Kansas v. Flynn

329 P.3d 429 (Kan. 2014)


A.S. reported that D had raped her. P prosecuted D on six charges: one count each of kidnapping, aggravated kidnapping, and aggravated criminal sodomy and three counts of rape. D and A.S. had known each other for several years and attended the same schools and that A.S. and her mother worked with D's mother and sister. D and A.S. made plans to hang out at Jennie Townsend's house. D had ingested OxyContin earlier in the day, and at some point, A.S. offered D a ride home after he indicated he was not feeling well and wanted to leave. D asked to drive, and A.S. let him. D took wrong turns and told A.S. that they were going to fuck. A.S. objected. D eventually stopped the car on a country road, yelled at her to get out, and forced her to remove her clothing. D then forced her to engage in nonconsensual vaginal intercourse on the hood of the car, on the ground in front of the car, and again in the backseat of the car. During the sexual intercourse on the ground, A.S.'s 'bottom part,' vagina, legs, arms, back, elbows and knees came in contact with the gravel road. D attempted anal intercourse and told A.S. if they did not have anal intercourse, she would have to provide oral sex. d later placed his penis in A.S.'s mouth without her permission and forced her to perform oral sex. A.S. testified she was overcome by fear during each act of intercourse as well as when forced to perform oral sex. She twice tried to run. A.S. placed her hands over her face and told D she would have to quit her job. D changed, and it appeared D realized what he had done. D then picked up A.S.'s clothing from around the car, A.S. got dressed, and D helped her put on her shoes. D had a different story. D testified A.S. began fondling his genitals, so he drove out to a country road. D testified the acts were consensual, but the intercourse was D testified that during the intercourse on the ground, A.S. told him, ''No. Just stop. No. Not here on the ground.'' D did not immediately stop because he was not sure A.S. was serious. D stopped when A.S. again said, ''Stop, I'm serious.'' D and A.S. both testified A.S. began crying as D put on his shoes, and she continued crying as he drove back into town, but she would not respond when D asked what was wrong. A.S. had numerous areas of abrasions and some bruising on her knees, elbows, and lower backside. In arguing the evidence supported A.S.'s version, the prosecutor emphasized the extent of A.S.'s injuries, testimony about A.S.'s demeanor and conduct after the incident, and D's incriminating, post-incident voicemail messages. D concentrated on D's explanations for his cell phone messages and reminded the jury that A.S.'s injuries could be consistent with consensual intercourse. The jury found D guilty of the rape charge defined in Instruction No. 5 concerning the allegation D raped A.S. on the ground in front of her car but acquitted D of the five remaining charges. D appealed. The Court of Appeals reversed; the trial court failed to instruct the jury in accordance with State v. Bunyard 'that sex can cease to become consensual if the consent is withdrawn after penetration and the intercourse continues either by force or fear, however, the defendant is allowed a 'reasonable time' in which to act upon the withdrawal of consent.' P appealed.