State v. Bunyard

(75 750) P.3d 88,546 No. Bunyard, R. Kansas, Appellant.

State of Appellee, Josiah 29, filed 2003. Opinion August Monnat, Daniel E. Chartered, Wichita, Monnat & Spurrier, and A. Paige Nichols, Lawrence, for appellant. Isherwood, K. Foulston, assistant Boyd district Nola district attorney, attorney, Kline, and Phill for attorney general, appellee. Before Marquardt, Pierron and P.J., Johnson, JJ. Marquardt, R. his conviction for Bunyard appeals J.: Josiah affirm. one count of We

In was with the February of E.N. Bunyard charged and trial, two other women. At E.N. testified that in August E.N. was at the home of 17-year-old and Kristen Bloom Megan where she met E.N. and talked and 21-year-old Bunyard. Bunyard tried to remove a bit. E.N. testified flirted Bunyard playfully she him to suit but after asked her repeated attempts, bathing top, incident, she In of that because became uncomfortable. spite stop friends and the invited and his to return E.N. Blooms Bunyard for a next evening party. “a few wine at the

E.N. testified that she consumed coolers” E.N. her to the next testified that asked Bunyard evening. party him watch his car to a movie. She A mutual agreed. accompany E.N. and sat the back seat. friend went with them. Bunyard his her. friend allowed arm around After their E.N. put car, E.N.’s out of removed clothing began got E.N. her kiss her. kissed while he removed clothing was her breasts. E.N. testified that she with touched “okay” she with him or but kissing okay removing clothing a con- her breasts. removed pants, put touching dom, and laid down on the car seat. E.N. said that she did E.N. with but not not want to have intercourse she did Bunyard, say to him it. about anything himself’ on her and his

E.N. testified that “forced Bunyard put her At that E.N. testified that she told inside point, penis vagina. “I this. make this.” don’t want to do Please don’t me do Bunyard, E.N. estimated that she told to few seconds” “[a] Bunyard stop after he inserted into her did not Bunyard stop, penis vagina. E.N., E.N. and told a little bit told again Bunyard longer.” “Just him not she did not want to have intercourse with but he did E.N. to sit and over onto testified she roll up stop. attempted could stomach but she was unable to. E.N. testified that she her move, started to but did not the intercourse. E.N. Bunyard stop do and told “I don’t want to hurt. Please don’t cry Bunyard, get me.” this to for 5 10 minutes

E.N. testified that the intercourse lasted to that she before per- Bunyard finally stopped. Bunyard suggested E.N. sex on him. E.N. did not form oral Bunyard got agree. vehicle. dressed and exited the and told and Kristen

E.N. testified that she Megan crying, what E.N. did want to call because Bloom police happened. that she drink- was afraid would find out had been she her parents E.N. told her and she the incident ing. eventually parents reported to the police.

E.N. went to the after the incident. Several ab- hospital days rasions were in found area. The nurse who examined genital E.N. testified that the abrasions were consistent with blunt force trauma which would be sustained in a mounting position. the nurse testified that such could also occur con- injuries during sensual sexual intercourse. testified that met, on the first E.N.

Bunyard night they persisted in to for a ride his car. He denied to remove asking go trying Instead, E.N.’s suit he testified that E.N. bathing top. repeatedly tried to remove his hat. described E.N.’s actions as “wres- Bunyard with him. tling” testified that on the Bunyard E.N. evening party, again

asked to for a ride in his car. and two of Bun- E.N., go Bunyard, friends into the car and went for a ride. yard’s testified got that E.N. “reached and started me and up kissing my grabbing chest.” testified that at that he the car and point, stopped in the back seat with E.N. He and E.N. got 15-20 began kissing minutes into the movie. He claimed that E.N. asked the other men out of the car. get admitted that he removed his and E.N.’s shirt. He tes- tified that E.N. removed her own testified that pants. Bunyard E.N. never him told and that she never said she did not stop, want to have intercourse. E.N. was on According Bunyard, top of him the intercourse. testified that E.N. asked during him if he was interested and if he would having relationship call her the in the following day. Bunyard responded negative E.N. discontinued the intercourse because she was upset. Bunyard testified that his entire encounter with E.N. was consensual.

A convicted of the E.N. and ac- Bunyard rape involving him on the other quitted two other rape charges involving women. was sentenced to 221 months’ incarceration. his conviction and sentence. Bunyard timely appeals Evidence Sufficiency of case, of this circumstances claims under unique him a rea- found factfinder could have no rational beyond guilty E.N. doubt of sonable raping attacked, is the evidence the standard of

When sufficiency evidence, whether, of all the viewed in after review of review is court is most favorable prosecution, appellate light could found the defendant that a rational factfinder have convinced Zabrinas, v. a doubt. State reasonable guilty beyond 441-42, 24 P.3d a after that E.N. was until willing

Bunyard argues participant occurs at the occurred. contends penetration rape initial not at all. also contends that time of or penetration, later can be no even if a withdraws consent. there party 21-3502 defines K.S.A. 2002 as: Supp. “(1) does sexual in- Sexual intercourse with a who not consent to the person

tercourse, circumstances: under any following “(A) the victim is force or fear.” When overcome by 21-3501(1) as:

K.S.A. defines “sexual intercourse” or female sex the male sex any organ by finger, organ “[A]ny penetration sexual inter- however is sufficient to constitute object. Any penetration, slight, course.” be withdrawn after The issue whether consent may penetra- state; therefore, first in this case law from tion is one of impression other instructive. jurisdictions State, 675, 683-84, (1980), A.2d 1266

In Battle 287 Md. held that must the Court of consent precede Appeals Maryland words, en- In other if a woman to a sexual consented penetration. intercourse, counter, even to and consent is withdrawn prior did sexual she not consent to intercourse. penetration, if the consent she consents withdraws prior is no there following penetration,

In case than law from other Maryland, reviewing jurisdictions that the has not other we conclude Battle been holding adopted fact, the re- courts. In Court of Connecticut Appellate specifically an identical to jected argument Bunyard’s.

858

In v. 173, (1994), 35 Conn. Siering, 644 A.2d 958 App. defendant that if there is consent at the moment of argued pene tration, withdrawal of consent and continuation of subsequent intercourse force cannot convert in consensual accompanied by tercourse into In this the defendant noted rape. making argument, that Connecticut law defines “sexual intercourse” as penetration, however 35 Conn. at 180-81. The Connecticut court slight. App. stated that the defendant’s of the statute would interpretation pro duce bizarre results. 35 Conn. at 182. The court concluded App. that a victim withdraw consent after has occurred. may penetration 35 Conn. at 184-85. App. Robinson,

In State v. 1067, (Me. 496 A.2d 1985), 1070 the Su- Court of Maine intercourse, found that preme ongoing Judicial victim, consented to becomes when and if initially victim submits to the sexual assault because of force or physical fear. Vela,

We note that cites 172 People 237, Cal. 3d App. (1985), 218 Cal. where the victim consented to inter Rptr. at course the time of but later withdrew her consent. Vela, or absence of consent at the mo According presence ment of initial to be the crucial in the penetration appears point crime of Court, the California in the case Supreme of In re Z., 29 Cal. 4th 124 Cal. Rptr. John (2003), found the used in Vela to be “unsound” and reasoning flawed.” The Z. court held that “the offense of “clearly forc John when, ible occurs intercourse, consensual during apparently the victim an the act and expresses objection attempts stop the defendant continues 29 Cal. forcibly despite objection.” 4th at 760.

Nowhere in the definition of K.S.A. 2002 21-3502 it does Supp. of sexual intercourse ends with state that act In- penetration. stead, the definition of “sexual intercourse” found at K.S.A. 21- establishes minimum amount of contact merely necessary the offense. prove

It is a construction, fundamental rule of to which all statutory other subordinate, rules are that the intent of the legislature gov- erns if that intent can be ascertained. When a statute is plain will courts not as to the appellate unambiguous, speculate leg- it islative intent behind and will not read such a so as statute to found in it. State ex Stovall v. rel. Me- not add something readily 271 Kan. 355, 378, 22 P.3d 124 neley,

We believe that the definition of leads rape espoused by a 2002 to tortuous of K.S.A. 21-3502. interpretation Supp. sexual intercourse one

Quite when performed simply, partici- is under or fear It force is does not matter if the force pant rape. fear at the act or exists initiation of the or whether it comes after consent is withdrawn. The act is under either circumstance. rape A in sexual intercourse withdraw consent after participant may has occurred. The continuation of sexual intercourse withdrawn, after consent has been and in the of force or presence fear, is rape. next that even if can occur after consensual argues rape a defendant must have a reasonable time in which to

penetration, act on the victim’s withdrawal of consent. contends that the State failed to that he did not cease sexual intercourse prove within a time reasonable after E.N. withdrew her consent.

The “reasonable time” was addressed the Califor- argument by Z. The court noted nia Court that defendant Supreme John withdraw, time” to and that to his failure cease given “ample Z., intercourse was not reasonable. 29 Cal. 4th at 763. In John victim told the defendant three times that she “needed to go home.” It was estimated that the intercourse 4 continued for to 5 minutes victim after the first told the defendant she needed to go home. 29 at Cal. 4th 763. case,

In the E.N. instant estimated that it took Bunyard approx- 5 to 10 minutes to the intercourse. consent When imately stop withdrawn, sexual intercourse for to 10 minutes is not continuing reasonable and are constitutes We Bun- by persuaded yard’s arguments contrary. contends State failed

Finally, Bunyard prove E.N.’s in the intercourse was because force or fear. participation The Robinson court noted that in case, the State must any rape a reasonable doubt much more than mere absence prove beyond is the fear. 496 A.2d at element force or consent. critical 1070. and life- law it clear that violent assaults case makes

Kansas a conviction. actions sustain are not necessary threatening Borthwick, P.2d 1261 In have rational factfinder could found determine whether a order to a has been overcome that victim of reasonable doubt beyond fear, record Each case must we as a whole. force or consider determination. on its facts at this be decided unique arriving Borthwick, 255 911. Kan. at end

E.N. testified that she attempted verbally physically are within the the intercourse. Issues of credibility province review, will of witnesses not be On credibility appellate jury. all will not and evidence be weighed, ques- passed upon, conflicting in resolved of the State. State v. tions of are to be favor credibility 591, 602, 794 E.N.’s 973 P.2d testimony Lyons, convic- sufficient of force to sustain evidence Bunyard’s provided case, facts we find that for Under the of this tion rape. specific find of was sufficient evidence to there rape. guilty Trial Court’s Inquiries Response Jury deliberations, After the retired for the sent juror jury presiding the The first we the two notes to trial court. read: “Can tran- get [E.N.j’s on when for the sexual ac- she asked testimony scripts times, (i.e. frame).” and time to cease how the The many tivity note read: allows but then second “If someone penetration, says fit and he does not does that definition no stop, legal rape? law, on Please elaborate if there is elaborate.” [to] any The trial court had E.N.’s read back to The testimony jury. answered “The trial court the second defini- question by writing: 6, 7, 8 is contained in instructions numbered & 9. I tion of rape elaborate further. Please reread the instructions.” In- cannot any 7, Nos. and 8 are identical Instruction No. struction except initials 7 and 9 the victims’ are different. Instruction Nos. state: (2) defendant, 7:No. “In Two R. Instruction Count Bunyard, Josiah with the crime defendant pleads guilty. charged be To establish this each of the claims must following proved: charge, defendant, E.N.; 1. That the R. had sexual intercourse with Bunyard, Josiah 2. That the act of sexual intercourse was committed without the consent of fear; E.N. under circumstances when she was overcome force or 3. That this act occurred on or about August Sedgwick County, Kansas.” instructions, Instruction 9: “As No. used these sexual intercourse means any of the sex the male sex however organ by organ. Any penetration, is sufficient to constitute sexual intercourse.” slight, On that the trial court violated its appeal, Bunyard argues duty contends that the Kansas in- guide jury. Bunyard pattern (PIK) structions did not address the adequately question these facts. posed by jury regarding specific After the submitted its the trial court conferred jury questions, with the counsel. counsel Bunyard’s Bunyard’s sug that the trial court should instruct the that the with gested jury drawal of consent intercourse could not lead to a con during viction. The trial court refused to add it to the instruction because it would have taken the decision from the After some away jury. discussion, counsel Bunyard’s agreed referring jury instructions was The State main previously given “appropriate.” tains that concession amounts to invited error. A Bunyard’s litigant not lead a trial court into error and then of the trial may complain Saleem, court’s action on State v. appeal.

P.2d 921 A trial court is vested with a amount of discretion in an great from a after the has its delib swering questions jury begun erations. instruction criminal is essential in a Proper jury proceed where the the involves the basic ing question presented by jury elements of the criminal offense on which the defendant is being Bandt, tried. State v. (1976). The instruction for the trial court this case rape given is identical to PIK Crim. 3d 57.01. The use of PIK instructions is not but recommended. If the facts mandatory, strongly particular in a case modification of the in- given require applicable pattern struction, or the PIK, addition of some instruction not included in the trial court should not hesitate to make such modification or However, need, addition. absent such PIK instructions and rec- Ransdell, Kan. Hibbert v. be followed. should ommendations 272 Kan. 1418 331-32, rev. denied 26 P.3d 2d App. on the instruc- what We are not sure Bunyard expected response brief that the he in his as issue inasmuch tion appellate argued in Kansas. We first consent is one of of withdrawn issue impression that crafted an answer trial could have the court do not see how time while at the same the would have satisfied accurately parties, Therefore, an- that the trial court we conclude the law. reflect swered jury’s question appropriately. the instruc- continues by claiming argument this case. as to the facts of statute

tions rendered vague rape is not unconsti- that the statute concedes construc- claims that absent on its face. He judicial tutionally vague consent, the statute sub- the issue of withdrawn tion clarifying that the via a standard so indefinite him criminal liability jected their definitions of the offense. to formulate own were free jurors in reviewed the entire record We have appeal, thoroughly and the sur motions all of argument Bunyard’s posttrial cluding cannot We readback of E.N.’s testimony jury. rounding issue this constitutional instance where find one Bunyard brought reversal for attention. Constitutional to the trial court’s grounds are not before the first time on that are asserted for appeal properly 18, 30, 11 review. State v. court for Conley, appellate has 532 U.S. 932 This issue (2000), cert. denied P.3d 1147 we will not address for been preserved appeal, properly merits of Bunyard’s argument. Charges Motion to Sever in the trial, a motion to sever the filed Prior to charges were not that'the three of rape charges complaint. Bunyard argued and, further, were not of the same or act on the same based they sever, motion to trial denied court similar character. Bunyard’s of the same or similar all three were rape charges finding character. were not of maintains that

On charges appeal, will be tried on all Whether a defendant character. same or similar in a trial is a matter within the discretion separate charges single court, trial its will and decision not be disturbed on appeal unless there is a clear of abuse of If reasonable discretion. showing decision, could differ about the of the trial court’s people propriety this court will not find that trial court abused its discretion. Cromwell, 495, 511, (1993). State v. 253 Kan. (1) if the crimes are of the same or proper charged: Joinder character; (2) transaction; similar are based on the same act or or (3) are based on two or acts or more transactions connected to or of a common scheme or K.S.A. constituting parts gether plan. 22-3202(1); Breazeale, State v. 714 P.2d cert. denied 479 U.S. 846 When the offenses are only character, the same there should be informations general separate Barksdale, 498, 507-08, trials. State v. separate P.2d 165 Barksdale,

In the Kansas Court held that was Supreme joinder same; when: the motive both crimes was the both victims proper head; were and received blunt trauma to the both victims strangled cords; were found face down and tied with and both murders were committed the same 266 Kan. at 508-09. general neighborhood. case, victim, A.P., In the instant the first testified she awoke find herself naked from the waist down with shirt and bra her above her breasts with A.P. of her. testified pushed Bunyard top that she him but away attempted push Bunyard “forcing” E.N. her to continue. testified that removed her Bunyard clothing while were in the car. She testified that “forced” her they Bunyard intercourse, victim, to have The third despite protestations. L.B., bed, testified that forced her onto the even though she said “no” and me.” L.B. off of testified repeatedly “get L.B., down her and underwear. Bunyard pulled pants According had intercourse with her even she though protested cried. defense was that he had sex with all consensual Bunyard’s three women. victims,

In all three was known to the allegedly charges, forced himself onto each victim their and allegedly despite protests, removed at least of each victim’s In two of the three clothing. part cases, wore a condom. cases, trial we are confident that the court

After other reviewing these for trial. did not abuse its discretion by consolidating charges nature. that all three The were of a similar Bunyard argues charges have admissible to would not been independently prove charges However, evi- under K.S.A. 60-455. when crimes are joined, plan Barksdale, dence is admissible of K.S.A. 60-455. See independent Furthermore, Kan. at 510. we do not believe that 266 admissibility a under K.S.A. 60-455 is element of necessaiy joinder. was that each crime is a and distinct instructed jury separate offense, and decided of the oth each must be independent charge lack of ers. maintains we cannot assume prejudice the fact that he was of two of the we acquitted charges. find the to be evidence of the jury’s ability acquittals compelling to differentiate the of evidence. Bunyard argues applicability led the to believe that he had a jury joining charges propensity for We believe there is no basis for this state acquaintance rape. ment.

On that a severance appeal, Bunyard argues necessary his Fifth Amendment not to to certain counts. protect right testify told the trial court that he wanted to as to one only testify counts but was forced to about all three. testify The accused’s election to on some but not all of the testify at trial does not a severance. Such a automatically charges require rule, fact, would divest the trial court of all control over the Howell, matter of severance and it v. entrust defendant. State 284-85, 282, The trial court is entrusted with the the severance of decision concerning charges. could have chosen not to testify.

We conclude that the trial did court not abuse its discretion by motion to sever denying Bunyard’s charges.

Prosecutorial Misconduct that two of the comments de- Bunyard complains prosecutor’s him a fair nied his constitutional trial. right If did not to the first statement. the claimed object error has been determined to a defendant’s to a fair implicate right trial, our standard of review is the same whether or not an objection

865 the level of a denial error rises to at trial. If the claimed was made the issue will to due Amendment the Fourteenth process, right 516, Scott, cert. Kan. P.3d be addressed. 534 U.S. 1047 denied is used to

A analyze allegations prosecutorial two-step process were outside First, whether the comments we decide misconduct. the evidence. is allowed the wide latitude discussing Second, were so whether the statements we must decide gross the accused and as to deny prejudice against flagrant Scott, Kan. at 113. trial, a fair reversal. defendant requiring com- are whether the under the second Factors to consider step and whether the evidence ill will ments show by prosecutor, s that the was so the defendant overwhelming prosecutor against the result likelihood of had little or no misconduct changed having Scott, at 115. trial. of the made the following closing argument, prosecutor

During comments: the facts This is the time when he committed a you put “The law tells you here, law, not in what the a litde about what’s and I’m to tell bit you going to law does not the State prove.” require there are certain to but things “It shows what is you exactly required prove, victim is not back. A A victim is not that are not required fight required. victim, to be or have the more of a to be beat opportunity to become required inside of force of the than the than the actual penis going hurt more any rape, That’s

the vagina. enough.” her, in her. That’s him on penis “The force has to be sticking just top a reasonable to those women that beyond Do believe you happened enough. doubt?” told that the claims

On effectively prosecutor appeal, Bunyard consent are forceful without that all acts of the jury fear. of force or even in the absence and constitute rape, was le- force” that the State’s believes theory equals “penetration deficient. gally first comment the outset that

We will note from prosecutor’s ends, the law does not “what which mentioned require Bunyard, by never mentioned The is harmless. the State to prove,” of this case. law or the facts specific The other State’s two comments were taken from the likely case, Borthwick, Borthwick cited above. In the Kansas Supreme Court held that violent assaults and actions are not life-threatening to sustain a conviction. The necessary legislature required only that fear; a victim be overcome force or he or she need not by endure or be threatened with a beating deadly weapon satisfy 255 Kan. at 910-11. requirement. Borthwick, Based on an accurate statement prosecutor gave of the law when she told the victim is not “[a] required back. A victim is victim, to become more of a fight required to be beat or have the to be hurt more than the opportunity any . . . .” Those statements all were accurate comments on the law, state of the the Borthwick We are left to ex- given holding. statement, amine the “The force of his in her is penis vagina under the law of the State of Kansas.” enough wide latitude in and in manner prosecution given language as as it is consistent with presentation closing argument long Cravatt, the evidence adduced. State v. (1999). However,

P.2d 679 even in mind that deferential keeping review, standard of we must conclude that the remark prosecutor’s was an incorrect statement of the law in Kansas. K.S.A.2002 Supp. 21-3502(a)(1)(A) that in addition to in sexual clearly contemplates (the tercourse the victim must penetration portion equation), be overcome force or fear. It is inaccurate to that the crime say is Therefore, with we with completed penetration. agree that the misstated die law. prosecutor law,

A misstatement of the whether a or the by prosecutor by court, denies the defendant a fair trial where the facts are such that the could have been confused or misled the misstate- jury by 608, ment. State v. 619, 273 Kan. 44 P.3d 466 In Henry, the told the that it had to find the defendant Henry, prosecutor jury did not commit the acts to find him not reason of alleged guilty by mental disease or defect. 273 Kan. at 619. The Kansas Supreme Court ruled diat a misstatement of the law had to be considered in the context of the review, instructions the court. On juiy given by the Court in also examined other issues of Supreme Henry alleged misconduct. 273 Kan. at 620-23. the case prosecutorial Although reversed, there is no indication that the case was ultimately reversed because of s erroneous misstatement solely prosecutor of the law. (2002),

In State v. 272 Kan. 38 P.3d 650 the Kansas Doyle, considered a Court definition of the term prosecutor’s Supreme The told the can be “premeditation.” prosecutor jury, “Something as soon as it 272 Kan. at 1163. premeditated happens.” During deliberation, asked, “Is there a amount of time jury specific before crime is committed that and premeditation’ applied?” answered, the trial court “No.” at 1163.

The Kansas Court concluded that the mis- Supreme prosecutor stated the law. the court found there was no indi- addition, cation tried to mislead the In purposefully jury. the court noted that there was evidence of ample premeditation. The court concluded that error the State any by regarding pre- 1166; meditation was 272 Kan. at harmless. see State v. Albright, When whether a misstatement of law was analyzing prosecutor’s defendant, (1) we examine three prejudicial things: jury instructions; (2) the balance of the remarks prosecutor’s during (3) the evidence. closing argument; The was told that in order to find it must jury Bunyard guilty, find that “the act of sexual intercourse was committed without the consent of E.N. under circumstances when she was overcome by force or fear.” The instruction on anwas accurate state- jury ment of the law. her told the

During closing argument, prosecutor jury crossed a line “when he had the force of his body force he committed a [E.N. and] penis rape.” pros- evidence, ecutor directed the to look at the jury physical including asked, sustained E.N. The also mounting injuries “Do believe that he forced himself them? That’s what you you have to decide.”

We attention to the remark made pay special prosecutor’s during the second half She addressed the closing argument. “The issue is sex without consent with force or fear. by saying, only Do believe that a reasonable doubt?” Bun- you happened beyond comment made a similar own during closing

yard’s attorney argument. evidence, we con- all of the relevant

After thoroughly reviewing misstatement of the law was harmless. clude that the prosecutor’s cause substantial Errors do affirmatively prejudice do not reversal when sub- require complaining party rights Clark, v. stantial has been done. State justice another comment made also about by complains As she was during closing argument. concluding prosecutor said, “The most these remarks significant thing, prosecutor each Their circles did not three ladies did not know other. young did not cross.” and the ob- cross. Their Bunyard objected, paths finished “All of was overruled. jection prosecutor saying, each Consider that.” The these men did know other. pros- young was to the fact that friends all ecutor referring Bunyard’s presented similar very testimony. claims that the comment vio-

On appeal, Bunyard prosecutor’s lated the trial court’s instruction that all three must be charges that the considered believes comment was separately. Bunyard to a fair trial. and undermined his prejudicial right trial, testified that had At most of the witnesses for Bunyard they Thus, known for a few was years. quite prosecutor the evidence when she made her remark to simply summarizing We do not believe was jury. prosecutor attempting Instead, link all three rape charges together. to show that the defense witnesses were all biased in

attempting favor of and could be motivated to fabricate their stories. Bunyard, This ruled that it to illustrate a court has previously appropriate witness’ social with the defendant to indicate bias or relationship Bias, interest, or motives of witness may prejudice. improper be shown in order to the witness’ always place testimony proper Loveland, 2d 653 P.2d App. perspective. (1982), rev. denied 232 Kan. 876 We do not view tire remark as misconduct. In the prosecutorial misconduct, can no ar- absence of there be prejudice. Bunyard’s misconduct is without merit. prosecutorial gument regarding

869 Cumulative Error that cumulative trial errors that we re- claims Barnyard require remand this for a new verse his conviction and case trial. have reviewed all of the issues raised

We by Bunyard. thoroughly err in ar- We concluded that did making closing however, we that error was harmless. There found guments; any was no other error. Adjudications History in Criminal Score

Juvenile that the trial erred when it included court Bunyard argues ju- venile his criminal score. believes adjudications history as of criminal violates juvenile adjudications using part history v. New 466, 530 U.S. 147 L. Ed. holdings Apprendi Jersey, Gould, 435, (2000), 394, 2d 120 S. Ct. 2348 and 271 Kan. 23 801 P.3d Hitt,

In State v. cert. 2, (2002), 42 732 P.3d Syl. ¶ denied 123 S. Ct. 962 (2003), held that Kansas Court Supreme need not be an indictment or juvenile adjudications charged to a a reasonable can doubt before be proved jury beyond they used in a defendant’s criminal score under the calculating history Kansas Guidelines. This court is bound to follow Sentencing duty Kansas Court unless there is some indication Supreme precedent, Mueller v. that the court from its departing previous position. State, rev. denied 271 2d P.3d Kan. App. cert. denied 535 U.S. 997 (2001), We also note that the Hitt de the United Court States Supreme impliedly approved cision when it denied the writ of certiorari. his criminal score is

Bunyard’s argument concerning history without merit.

Affirmed. find that would J., dissenting: forcing Bunyard I

Johnson, defend the three unrelated in a consolidated trial against charges him a him a fair trial. and denied deprived legal advantage I with the the offenses assertion “[w]hen agree majority’s character, are of the same there should be only general separate informations and trials.” I with the majority’s separate disagree two that E.N.’s case was similar to other sufficiently

finding A.P. and L.B. al- cases to warrant joinder. charges involving the victims were from beginning. unwilling participants leged victims described nonconsensual removal forc- Those clothing ible, unwanted penetration. hand,

On the other E.N. was with “okay” kissing Bunyard while her removed. Al- continued that kissing clothing being that the made her un- she testified removal of pants though comfortable, she that she did not indication any acknowledged give that it was behavior. after had on Only put unacceptable seat, condom, a laid E.N. back onto the car placed penis state, did E.N. “I don’t want to do this. Please inside vagina make me do this.” don’t in the of the

As indicated the of majority’s analysis sufficiency issue, an in evidence E.N.’s case issue of first presents impression i.e., state, this whether the withdrawal of consent coitus during That transforms the act into the crime of scenario is dissimilar to the traditional forcible in the other two cases. rapes alleged By “ cases, the two of ‘there would inevitably consolidating types r.ape trial, at be some of the two cases the which would tend jumbling that of each case which is to concentrated consideration prevent ” Barksdale, in matters of such State v. gravity.’ indispensable 498, 508, (1999) Kan. 973 P.2d 165 State v. (quoting Thompson, [1934]). The of theoiy Bunyard’s in the E.N. incident was The of the two joinder culpability unique. forcible ad- “jumbled” Bunyard’s charges alleging legal of that E.N. to the commencement consented of vantage arguing sexual intercourse. the State’s that desire majority accepts argument Bunyard’s in it one of the cases is not because would testify only controlling severance, than the

allow the defendant to dictate rather leaving discretion, decision to the trial court’s and because had at all. the of not The “tail should not option wag testifying dog” rationale is less than The test enunciated the ma compelling. a determination of whether will includes jority joinder deprive defendant of some Because of factual legal advantage. differing cases, in the had a credible reason for want- three patterns to remain silent two his constitutional to exercise only right ing cases, will have the the trial court the cases. In other of opportunity will the defend- whether to assess joinder legitimately compromise into an The State’s ant’s Fifth Amendment forcing Bunyard rights. all or situation was authority unnecessary preserve nothing is trial courts to determine whether of future joinder appropriate. cases, in all three had the of not as testifying option Just the three unrelated cases the State had sepa- option trying rately. is a reason for from the State’s persuasive

Missing argument that the three cases. The State’s brief does allege consolidating would have had to to the nu- “several witnesses testify repeatedly However, trial merous times had been [sic] granted.” separate witnesses, the State’s 15 one on more than only provided testimony that one chemist who testified about police charge results from the kits. The that the State’s witnesses way only would have testified in more than one trial is if the State could State, establish bad acts. admissibility prior Barksdale, the con- asserts citing joinder dependent crimes test K.S.A. 60-455. solidated meeting admissibility the State that the other crimes would be Apparently, may argue trials, admissible but the defendant is not separate permitted otherwise inadmissible evidence to be joinder permits argue introduced. the

Most is the absence of an as to why conspicuous explanation A.P. her in De- delayed prosecuting rapes. reported rape 1999; 2000; cember E.N. her in L.B. re- reported rape August all 2001. was with January ported rape charged contrast, Barksdale, three crimes in 2001. In relied Februaiy upon the State and the a situation in which the by majority, presented State learned of both murders at the same time. It is inconceivable that even the busiest would leave a on the street rapist for a in the interest of One can surmise year judicial economy. only that the accumulated one by consolidating reports prose- rape cution, the State all three cases by inferring hoped strengthen to commit date disposed rape. Promoting be use of character would not allowed jury’s propensity reasoning in a trial. See K.S.A. 60-455. It should not be separate permitted via the use of joinder.

I in- would reverse and remand for a new trial on the charges E.N., without evidence two other incidents. volving Upon retrial, when, would be entitled to an if explanation ever, a can occur consensual commencement of sex- rape following ual intercourse. one whether a criminal

Although might ponder person’s culpa- for terminate sexual intercourse bility refusing prematurely should be with that of a who equated person forcibly penetrates an decision is not ours to make. unwilling participant, policy case, has defined as to E.N.’s as hav- legislature rape, applied (1) intercourse; (2) consent; three elements: sexual without ing (3) when the victim is overcome force or fear. K.S.A. 2002 by Supp. 21-3502(a) (1) (A). The statute does not the order in which prescribe the elements must occur. the absence of consent and the of force or

Ordinarily, presence fear tire precede penetration, making rape complete upon However, does not slightest penetration. complete intercourse; rather, sexual that term would apply continuing until terminated withdrawal. a copulation by participant coitus; is not the act of consent with- be required complete may At i.e. drawn. drat two of the elements are point, present, sexual intercourse and lack of consent. The becomes rape only when the effects continuation of sexual inter- complete culprit course the victim or fear. force The evidence by overcoming in E.N.’s case would have presented supported jury’s finding on the basis of forcible continuation of sexual after intercourse the withdrawal of consent.

Case Details

Case Name: State v. Bunyard

Court Name: Court of Appeals of Kansas

Date Published: Aug 29, 2003

Citation: 75 P.3d 750

Docket Number: 88,546

Court Abbreviation: Kan. Ct. App.