and that the order of consolidation constituted an abuse of discre- tion, we stated: “Even the trial court’s order of consolidation is said be an abuse of though

discretion, defendant still has the burden of showing prejudice requires reversal. Defendant that since his defense to the murder was that the says charge accidental, was he was to take the witness stand to shooting compelled explain result, the circumstances. As a defendant states he was forced to admit the forgery (he denied in the . . . and thus uttering charges any participation burglary), was in the of as an admitted his defense of acci- put position submitting, forger, dental the murder case. He claims this circumstance shooting destroyed any that the would credence to his claim that the of possibility [the give shooting was accidental. Whether would have believed defendant’s de- victim] absent the influence of the admissions de- scription shooting, forgery fendant, is not for It us to decide. must be conceded the have been jury may influenced, in the absence of instruction this unduly particularly regard.” 206 Kan. at 609-10. We concluded the defendant had carried his burden of as to proof and ordered new trials as to each prejudice separate group charges. Thomas,

In law our case and the since prior 30-plus years Thomas, numerous claims of abuse of discretion relative to judicial or denial of severance have been before Kansas joinder appellate courts. None have been successful. Barksdale, cited, involved two unrelated mur- previously

ders that were for trial over defendant’s In joined objection. Barlcsdale, we stated: (1) were not similar in that that the two murders

“The defendant argues crim- carried with it an additional felony Davis murder underlying aggravated not; (2) did Davis was a friend of inal that the murder sodomy Forgie personal defendant, was a was the cause of while Forgie stranger; strangulation murder; (4) death in the Davis a knife was death but not the cause of Forgie’s murder; murder, used in the Davis not a blunt instrument as used Forgie in order to both crimes the same evidence was necessary prove none of the witnesses were the same for both with the exception Campbell, Joe cases. that the crimes were “The is whether the trial court’s determination and, thus, was a decision with which no reasonable similar subject joinder cases, was the motive. The manner in which would In both robbery person agree. victim was killed was similar. Davis was and received each substantially strangled and received a blunt trauma a blunt trauma to the head. also Forgie strangled to the head as well as stab wounds. the defendant claims that strangu- Although death, it clear the evidence that lation was not the method of Davis’ actual from trauma have the method of both victims had been Blunt could been strangled. deaths as it whether died as the result of both was unclear Forgie strangulation, wounds, trauma, stab blunt or a combination of the three. Both victims were found face down and tied with cords. The two murders were committed within 9 months that of one another in the same in Wichita. While it is true neighborhood general witness, cases, it true that one was common to both is also Campbell, only Joe both cases the same mode of trial and the same land of evi- generally required dence, and resulted in the same kind of punishment. in “The facts and nature of the in this case are similar to those other charges 495, where we found to be In Cromwell Kan. [State [253 cases v.] joinder proper. (1993)], where both victims were 856 P.2d 1299 we found to be joinder proper women who lived alone and knew the defendant the fact that mature despite Hill, had between the murders. See 253 Kan. at 511. In State years passed (1995), in we found no abuse of discretion joining Kan. (1) in within a four cases where tire incidents occurred the same neighborhood month; (2) in two of the of around a the attacker was dressed similarly span incidents; (3) incidents two of the incidents involved while the other two rape, which the attacker was seen the victim while he was still some distance away residence; taken from each have altered his similar items were might plans; on their stomachs in each case the victims were instructed to roll over and In we found and the attacker on their heads. joinder Bagby, proper placed pillow some sexual act such as instance when each burglary preceded aggravated man described the assailant as a black and and the victims sodomy aggravated an ice 231 Kan. at 178. with a screwdriver or pick. 22-3202(1), and our case law from “Under the of K.S.A. requirements prior are not with which the defendant was the crimes charged Hodges present, trial and similar in mode of similar but also sufficiently factually sufficiently only that kind of evidence as well as we cannot required, punishment prescribed, say at that no reasonable would their 266 Kan. 508-09. person agree joinder.” Barksdale, herein, like the defendant to raise the sought require- ments for to the much of admission joinder higher requirements claim, of evidence under K.S.A. 60-455. We this rejected stating: “Nevertheless, test, viz., the defendant that we should a different argues adopt trial for offenses be where the other joinder separate may granted only crimes tried the same trial would be admissible under separate charged However, K.S.A. 60-455 as bad acts or crimes. this court has not so limited prior rule. We have commented that where the evidence of crimes joinder joined trial for would have been admissible under K.S.A. 60-455 in a separate prosecu tion, the defendant is unable to demonstrate when the crimes are any prejudice Cromwell, time, in a tried trial. See 253 Kan. at 509-11. At the same Kansas single 22-3202(1) case law and the of K.S.A. malee it clear that is not provisions joinder tire other crimes test set dependent upon being joined meeting admissibility 22-3202(1); 178-79; Brown, forth in K.S.A. 60-455. See K.S.A. 231 Kan. at Bagby, 382-83; Toelkes, [682,] [, (1934)]. Kan. at 684 33 [State v.] P.2d “While the defendant it that was error in this case to allow evidence of argues 60-455, each homicide because it was inadmissible under K.S.A. separate because such evidence was more than this assertion lacles prejudicial probative, Cromwell, In merit. we held that where but similar criminal are separate charges trial, in a evidence material each crime is admissible joined single independent hand, of K.S.A. 60-455. See 253 Kan. at 509. In tire case at tire specifically instructed: ‘Each crime the defendant is a and distinct offense. charged against separate it; must You decide each on tire evidence law charge separately applicable uninfluenced decision as to other by your charge. “The defendant’s contention value of tire evidence of one prejudicial crime its tire value and fails to outweighs probative begs recognize evidence of both crimes was admissible of K.S.A. 60-455. We con- independent clude that the trial court did not abuse its discretion in the two homicide joining 266 Kan. at 509-10. charges.” case, In this dissented from the Judge majority opinion Johnson in the Court of decision on the severance issue. He con- Appeals’ cluded that denial of an severance was abuse of discretion judicial character, because: The crimes were not of same or similar defense, (3) the three cases there trying together “jumbled” was no for consolidation of the persuasive argument charges, (4) some of the prosecution delayed filing rape charges them the weaker cases. A filed together strengthen no merit in these conclusions. this court finds the three counts herein are The facts underlying extremely occurred, as to what as to what similar—not but did not occur. only I: A.P. was an of the defendant. Count She went acquaintance residence and fell on his bed. She testified she to his awoke asleep as he was her. Also the incident was disrobing present throughout defendant, a friend of the who testified he saw and heard only consensual sex acts. The defense was consent. E.N.,

Count II: At a the defendant and with two party, along other went to defendant’s car to watch a movie. The persons, other left. The E.N. defendant and were the backseat persons and started E.N. consensual sexual testified engaging activity. that after she said no for the first time. The defense penetration, was consent and that consent cannot be withdrawn after penetra- tion. L.B.,

Count III: The defendant went to see former girlfriend. him She showed around the In die bedroom she backed apartment. bed, touched the and fell it. The defendant back qn up, edge of her. She testified she said no. The defense was con- got top sent.

There are also similarities in what did not occur. None of the three witnesses testified that the defendant used a complaining threats, her, made tied her beat acted in weapon, up, anger, to demean or otherwise her. what each injure Essentially, sought was a match. This oc- witness described complaining wrestling curred as to E.N. after she withdrew her consent following initial penetration.

Crimes sex crimes and against persons, particularly including children, crimes have the facts. No such crime variances in against is a clone of another. It is ironic that the in the law major change herein is in a with the and severance case joinder sought greatest of crimes as cases on this issue. similarity prior compared relative defenses” is inscrutable. The argument “jumbling the defend- defense to each count was consent. The jury acquitted came in the ant of two of the three counts. The conviction only 402

count with the mid-act withdrawal of consent. The Court of stated: Appeals opinion offense, that each crime is a and distinct and “The was instructed jury separate that

each must be decided of others. maintains charge independent Bunyard we cannot assume lack of tire fact that he was of two of prejudice by acquitted However, tire we find the to be evidence of the charges. acquittals compelling to differentiate the of evidence. jury’s ability applicability Bunyard argues led tire to believe he had for joining charges propensity acquain- tance We believe there is no basis for this statement.” State v. Bunyard, rape. 853, 864, (2003). Kan. 2d 75 P.3d 750 App. We find tire and foregoing reasoning persuasive agree. courts, which,

We are also the federal when faced persuaded ours, with a statute similar to in essence hold that of similar joinder crimes is the rule severance is As stated in exception. (9th 1980): United States 621 F.2d 951 Cir. Armstrong, ‘We have held that is the rule rather than that tire joinder exception is on tire burden defendant his denial of the motion to sever appeal following to show that was so that it the dominant joinder manifestly prejudicial outweighed concern with exercise of the court’s discretion to judicial economy compelled sever.” 621 F.2d at 954.

Likewise, the United States Court has held that error Supreme due to reversal if the error had a “sub misjoinder requires only stantial and effect or influence in injurious determining jury’s Lane, 438, 449, 814, verdict.” United States v. 474 U.S. 8 L. Ed. 2d 106 S. Ct. 725 a harmless error standard for mis (adopting defendants); see also United States v. 853 F.2d joinder Turoff, 1037, (2d 1988); Nevada, Cir. Mitchell v. 105 Nev. P.2d 1340 the Lane standard to (applying misjoinder Gorecki, claims one defendant based on United States v. against 1987]). 813 F.2d Cir. There is no evidence of such [3d influence or effect on the verdict rendered in the count in guilty E.N., that the volving especially given jury acquitted Davis, tire other two counts therewith. See State v. joined (2004) (the fact that the found some defendants not as to all demonstrated the guilty charges jury’s the evidence and each ability compartmentalize charges against defendant); Mitchell, 105 Nev. at 738 of sexual (finding acquittal cf. one victim and conviction of sexual assault assault count involving harmless). and murder of a second victim indicated error Howell, in State v. P.2d As we stated (1977), as to a defendant’s desire to some testify expressed all does not mandate a reversal of but not joinder. charges in the seat and To hold otherwise would the defendant driver’s put The burden is on the de- cause strains our court system. great man- fendant to show circumstances as to severance is why special dated. in dissent in the Court of

The comments Ap- Judge Johnson’s in about the and relative or weakness peals’ opinion age strength are and are not consid- the various counts speculation appropriate erations when issues for abuse of joinder-severance ju- reviewing We unaware of case law which mandates dicial discretion. are cases of or weakness be to- only equal strength may joined Further, the time between all three incidents occurred gether. span and, within the time over not year accordingly, span slightly for severance considerations. significant In we find the trial court did not abuse its discretion summary, in into three the motion to sever three counts denying trials. such a motion in this case is not separate jury Granting jus- tified statute or our well established case law. The joinder 22-3202(1) K.S.A. not “same or similar character” does language limit those crimes that are clones of each other. joinder only frustrate the Such a narrow would interpretation very purpose Moreover, statute. joinder suggested by interpretation would the defendant in control of defendant joinder/sever- place ance If he or she is with 10 residential issues. charged burglaries, be had as to each trials ostensibly, separate jury may by showing a door minor differences the crimes such as entering through window, taken or taken. time of or items day entry, differences, these minor defendant’s plus arguing By raising counts, severance would be re- desire to as to some testify only rule, Severance would become economy setting judicial quired. on its head. is the and severance the Our standard of rule exception. Joinder Barksdale, this is abuse of discretion. As we held

review on issue the trial decision that the is whether court’s crimes question similar and therefore was a decision with were subject joinder which would We answer that no reasonable person agree. and find that the defendant failed to demonstrate negative an abuse of discretion the trial court’s denial of his mo- judicial tion to sever the three counts and conduct three juiy separate trials.

Prosecutorial Misconduct

The defendant claims his conviction should be reversed due misconduct prosecutorial during closing argument. Generally, the defendant must to remarks to object prosecutor’s preserve However, if the the matter for remarks the de appeal. implicate fendant’s to a fair trial or to due the issue of right process, prose cutorial misconduct will be addressed without a contemporaneous 1157, 1164, 38 (2002). 272 Kan. P.3d objection. Doyle, First, “A is to of misconduct. two-step analysis applied allegations prosecutorial the court decides whether the comments were outside the wide lat- prosecutor’s Second, itude allowed in the evidence. the court must decide whether discussing error, is, the comments constitute that whether the statements plain prejudiced trial, the defendant denied him or her a fair jury against thereby requiring reversal. The second is a harmlessness for step particularized inquiry prosecutorial Tosh, 83, 1, (2004). misconduct cases.” State v. Kan. P.3d 1204 Syl. ¶ A misstatement of the law the denies the defend- by prosecutor ant a fair trial when the facts are such that the could have been juiy confused or misled the statement. State v. 273 Kan. by Henry, (2002). test, Under the first the defendant that prong complains misstated the law when she advised the that prosecutor the force of the the woman’s was sufficient penis entering vagina to constitute The defendant in the instant case did not rape. object when the stated: prosecutor “The law tells he committed a This is the time when the facts you rape. you put law, here, and I’m to tell a little bit about what’s not in what the going you

law does not the State to require prove. “It shows what is but are there certain you exacdy required prove, things to A are not victim is not back. A victim is not required. required fight victim, to become more of a to be beat or have the to be required opportunity inside the than the penis going more than the hurt actual rape, force of That’s enough. vagina. or restrain or tie to cause bruises or scratch up. “A defendant is required the State Kansas. under the law in her is his vagina enough The penis of of of force or a has to a bruise or black does it the State eye in here say prove Nowhere like that. scratch anything was committed without that the act of sexual intercourse “It has to be proven [A.P.], [E.N.], [L.B.], victim, under circum- in this case the consent of the That’s what has to be was overcome force or fear. stances in which she by proven.” added.) (Emphasis Later, stated: the prosecutor ... do I believe back there and ask “What need to do is yourselves, you go sexual inter- doubt that did not consent a reasonable having [E.N.]

beyond course, . . that sexual intercourse when overcome [she was] . and did happen the force of Mr. Bunyard. her, his in her. That’s “The has to be him on penis just top sticking force of added.) enough.” (Emphasis (“The s remark found that the Court Appeals law of the State in her is under the force of his penis vagina enough Kansas, Kansas.”) of the law rea- was an incorrect statement 21-3502(a)(l)(A) “K.S.A. 2002 clearly contemplates soning: Supp. (the that in addition to sexual intercourse penetration portion It is the victim must be overcome force or fear. equation), the crime of inaccurate completed pene- say 2d at 866. tration.” App.

However, went on to the Court of following Appeals apply of law was not three factors in that the misstatement concluding instructions, “(1) (2) the bal- to the defendant: the jury prejudicial (3) and s remarks ance of the closing argument, prosecutor during found 31 Kan. 2d at 867. The Court of the evidence.” Appeals App. stated the law and instruction pointed accurately “when statements including: closing argument, prosecutors during and the force of his he had the force of his [E.N. penis body himself that he forced he committed a “Do believe and] you rape,” decide,” “The issue is what have to and That’s only [her]? you or fear. Do believe sex without consent with force hap- you 2d at 867. After a reasonable doubt?” Kan. App. pened beyond evidence, concluded that the the Court of reviewing Appeals misstatement of the law was harmless error. 31 Kan. prosecutor’s 2d at 868. App.

We with the conclusion mis- agree panel’s prosecutor case, law. stated the Relevant to this is “sexual intercourse with a who does not consent to the sexual intercourse” person the victim is overcome force or fear.” K.S.A. 2004 “[w]hen by 21-3502(a)(l)(A). The misstated the law Supp. during the “overcome force or fear” el- closing argument by equating ement of with the act of sexual Mis- intercourse/penetration. the law is not within the wide latitude stating given prosecutors however, We do not that this miscon- closing arguments. agree, duct constituted harmless error under the second of the prong misconduct test. prosecutorial “In the second of the for misconduct step two-step analysis alleged prosecutorial court considers three factors to appellate determine if the mis prosecutorial conduct so the defendant prejudiced that a new trial jury against should be (1) (2) whether the misconduct is granted: whether the mis gross flagrant; conduct shows ill will on tire whether prosecutor’s the evidence part; the defendant is of such a against direct and nature that the mis overwhelming conduct would have little in the minds likely None of these weight jurors. three factors is Before the third factor individually can ever override controlling. factors,

the first two an court must be able to that the appellate harmlessness say 18, tests of both K.S.A. 60-261 and v. California, U.S. 17 L. Ed. Chapman (1967), Tosh, 2d 87 S. Ct. 824 have been met.” State v. 278 Kan. Syl. ¶ 2. factor,

Under the first this court compared whether tire misconduct “to whether gross flagrant asking ‘the statements to affect the objectionable [were] likely jurors ” Villanueva, State the defendant’s 20, 34, 274 Kan. prejudice.’ Lewis, P.3d 481 (quoting [1985]). P.2d 196 misstatement of the Additionally, prosecutor’s law must be considered the context of the instructions the court. 273 Kan. at 620. Henry, case,

Under the facts of this we conclude that the prosecutor’s misstatements that the force of the defendant’s into repeated penis the victim’s satisfied the force element of the vagina rape charge were to affect the to the defendant’s Al- likely jurors prejudice. stated the correct elements of though prosecutor subsequently defendant, the to be as the by only guidance proven, argued rape was was to what constituted the force the as juiy necessary instructions, of the law. The the misstatement juiy prosecutor’s fear,” had to that the victim be “overcome force or while stating or fear” element of did not define the “overcome force rape. Moreover, the as below this instructions discussed opinion, the the of did not instruct concerning rape sufficiently charge can occur under in Kansas by post-penetration rape stating a “reasonable time” to re- Kansas law and that the defendant has Thus, the to the of consent. we conclude that withdrawal spond misstatement the law the force of regarding prosecutor’s repeated element of was gross flagrant. factor, the a indifference to a court’s

Under second “prosecutor’s defendant, a acts of misconduct of or repeated rulings, mocking the conduct there are evidence of ill will and lack of such shows no ill will.” v. 276 Kan. 78 P.3d was State McHenry, (2003). While misstated the law con repeatedly element, the force no evidence record establishes cerning trial, the law. At misstated prosecutor purposefully law set forth in State court the State’s granted request argue Borthwick, (1994), 255 Kan. P.2d regarding to sustain a amount force rape charge during closing required Borthwick, held law In we that Kansas does not require arguments. victim the victim of other a to resist point becoming as assault crimes such or or to be overcome by battery physically restraint in addition to force the form of a beating physical 7. It forced intercourse. Syl. appears prose ¶ but the law set forth Borthioick cutor attempting argue off track and misstated law concerning woefully repeatedly got Thus, ill was under the force element of no will demonstrated rape. the second factor of the test. factor, we must whether the evidence

Under third consider nature the defendant is of such direct overwhelming against little in the minds that the misconduct would have had likely weight to a con- This case boiled down essentially credibility jurors. and E.N. what test between the defendant regarding happened no that she testified that she said E.N. post-penetration. wanted to and tried stomach, to sit and turn on her but stop up later, defendant did not until 5 to 10 minutes when she stop started to The defendant testified that she off of him cry. mid- got intercourse when he said he was not interested in a relationship. some evidence of abrasions were con- Although vaginal present, sensual intercourse could not be ruled out. examination of Upon record, we cannot conclude that the evidence the de- against fendant whether the victim was “overcome force” was regarding by so direct and as to have little in the minds overwhelming weight of the of the misstatements of jurors, particularly light repeated tire law the the “overcome force” by prosecutor concerning element of and the instruction which did rape jury accompanying the elements of in a fully case. explain rape post-penetration

Based on the s and misstatement of the prosecutor gross flagrant force element it is under during closing argument, entirely possible these facts that the could have concluded that the defendant’s continuation of intercourse after E.N. withdrew her consent was sufficient to establish without that E.N. was overcome rape finding such, force or fear. As we conclude that this misconduct prej- udiced the and We, denied the therefore, defendant a fair trial. reverse and remand for a new trial consistent with this opinion. Withdrawal of Consent After Consensual Penetration

Because we have remanded this case for a new trial on the re- versed we think it advisable to assist the trial court charge, remand. We therefore address defendant’s third upon issue on the of withdrawal of consent after consensual question penetration. deliberations, its “If During jury posed following question: someone allows but then no and he does not penetration, says stop, does that fit the definition of Please elaborate on the legal rape? law. If diere is elaborate.” Outside the [to] any presence the trial court discussed its answer with defense counsel juiy, the State. The State asked the court to answer and defense “yes,” counsel stated he would like for the answer to be “no.” The court advised defense counsel that with a “no” would be ab- responding if its choice “no,” were between solutely wrong “yes”and then would be die answer. “yes” court, counsel, with defense

The trial responded approval as “The definition of con- follows: jury’s 6, 7, 8, & 9. I elaborate cannot tained in instructions numbered further. Please reread the instructions.” three counts defendant was initially charged rape. He of two convicted of one charge, acquitted charges Thus, which deal with in this Instructions Nos. and we appeal. the victim’sinitialswere were identical Instruction No. except 7Nos. stated: different. Instructions and respectively (2) defendant, “In R. is with the crime Two Count Bunyard, charged Josiah defendant of The rape. pleads guilty. must “To this each of tire claims be establish proved: charge, following defendant, E.N.; R. had with 1. That the sexual intercourse Bunyard, Josiah 2. without of That the act of sexual intercourse was committed the consent E.N. fear; under circumstances when she was overcome force or by 3. act That this occuixed on about August Sedgwick County, Kansas.” instructions, “As in these means of the used sexual intercourse any penetration however is sufficient to sex male sex organ by organ. Any penetration, slight, constitute sexual intercourse.”

The defendant that the trial court’s failure to argues appeal (1) a as to whether can occur concrete give jury guidance rape after consensual when and under what circum- penetration, the consensual can rendered the stances become rape, penetration as to statute the defendant. rape unconstitutionally vague applied The decision was with the af- Court majority Appeals’ split, the defendant’s one count of and the dissent rape voting firming the basis that the three to reverse the defendant’s conviction on trial over the defend- were for charges erroneously joined inter- ant’s The and dissent that sexual objection. agreed under or fear is course when one force performed participant it matter fear at the initi- that does not if the force or exists rape; withdrawn; act and that a ation of the or it comes after consent is after sexual intercourse withdraw consent may pen- participant occurred, if with sexual intercourse etration has rape occurring withdrawn. with force or fear after consent has been continues the withdrawn consent The Court of stated because Appeals trial it did court issue was one of first not see “how impression, could have crafted an answer that would have satisfied the parties, while at the same time reflect the law.” 31 Kan. accurately App. However, 2d at 862. Court further concluded that Appeals the trial court answered the and de- jury’s question appropriately, clined to address the defendant’s constitutional because argument it was raised for first time on 31 Kan. 2d at 862. appeal. App. We also do not address the defendant’s constitutional argument that the statute as in- except say express provisions are not below terpreted vague. 22-3420(3),

Under K.S.A. a trial court is required respond for further information as to of the law or jury’s request part evidence. manner The and extent of the trial court’s how response, ever, rests in the sound discretion of tire trial court. Cor (2004). Under the circum dray, case, stances of we this conclude the trial court’s answer ato was insufficient to instruct the question posed by properly how to consider this case of first unique impression. prob lem with the trial court’s is that it failed to address the response asked jury. conclusion,

In this our the follow- analysis reaching begins two issues related raised the defendant: Was the evidence ing i.e., insufficient as a matter of law to a conviction of support rape, does the conduct, Kansas statute cover and rape post penetration (2) if can occur after consensual must the de- rape penetration, fendant have a reasonable time which to act?

Consent Withdrawn After Penetration

The defendant that the Kansas statute does not in- argues rape clude circumstances where is consent revoked after intercourse has The defendant the statute to begun. interprets rape apply only the initial into the that if die woman con- entiy vagina argues sents to the initial can there be no even if is consent entry, rape withdrawn the before act of coitus is completed. According defendant, statutes, sexual the K.S.A. 21-3517 for sexual battery or K.S.A. 21-3518 for sexual or another battery battery, aggravated criminal should statute if intercourse is continued after the apply consent, woman revokes her the is but statute not violated. rape

411 statute, of a the of this issue interpretation requires Analysis Maass, novo review. State v. of law to de is a which subject (2003). 330, rule of 328, 64 382 The fundamental Kan. P.3d the intent of the is that governs legislature statutory interpretation An court if that intent can be determined. presumes appellate of the its intent articulated through language legislature must court If is statute. unambiguous, language plain what as written without effect to the determining language give Inc., Taxi, not be. v. Yell Bell law should or should Smith (2003). 305, 307, 75 P.3d 1222 Kan. of the accused. are to construed favor

Penal statutes be strictly A court should are their words ordinary meanings. Ordinary is found in the lan- not read a statute add something that is found of the or to delete statute something clearly guage Kitzman, 240 Kan. of the statute. the language (1986). 727 P.2d 21-3502(a)(l)(A) “[sjexual in- as defines

K.S.A. Supp. inter- does not consent to sexual with a who tercourse person or fear.” . . victim overcome force . course [w]hen “ female sex or- of the intercourse’ means ‘Sexual any penetration or the male sex Any finger, organ any object. penetration, gan by to constitute sexual intercourse.” however is sufficient slight, 21-3501(1). K.S.A. how-

The defendant focuses on “[a]ny penetration, phrase intercourse,” sexual is sufficient to constitute ever claiming slight, the initial limits that the statute entry penis penetration While we into the woman’s or other object vagina. disagree he finds defendant’s narrow definition tire support penetration, in at least two states. that consent North have concluded Carolina may

Maryland If consent is to the initial be withdrawn penetration. only prior cannot be the defendant after the initial withdrawn penetration, acts are continued even if the sexual convicted against 684, 414 State, Md. Battle v. will force fear. victim’s 296-97, (1980); 254 S.E.2d 297 N.C. A.2d 1266 State v. Way, acts to of (1979) withdrawal of consent 760 multiple (limiting or cita- intercourse). Neither of these courts provide analysis 412

tion to to their conclusions. We to follow decline authority support and North Carolina. Maryland

The defendant’s narrow definition of fails to com- penetration with the of sexual inter- port ordinary meaning understanding course, which includes entire sexual act. Under the defendant’s definition of intercourse ends at same penetration, begins time. Rather intercourse, than the definition of limiting phrase however is sufficient to constitute sexual “[a]ny penetration, slight, intercourse” establishes the threshold of evidence necessary that intercourse has v. occurred. See State 35 Conn. prove Siering, 644 A.2d 958 that die App. (concluding phrase however com- “[p]enetration, [is sufficient] slight, . . . intercourse” the statutes not did mean that inter- plete course initial When K.S.A. completed upon penetration). 21-3502(a)(l)(A) 2004 is construed in accordance Supp. words, of its the defendant’s fails. ordinary meanings argument 21-3502(a)(l)(A) K.S.A. all nonconsensual Supp. proscribes sexual fear, intercourse that is force or accomplished by just Thus, the initial a be convicted if penetration. person may consent is withdrawn after die initial but intercourse penetration is continued die use of or fear. force

Our conclusion that occur after initial rape may penetration with the of states that have addressed the issue aligned State, 77, See McGill v. 18 P.3d 82-84 post-penetration rape. (Alaska 2001) the trial court’s instruction that con App. (affirming sent could be withdrawn after the initial In re penetration); John Z., 761-63, 756, 29 Cal. 4th 783, 128 Cal. 2d Rptr. California court decision Peo (overruling prior appellate Vela, 237, [1985], Cal. 3d 218 Cal. which ple App. Rptr. held that consent be withdrawn before the initial may only pene tration); 180-83; Robinson, 35 Conn. at State v. Siering, App. (Me. 1985) A.2d 1069-71 a definition for sexual (analyzing 21-3501[1]); Crims, intercourse like K.S.A. State v. 540 N.W.2d 860, 865 (Minn. 1995) does not become App. (concluding if the victim consents to legal impossibility initially penetration); (S.D. 1994) 521 N.W.2d Jones, (declining adopt 5/12-17(c) the Vela also Ill. (2004 see Stat. ch. 720 analysis); Comp. or to sexual (“A consents who penetration initially person Supp.) to sexual have consented not deemed to conduct is pen- sexual consent after he or she withdraws that occurs conduct etration or conduct.”). sexual of that sexual the course penetration during Time to Withdraw A Reasonable can occur after con- that even if contends

The defendant cease that he did not failed to the State sensual prove penetration, E.N. withdrew time after within a reasonable sexual intercourse Z, Court 29 Cal. 4th In re her consent. Relying upon John withdrawn, consent is found continuing “[w]hen Appeals and con- 10 minutes is not reasonable for to sexual intercourse 2d at 859. The stitutes majority opinion rape.” App. must decide— the issue we the defendant’s argument presume a time to act on is entitled to reasonable whether a defendant after consensual withdrawal of consent victim’s penetration. Z, three times that the defendant In re the victim told In John home,” for an the intercourse continued “needed to but she go told the defendant 5 minutes after the victim first estimated 4 to 29 Cal. 4th at 763. The defendant she needed to home. argued go intercourse, the male an initial consent to that in cases involving with- of time in which to a reasonable amount should be permitted The de- an to intercourse. draw once the female raises objection fendant reasoned: “ intercourse, a male’s die act of sexual urge reproduce essence of primal ‘By a male a female and the law to It is therefore unreasonable for expect

is aroused. her withdrawal of consent. intercourse to cease sexual immediately upon having natural, a reasonable amount of time that the male be It is fair just only . . . .’”29 Cal. 4th at 762. his which primal urge quell Court the California with this In Supreme disagreeing argument, for lack from found authority supporting apparent apart of its statute language theory, nothing “primal urge” intercourse was entitled that the defendant persist suggested find went on to her consent. The court his victim withdrew once time” the “reasonable that even if it was to argument, accept withdraw but refused time to defendant was despite given ample to ex- The court declined the victim’s resistance objections. or recommend instructional plore language governing point time at which defendant cease once must intercourse consent 29 Cal. 4th withdrawn. at 763. reluctance to dissenting opinion questioned majority’s

flesh out what constitutes a reasonable time: “The relies Z.’s failure to desist But it does not heavily immediately. John tell us soon been how would have soon Ten seconds? enough. A minute? Is the same force?” 29 as Cal. Thirty? persistence thing 4th at 767.

The of in Court decision this case seems to assume that Appeals’ a should defendant be a reasonable of time amount to desist but that concludes continuation for an additional 5 to 10 minutes once consent withdrawn was unreasonable. A recent law review In re article the California in Court’s failure suggests Supreme John Z what to constitutes a “reasonable time” leads to the dis- suggest result that men are to control their sexual turbing expected urges not of withdrawal consent. eventually, although immediately, upon Notions Womanhood and the Palmer, the Antiquated Myth of of Male: Should Be a Crime Unstoppable Why Post-penetration Rape Carolina, in North 1258, (2004). 82 N.C. L. Rev. 1277 In re Z case this relied majority opinion upon John that the defendant not did within a reasonable time finding stop consent, after the withdrawal of but failed to discuss the California Court’s clear of Z’s that he was Supreme rejection argument John entitled to a reasonable time in which to act after consent was withdrawn. the did not state that a Although explicitly defendant is entitled to a reasonable to continue inter- period course, Note, was idea its See Acquain- implied through ruling. “No,” tance Consent: “No” Means But What Rape Degrees of Mean?, Does “Yes” 2341, (2004). 117 Harv. L. Rev. In consent, of consensual case intercourse and withdrawn we defendant should be entitled to a reasonable time agree in which after to act consent is withdrawn and communicated to However, the defendant. we conclude that the should deter- mine whether the time between withdrawal of consent and the of intercourse was reasonable. This determination interruption case, must be based facts of each into upon particular taking was withdrawn. We believe the manner in which consent account our of this conclusion balances rejection primal urge theory per facts and circumstances se with our recognition unique each case. individual that the defendant’s the facts of this case establish

While may in fear or of intercourse the victim forc- continuation by placing minutes well a victim to continue for to 10 was beyond ing time, is a we reiterate that this determination reasonable juiy We, thus, to for the trial court or the courts decide. not appellate had that the trial court a instruct conclude duty occur law and that the can under Kansas post-penetration rape time” the withdrawal of has a “reasonable defendant respond consent. trial to follow PIK we have advised strongly

Although judges instructions, that when faced with novel we have also advised case, in this a trial such as the one court “should question malee or addition” as is not covered hesitate to such modification Ransdell, 2d Hibbert v. Kan. PIK instructions. App. 331-32, (2001). P.3d rev. denied 272 Kan. 1417 The trial first court this case with a impression presented circumstances, the of this state. Under these courts by appellate PIK the did the best he could the instruc- trial judge by following However, the the PIK committee had not considered tions. ques- court, case, the trial there- tion in this and the raised by response fore, the not address the raised did by jury. directly

We have additional instructions note other courts approved such the in to similar as juror response questions: following in and one or the other a sexual intercourse consensually engages “[I]f couple mind, of mind of his or her and communicates the revocation or change changes consent, the and the other continues the sexual intercourse by compulsion partner mind, it The critical the his or her then would be of who changes rape. party Robinson, 496 A.2d at 1069. there is the continuation under element compulsion.” victim her and there exists consensual sexual intercourse changes “[I]f alleged revocation of mind of consent and mind and communicates the or change the victim other continues the sexual intercourse by compelling through person it the use force then would be sexual assault first of degree. consent it’s a withdrawal of someone their but “This is not just withdrawing sexual continues to the other and then intercourse by consent communicated the victim the use of So it’s not force. a withdrawal of through compelling just consent, it’s also a of consent communicated withdrawal to the other and person then a use of force to continue sexual intercourse.” Conn. compelling Sieving, n.4. at 179 App. answer in trial court this case was given by partially However, correct to the elements of the com- by referring rape. answer addition to forth elements plete setting have should indicated to the occur even rape may though initial consent but if the consent penetration, only defendant, is withdrawn and communicated to the tire defendant time, does not within reasonable and the sexual inter- respond tire course continues where victim is overcome force fear. A by time reasonable tire circumstances of each case and depends upon an reasonable standard be judged objective person applied trier of fact on a basis. case-by-case of the Court the district court is Judgment Appeals affirming reversed, reversed. The district court is and the case is remanded for a new trial.

Beier and Gernon, JJ., participating Brazil, S.J., assigned.

McFarland, I C.J., dissenting part part: concurring from dissent tire which holds drat portion majority pros- ecutor s misstatement the law and denied prejudiced dre defendant a fair trial that his conviction thereby requires be reversed remanded for a new trial. issue,

On tire misconduct which as serves the sole prosecutorial convictions, basis for the reversal of the I majority’s agree Tosh, reliance Kan. P.3d majority’s (2004), as the correct framework for such analytical reviewing however, I claims. believe that the has misapplied Tosh framework to facts in tire this case. In the a two first

The Tosh framework has reviewing step, steps. s comments .are outside whether the decides court prosecutor con- the evidence. latitude allowed wide majority discussing law misstated tire and that that the cluded “[misstating in clos- latitude to not within the wide the law is prosecutors decision on I majority’s agree completely arguments.” ing this point. a court decides

In the second of analysis, step reviewing the defendant the statements whether jury against prejudiced factors, which are him her fair trial. Three none of and denied or a (1) misconduct is on this whether the bear inquiry: controlling, (2) on the the misconduct shows ill will and whether flagrant; gross the de- and whether evidence against part; prosecutor’s that the mis- a and nature fendant is of such direct overwhelming in the minds of the would have little conduct jurors. likely weight 83, 2. 278 Kan. ¶Syl. fla- factor, seeks to the first define

As to gross in State v. Vil- it misconduct to found language equating grant Lewis, lanueva, and State (2002), 274 Kan. 49 P.3d 481 94, 98, (1985), 238 Kan. P.2d 196 where the court parenthet- and fla- whether is said that misconduct gross ically deciding “ ‘the statements is whether objectionable grant, ” to affect the defendant’s prejudice.’ [were] likely jurors was affect the whether misconduct While likely determining test, of the Tosh must of we tire cornerstone the second prong those as decide whether tire misconduct also gross flagrant, are understood. terms commonly view, can

In we look ordinary meaning my simply some- us. “Gross” describes terms guide “gross” “flagrant” “ of inexcusable that is noticeable because usually thing ‘glaringly “” measure; al- of all badness or ‘[o]ut beyond objectionableness,’ shameful; a lowance; as dereliction duty, gross gross flagrant; . conduct as . . Such carelessness gross negligence. injustice, ” v. Kansas State is not to be excused.’ University, Jones New Webster’s Collegiate (quoting Dictionary ^[1973] and Black’s Law Dictionary [6th ed. misconduct” as used in context employment 1990] “gross 418 statutes). law “Gross” ais term that

security modifying “empha- or . . size^] of of- extremity [and] intensity. suggests magnitude fense or that cannot be overlooked or condoned.” The failing American of the (1971) 498 Heritage Dictionary English Language as a for (discussing “gross” synonym “flagrant”).

The term a listed for describes “flagrant,” synonym “gross,” that is bad or and “so something “conspicuously objectionable;” inconsistent with what is or as to obviously right proper appear abe of law or Webster’s Ninth New flouting morality.” Collegiate (1991). 468 Like its Dictionary synonym “glaring,” “flagrant” of what “stress[es] cause for concern or conspicuousness gives offense. . . . hut often makes the flagrant stronger implication as a moral offense rather than an act of miscalculation wrongdoing The American ineptitude.” Heritage Dictionary English (1971) as a for “fla- Language (discussing “glaring” synonym grant”). therefore,

The term denotes a “gross,” higher degree impro- misconduct, than while concerns mis- priety ordinary “flagrant” conduct that is not the result of mistake or but instead ineptitude, is so inconsistent with well-settled law that it blatantly evidences a effort to the law. purposeful ignore mind, record with these I do not find Reviewing concepts misstatements of the law to be prosecutor’s “gross flagrant” misconduct. At the time made, the misstatements were no case law existed for the rule that the mere force of the into the penis vagina cannot constitute the element of force under the crime of rape. Thus, the statement was not so to a well- conspicuously contrary settled of law that it could be said the point “flout- prosecutor the law in the misstatement. Morton, See State v. ing” making 575, 585, Kan. (2004) 86 P.3d 535 that an (noting experienced should have been and was aware of numer- apparently ous cases error that can occur finding conveying premeditation instant). in an there is no evidence these remarks were a

Similarly, purposeful misstatement of the law—a point majority implicitly recognizes Intent, a lack of ill thereof, will. or lack is a relevant finding consideration in whether conduct is deciding gross flagrant. Dixon, 563, 592, P.3d See, 279 Kan. e.g., fair trial where of defendant’s violation right prose (“flagrant” contact cutor intended only guilty attorneys, imply people basis); cause to infer State and intended to guilt (in evaluating Broyles, that was and court considered whether conduct gross flagrant, be a to counter comment to merely misguided attempt appeared Graham, 388, 397, 799 247 Kan. P.2d a defense State v. argument); (1990) assert fact as true which 1003 misconduct to a pros (gross false); Murrell, v. 215 Kan. 523 P.2d ecutor knows to be State (1974) . . . 348 and with ap (“gross fraught prejudice” especially in cal where the has comments making plies prosecutor persisted the and State culated to inflame passions prejudices jury); Dill, 67, 76, (1979) (conduct 2d is v. Kan. P.2d App. “[ejven and an where gross flagrant experienced prosecutor that is knows” addiction to narcotics insinuating improper). The in were not misstatements of remarks this case intentional law, rather, but the result an drat the to be of mistake appear inept of the that does arose out the effort malee force legitimate point infliction of not the violence. require an The fact that the statements neither prosecutor’s prompted counsel nor the also indicates by interruption by judge objection that were not misstatements or offensive they conspicuously glaring I that of either not remove the the lack does (though recognize review). See 794 P.2d misconduct from our People Rodriguez, (Colo. 1990) is factor lack objection (recognizing misconduct, as lack of consider objec- examining prosecutorial that demonstrate defense counsel’s belief was tion may argument not overly damaging). the next I the analysis step,

Taking disagree gross flagrant de- that the were to affect the misstatements likely jurors reasons, that miscon- fendant’s the prejudice. majority part, the because of two duct was by flagrant prob- gross the instructions did not lems the instructions: jury jury thus, the the or fear” element of define “overcome force rape; by the as to what constituted force was had only guidance jury law; misstatement instructions were insufficient jury on the issue. post-penetration rape

With to the fact did instructions not define jury respect force,” element it of “overcome must be noted all of the by instructions the trial court elements by concerning 57.01, were from PIK 3d Crim. defense straight by requested counsel, and never There is to. no claim objected appeal by defendant that the received incorrect oral written in- jury Moreover, structions from court. sees although the fact the instructions did a not definition significance provide element, of the “overcome force” force is a used and widely term does definition. See readily comprehensible require Norris, (1979) (term which used and which is need not have widely readily comprehensible instruction). a defining the idea that the the mis-

Additionally, prejudiced by statement is contradicted on the other two acquittals The facts the three counts are charges. underlying extremely occurred, occur, similar both as to what as well as to what did not with element of force. As the especially respect notes, each of the victims described her resistance to Bun- opinion conduct as match. None of the victims yard’s essentially wrestling threats, testified that he used a made tied her beat weapon, up, her, in acted to demean or otherwise her. anger, sought injure similar, Because the facts were so and the misstatements at issue victims, concerned the element of force all three to respect the the two other cases a clear indication the acquittals provide the misstatements did the defendant. prejudice juiy against Furthermore, the misstatements were not under the significant event, facts of E.N.’s case. Under both versions of the consent was withdrawn the intercourse. of contention cen- during point tered on there whether was forcible continuation intercourse after facts, consent was withdrawn. In E.N.’s version the her as she was him in under the struggles against Bunyard pinned tight confines of the backseat of his two-door convert- Chrysler Sebring ible sufficient evidence of forcible continuation of the provided contrast, intercourse above and mere In Bun- beyond penetration. version, at all. Under Iris forcible continuation had no version yard’s encounter, was control the himof was on E.N. during top fact, did, in end ended, and she intercourse the and when whether Thus, that it continue. desired when she no intercourse the longer alone, in her of his not the force whether or vagina, standing penis not a element was the force constitute to simply was sufficient issue. significant that the failure the conclusion take issue with

I also majority’s that with additional instruction the to post-penetration jury provide in deter- is withdrawn is consent can occur when significant the force about whether the misstatements jury. prejudiced mining consent can be about whether had a the jurors Although the court asked their after withdrawn request penetration, This law, elaborate.” if there is elaborate on [to] any “[pjlease no law on the there was shows possibility jury anticipated have to re- therefore, and, issue might anticipated they jurors Moreover, demon- their verdict the issue themselves. solve guilty instruction of additional that even the absence strates jurors rule with the to, did, the issue consistent resolve able were that consent had concluded for announced they majority, would have withdrawn after cannot be necessarily they penetration, Therefore, instructed had the been Bunyard. acquitted would the outcome after can be withdrawn consent penetration, and, thus, is shown. no different not have been prejudice the combination I also prejudiced Bunyard disagree time to had a reasonable that he instruct the of the failure to consent, con- the misstatements the withdrawal of respond he did not defense Under force. respond Bunyard’s cerning E.N. who ended it was contended of consent —he withdrawal intercourse for Thus, or not he continued whether intercourse. an issue was not withdrew consent time after E.N. an unreasonable to the defense relevant theory. Tosh, courts to the the function of it is

As we said appellate effect of and the involved of seriousness the likely consider degree case a whether when misconduct particular deciding prosecutorial case, the misstate- Tosh, this Kan. at 93-94. In reversal. merits involve a ordinary did not beyond ments impropriety degree misconduct, were not so inconsistent with well-settled obviously law, law that it can be said the and prosecutor flouting case, under the facts of this were not to have unique likely any reasons, effect on the For these I would hold that prejudicial jury. s misstatements of the law prosecutor during closing argument did not amount to and misconduct. gross flagrant

The second factor in the second of the Tosh step analysis poses of whether the misconduct ill shows will on the question pros- ecutor’s The answered this part. majority question negative, and I would that the record is absent indication of ill agree will.

The third factor in if the misconduct determining prosecutorial so the defendant a new trial prejudiced jury against requiring of “whether the evidence the defendant poses against is of such a direct and nature that the misconduct overwhelming would have little Tosh, the minds of the 278 Kan. weight jurors.” 83, Tosh, 2. As stated in before this factor can “ever” override Syl. ¶ the other two factors will) and ill (gross flagrant reviewing court must be able to that the harmlessness tests of both K.S.A. say (inconsistent 60-261 with substantial v. Cal- justice) Chapman 386 U.S. 17 L. (1967) (error Ed. 2d 87 S. Ct. 824 ifornia, harmless a little, reasonable doubt in that it had if beyond any, trial), likelihood of at result have been met. having changed 278 Kan. at 97. concludes that the evidence whether regarding

E.N. was “overcome force” was not so direct and by overwhelming that the misstatements would have had little in the minds weight course, Of cases, this is often the case in jurors. cases; date the evidence particularly acquaintance rape type boils down to a contest between the victim and the de- credibility However, fendant. in order for misstatement of the law the by error, to be reversible it is not prosecutor enough simply say evidence was For a misstatement of the law to consti- conflicting. error, tute reversible the facts must be such that the could have been confused or misled the misstatement. State v. Henry, (2002) (a misstatement of the law denies the defendant his or her to a fair right have been confused that the could facts are such when the trial jury statement). misled or by case, was not the facts of this under jury

In my opinion, s misstatement. confused misled or by prosecutor was in the victim’s his mere force of whether vagina penis defense, critical to force was not to constitute sufficient Bunyard’s version of case. The victim’s issue in the it a nor was significant was continued that intercourse to establish was sufficient by events was a other than defense while mere force Bunyard’s penetration, no con- there was events which version of different completely force after consent intercourse tinuation of the by withdrawn — have misled the could not misstatement otherwise. The jury had the mis- have been the same case, verdict would and the this 658, 671- Redford, made. statement not been Cf. force or fear (1988) (where defense by than that version of events different was a given completely or fear consent, of the force omission victim, based on and was error). harmless instructions was from the element jury fact that the reliance on the I majority’s Lastly, disagree in a the elements did not instructions explain fully juiy situation, to conclude consent withdrawal of post-penetration the third fac- error under reversible constitute the misstatements was a novel issue of this As tlie tor. acknowledges, given he could did the best the trial first responding judge impression, question. jury’s the with- resolved said with It can also be juiy certainty (cid:127) therefore, and, the outcome consent issue drawal of correctly had the been different even have been would not provided this additional failure to If the additional instruction. provide case, of this on the outcome have had no effect could instruction reversal. toward to tilt the scales cannot serve that failure certainly reasons, the entire record For all the foregoing made of the law the misstatements case, hold that I would of the Tosh the second in this case do not step satisfy was not a was not The misconduct flagrant, gross analysis. little will, have had and would jurors’ of ill weight product the defendant did not The misstatements minds. prejudice little, were harmless a reasonable doubt because had beyond they would, therefore, if likelihood of the result. I affirm any, changing tire conviction. reviewed all the the defendant and

Having arguments posed by the entire record I would affirm the defendant’s con- appeal, viction. in J., dissenting part concurring part: join

Luckert, I Chief McFarland’s dissent. I concur Additionally, although Justice can occur I majority’s holding rape post-penetration, dissent from the conclusion that a defendant who is majority’s with 21-3502(a)(l)(A) under K.S.A. 2004 “is charged rape Supp. entitled ato reasonable time in which to act after consent is with- drawn.”

The does not how a should “rea- majority explain juiy interpret sonable time” when a defendant is under K.S.A. charged rape 21-3502(a)(l)(A), which the State to Supp. requires prove victim was overcome force or fear. There are two read- possible is, The anof ings majority holding. presence ambiguity itself, both of the troubling. Additionally, potential interpretations are problematic.

Under one a reasonable interpretation, majority, by allowing act, time to be is suf- may implicitly recognizing persistence ficient to of force after has satisfy requirement penetration Yet, occurred. would reverse the conviction in this majority stated, case because the “The force of his in her penis is this under the law of the State of Kansas.” Does vagina enough mean that tire contact inherent intercourse cannot sat- physical the element of force when there is no consent before isfy penetra- tion but be sufficient force to constitute when the consent may is withdrawn is trou- post-penetration? potential dichotomy bling.

The alternative is even more If the reading troubling. is read to more force than mere opinion require persistence, effect of tire is to a defendant a safe harbor of “rea- ruling grant sonable time” which the defendant exert this during may higher of force or strike fear in the victim. degree if, that a defendant has committed after con- I would hold withdrawn, the act of intercourse continues as the result of sent with the elements defined or fear. This is consistent force holding 21-3502(a)(l)(A). The court should not K.S.A. ju- Supp. time in which com- add a defense reasonable allowing dicially mit rape.

Case Details

Case Name: State v. Bunyard

Court Name: Supreme Court of Kansas

Date Published: Apr 28, 2006

Citation: 133 P.3d 14

Docket Number: 88,546

Court Abbreviation: Kan.