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State v. Flynn

Supreme Court of Kansas

July 11, 2014

STATE OF KANSAS, Appellee,
v.
IRA WAYNE FLYNN, Appellant

Review of the judgment of the Court of Appeals in 45 Kan.App.2d 1113, 257 P.3d 1259 (2011) .

Appeal from Sumner District Court; WILLIAM R. MOTT, judge.

Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, case is remanded with directions.

SYLLABUS

BY THE COURT

1. K.S.A. 21-3502(a)(1)(A) proscribes all nonconsensual sexual intercourse accomplished through force or fear, including nonconsensual sexual intercourse occurring when a person communicates his or her withdrawal of consent after penetration and the other person continues the intercourse through compulsion.

2. When a defendant is charged with rape as defined in K.S.A. 21-3502(a)(1) for an offense committed before July 1, 2011, and the evidence presented at trial suggests the victim initially consented but withdrew consent after penetration, the trial court must instruct the jury as to the elements of rape and give an additional instruction. Namely, the court must instruct the jury that the defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion.

3. This court's holding in State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006), that a defendant is entitled to a reasonable time in which to act after consent to sexual intercourse is withdrawn and communicated to the defendant is disapproved.

Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kaitlin M. Dixon, deputy county attorney, argued the cause, and Evan C. Watson, county attorney, was on the brief for appellee.

OPINION

Page 430

MORITZ, J.

We granted the State's petition for review of the Court of Appeals' decision in State v. Flynn, 45 Kan.App.2d 1113, [299 Kan. 1053] 257 P.3d 1259 (2011). There, the panel majority reversed Ira Flynn's rape conviction and remanded for a new trial after concluding the district court committed clear error in failing to instruct the jury pursuant to State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006). Flynn, 45 Kan.App.2d at 1118-19.

In Bunyard, this court held that K.S.A. 21-3502(a)(1) proscribes all nonconsensual sexual intercourse accomplished by force or fear. Thus, under this statute, a person may be convicted of rape if intercourse begins consensually but consent is withdrawn after penetration and the intercourse continues by force or fear. 281 Kan. at 412. Bunyard further held that in cases involving post-penetration withdrawal of consent, the defendant is entitled to a " reasonable time" in which to act after consent is withdrawn

Page 431

and communicated to the defendant. 281 Kan. at 413-16.

Judge Malone dissented in Flynn, distinguishing Bunyard and concluding the district court did not clearly err in failing to give the instruction. Judge Malone also encouraged this court to reconsider Bunyard 's conclusion the defendant is entitled to a " reasonable time" in which to act after consent is withdrawn and communicated to the defendant. Flynn, 45 Kan.App.2d at 1119-23 (Malone, J., dissenting).

Today, we disapprove Bunyard 's holding that a defendant is entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant. But we reaffirm Bunyard 's conclusion that K.S.A. 21-3502(a)(1)(A) proscribes all nonconsensual sexual intercourse accomplished through force or fear, including nonconsensual sexual intercourse occurring when a person communicates his or her withdrawal of consent after penetration and the other person continues the intercourse through compulsion. Additionally, we reaffirm Bunyard 's conclusion that in cases concerning post-penetration withdrawal of consent, the district court must do more than instruct the jury on the statutory elements of rape as defined in K.S.A. 21-3502(a)(1).

Instead, when a defendant is charged with rape as defined in K.S.A. 21-3502(a)(1) for an offense committed before July 1, 2011, and the evidence presented at trial suggests the victim initially consented but withdrew consent after penetration, the trial court must [299 Kan. 1054] instruct the jury as to the elements of rape and give an additional instruction. Namely, the court must instruct the jury that the defendant may be convicted of rape even though consent is given to the initial penetration, but only if the consent is withdrawn, the withdrawal of consent is communicated to the defendant, and the defendant continues the intercourse through compulsion.

Here, although the facts of this case warranted the additional instruction on withdrawn consent, the district court failed to give it. Because we are not firmly convinced this omission was harmless, we affirm the Court of Appeals' decision, reverse Flynn's rape conviction, and remand for a new trial with an appropriate instruction.

Factual and Procedural Background

On September 26, 2007, A.S. reported to friends, family, and police that Ira Flynn had raped her. The State ultimately prosecuted Flynn on six charges: one count each of kidnapping, aggravated kidnapping, and aggravated criminal sodomy and three counts of rape.

Flynn's Jury Trial

The evidence presented at trial established that Flynn and A.S. had known each other for several years and attended the same schools and that A.S. and her mother worked with Flynn's mother and sister. At trial, Flynn and A.S. testified consistently as to certain events that occurred the evening of September 25, 2007, and in the early morning hours of September 26, 2007. Namely, both Flynn and A.S. testified the two of them made plans to hang out at Jennie Townsend's house after A.S. got off work. A.S. picked up Flynn from Shawn Howell's house around 11:30 p.m., made a brief stop at her apartment, and then drove herself and Flynn to Townsend's house.

A.S. and Flynn also consistently testified they stayed at Townsend's for a few hours, drinking and playing games. Flynn had ingested OxyContin earlier in the day and at some point A.S. offered Flynn a ride home after he indicated he was not feeling well and wanted to leave. As they prepared to leave, Flynn asked to [299 Kan. 1055] drive and A.S. let him. A.S.'s and Flynn's testimony conflicted about events occurring after they left Townsend's house.

A.S.'s Testimony

A.S. testified Flynn took two wrong turns after leaving Townsend's house and, when A.S. pointed this out, Flynn responded, " 'We're going out here to go fuck.'" A.S. objected, telling Flynn, " 'No we're not. No we're not.'" A.S. immediately became afraid when Flynn took the first wrong turn. A.S. also testified Flynn had not previously behaved violently toward her or caused her any harm.

Page 432

According to A.S., Flynn eventually stopped the car on a country road, yelled at her to get out, and forced her to remove her clothing. Flynn 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. At some point, Flynn attempted anal intercourse and told A.S. if they did not have anal intercourse she would have to provide oral sex. Flynn 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 from Flynn, but he caught her each time. After the second time, A.S. placed her hands over her face and told Flynn she would have to quit her job. According to A.S., at this point Flynn's " face just completely changed," and it appeared to her Flynn realized what he had done. Flynn then picked up A.S.'s clothing from around the car, A.S. got dressed, and Flynn helped her put on her shoes.

Flynn's Testimony

Flynn testified he and A.S. left Townsend's house, " [c]ruised" the main drag in town once or twice, and briefly stopped at a convenience store because he felt sick. Flynn was " pretty trashed," [299 Kan. 1056] and he believed A.S. also was intoxicated. Flynn testified A.S. began fondling his genitals so he drove out to a country road.

According to Flynn, after he parked the car, he and A.S. got out, met in front of the car, and removed each other's clothing before having sexual intercourse on the hood of the car. A.S. then got down from the hood and performed oral sex on him. Flynn testified these acts were consensual, but the intercourse was " rough." Next, he and A.S. attempted to reengage in sexual intercourse on the hood of the car but, according to Flynn, they " went down to the ground" instead and had intercourse in front of A.S.'s car. Flynn testified A.S. was not fighting and he did not try to control her, but A.S. hit her head when they " flopped to the ground."

Flynn testified that during the intercourse on the ground, A.S. told him, " 'No. Just stop. No. Not here on the ground.'" Flynn " slowed down" but did not immediately stop because he was not sure A.S. was serious. According to Flynn, the two continued having intercourse for " 30 seconds, a minute, maybe two," but he stopped when A.S. again said, " 'Stop, I'm serious.'" Flynn then helped A.S. gather her clothing and get dressed, and he dressed himself. Flynn denied having intercourse with A.S. in the backseat ...


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