Syllabus by the Court
The phrase " force or fear" in Kansas' rape statute, K.S.A. 21-3502(a)(1)(A), merely describes a factual circumstance that may prove a distinct, material element of rape— namely, having nonconsensual sexual intercourse with a victim who is " overcome." In other words, the actus reus of subsection (a)(1)(A) is " to overcome," and the phrase force or fear merely describes this material element. Accordingly, the phrase force or fear does not create alternative means of committing rape and, consequently, a defendant's conviction for rape under K.S.A. 21-3502(a)(1)(A) will be affirmed on appeal when the jury was instructed that it must find that the victim was overcome by force or fear and evidence of either force or fear was presented at trial. Language contained in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), suggesting otherwise is specifically disapproved.
Deborah L. Hughes, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of the same office, was on the brief for appellant.
Tamara S. Hicks, assistant county attorney, argued the cause, and Lora D. Ingels and Lois K. Malin, assistant county attorneys, and John P. Wheeler, Jr., county attorney, and Steve Six, former attorney general, and Derek Schmidt, attorney general, were on the briefs for appellee.
Armando Nunez was convicted of rape in violation of K.S.A. 21-3502(a)(1)(A) (defining rape as " [s]exual intercourse with a person who does not consent to the sexual intercourse" under circumstances " [w]hen the victim is overcome by force or fear" ). On appeal before the Court of Appeals, he argued that the phrase " force or fear" in K.S.A. 21-3502(a)(1)(A) establishes alternative means of committing rape, requiring that the State present sufficient evidence of both force and fear. Nunez conceded on appeal that the State presented sufficient evidence of force, but he [298 Kan. 662] argued that the State failed to present evidence establishing that the victim was overcome by fear. Accordingly, he argued that there was insufficient evidence to support the rape conviction.
The Court of Appeals reviewed this court's decisions in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and determined that based on the alternative means analysis applied in those cases concerning the phrase force or fear, it was unclear whether the phrase should be construed as establishing a single means or alternative means of committing rape. The Court of Appeals ultimately determined, however, that this issue need not be decided definitively in this case because it viewed the evidence presented at Nunez' trial as establishing that the victim was overcome by both force and fear. Therefore, the court affirmed Nunez' rape conviction. State v. Nunez, No. 102,377,
__ Kan.App.2d __, 2011 WL 2191686 (Kan.App.2012) (unpublished opinion).
We granted Nunez' petition for review to address the apparent confusion caused by Timley and Wright. Based on our decision in State v. Brown, 295 Kan. 181, 194, 200, 284 P.3d 977 (2012), and the cases following Brown, we conclude that the phrase force or fear merely presents options within a means and, accordingly, including this language in the jury instruction on rape did not make this an alternative means case triggering concerns of jury unanimity. Because sufficient evidence of force was presented at Nunez' trial, we affirm his rape conviction. See, State v. Brooks, No. 102,452, 298 Kan. 672, 317 P.3d 54, 2014 WL 265540 (2014), this day decided.
Nunez married M.N. when she was 14 years old. They were married for approximately 8 years, during which time they had two children. They eventually divorced and lived apart for 2 months but then resumed living together and had a third child, a daughter. Despite living together and having
a third child, the couple remained divorced.
On the morning of January 21, 2007, M.N. was at home sleeping in her bedroom. Her daughter was sleeping in a crib next to the bed. M.N. was awakened by the sound of Nunez coming home [298 Kan. 663] that morning and playing loud music. Eventually, M.N. went back to sleep.
Later, M.N. was again awakened when Nunez came into her bedroom and told her he wanted to have sex. M.N. told him no. Nunez proceeded to take off his clothes and then started to forcibly remove M.N.'s clothes while she fought with him. Eventually, Nunez began having sexual intercourse with M.N. M.N. tried pushing Nunez away, but she was unable to do so.
While M.N. was struggling with Nunez, their daughter awoke in her crib. M.N. told Nunez that their daughter was awake and watching them. Nunez stopped and M.N. got up from the bed, gathered her clothes, and ran into the bathroom. Nunez followed M.N. into the bathroom and forced her to the floor. According to M.N., as she struggled against him, Nunez lifted her legs up and penetrated her anus with his penis.
While in the bathroom, M.N. cried out loudly, conveying, according to her, that she was " very scared." At this point, Nunez let go of M.N., and M.N. then got up from the floor and eventually called the police. They arrived 10 minutes later. Through a friend who acted as her interpreter, M.N. told the police that Nunez had ...