State v. Brooks, 102,452.

• Citation: 317 P.3d 54,298 Kan. 672
• Decision Date: 24 January 2014
• Docket Number: No. 102,452.,102,452.
• Parties: STATE of Kansas, Appellee, v. George James BROOKS, III, Appellant.
• Court: United States State Supreme Court of Kansas

298 Kan. 672

317 P.3d 54

STATE of Kansas, Appellee,

v.George James BROOKS, III, Appellant.

No. 102,452.

Supreme Court of Kansas.

Jan. 24, 2014.

Syllabus by the Court

1. The phrase “force or fear” in Kansas' rape statute, K.S.A.2005 Supp. 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.2005 Supp. 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.

2. Because the legislature did not qualify the term “fear” in K.S.A.2005 Supp. 21–3502(a)(1)(A), fear, as used in the statute, is an inherently subjective concept because what frightens one person may not frighten another at all. Therefore, whether a victim is overcome by fear for purposes of K.S.A.2005 Supp. 21–3502(a)(1)(A) is generally a question to be resolved by the finder of fact.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by ROSEN, J.:

George James Brooks, III, was convicted of one count of rape under K.S.A.2005 Supp. 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”), two counts of blackmail, and one count of breach of privacy. The Court of Appeals reversed Brooks' convictions for rape and breach of privacy due to insufficient evidence. State v. Brooks, 46 Kan.App.2d 601, 265 P.3d 1175 (2011).

We granted the State's petition for review to determine whether the Court of Appeals erred when it determined that the evidence presented at Brooks' trial failed to establish that the victim, J.P., was overcome by either force or fear. We also granted Brooks' cross-petition for review to address whether the Court of Appeals erred when it construed the phrase force or fear in K.S.A.2005 Supp. 21–3502(a)(1)(A) as establishing a single means of committing rape.

Based on our recent decision in State v. Brown, 295 Kan. 181, 194, 200, 284 P.3d 977 (2012), we agree with the Court of Appeals' conclusion that the phrase force or fear establishes a single means of committing rape. But we disagree with the Court of Appeal's analysis, which was based on an erroneous construction of the term “fear,” that no evidence was presented at trial showing that J.P. was overcome by fear. Accordingly, we reverse the Court of Appeals' decision reversing Brooks' rape conviction.

Facts

Because the parties do not dispute the accuracy of the statement of facts contained in the Court of Appeals' opinion, we quote extensively from that section of the opinion.

“Brooks and J.P. married in 1996. They separated in May 2005 and were divorced 10 months later. On May 7, 2006, a Sunday, Brooks accessed J.P.'s e-mail account and forwarded to his own e-mail account copies of communications she had with a married male coworker in August and October 2005. The e-mails indicated J.P. and her coworker had been carrying on an extramarital affair.

“Later on May 7, Brooks telephoned J.P. and told her he had copies of the e-mails. He read portions of them to her during the conversation. J.P. testified at trial that hearing Brooks read the e-mails gave her a very sick feeling. She said Brooks concluded the conversation by saying he would be coming over to her house for sex that evening.

“Brooks arrived at the house about 8:30 p.m. with a folder containing copies of the e-mails. He told J.P. that he would give copies to her employer and to her coworker's wife if she did not do as he said. J.P. asked Brooks to leave. But he told J.P. that he would carry out his threat to publicize her affair if she didn't have sex with him. J.P. told Brooks in no uncertain terms that she did not want to have sex with him and it would be against her will. He said that wasn't a problem. Brooks then directed J.P. to take off her underwear. When she hesitated, Brooks—in her words—‘started getting agitated.’ J.P. complied. Brooks took off his pants and put on a condom. J.P. sat in a chair, and Brooks had intercourse with her. Brooks had his hands on her legs during the act. J.P. said she had her hands over her face and her eyes closed so she would not have to look at Brooks.

“When Brooks was done, J.P. asked for the e-mails. He told her that their encounter had been a ‘test’ and he would be back on Friday for more sex.

“During her trial testimony, J.P. did not elaborate on Brooks' agitation. And she did not indicate that she thought Brooks would have physically harmed her had she refused to have sex. But she did believe he would disclose the affair. When Brooks confronted J.P., she and her coworker remained romantically involved. J.P. told the jury she did not want the relationship publicized because they worked closely and many of their colleagues knew her coworker's wife. J.P. said disclosure of the affair would have tainted the workplace and created something that ‘was not a good situation.’ But J.P. testified that she had no reason to think she would have been fired or would have suffered any adverse change in the terms or conditions of her employment were the affair to come to light. J.P. told the jury she and Brooks had sex on May 7 only because he had the e-mails and threatened to expose her workplace affair if she did not submit.

“On Monday, May 8, J.P. told both her lawyer and her counselor what Brooks had done to her the evening before. They urged her to contact the police. She did. A detective with the Topeka Police Department took a statement from J.P. and gave her a recorder to tape any calls from Brooks. She taped a message from her answering machine and several calls with Brooks. In those communications, Brooks asked for money in addition to another sexual encounter. J.P. agreed to meet with Brooks on May 12. When Brooks arrived at her home, police officers arrested him.

“Brooks denied having sexual relations with J.P. earlier that week. He claimed she had offered to have sex with him to secure the return of the e-mails. Brooks testified he agreed, but they never actually had sex that evening. Brooks also testified that J.P. had given him her e-mail address and password. At trial, J.P. denied doing so and said Brooks had no authorization to access her e-mails.

“The State charged Brooks with one count of rape [under K.S.A.2005 Supp. 21–3502(a)(1)(A) ], one count of attempted rape, two counts of blackmail, and one count of breach of privacy. The 4–day jury trial began on July 21, 2008. The jury found Brooks not guilty of attempted rape (stemming from his return to J.P.'s home on May 12) and convicted him on all of the remaining counts. On September 5, 2008, the trial court sentenced Brooks to 155 months in prison on the rape conviction, 12 months in prison on each blackmail conviction, and 12 months in the county jail on the breach of privacy conviction. Each of those terms of incarceration reflects a standard guideline sentence based on Brooks' lack of any past criminal conduct. The trial court ordered Brooks to serve the blackmail sentences consecutive to each other and consecutive to the rape sentence. The jail time was made concurrent to the other sentences, yielding a controlling term of incarceration of 179 months.” Brooks, 46 Kan.App.2d at 603–05 .

On appeal before the Court of Appeals, Brooks argued that the State presented insufficient evidence to convict him of rape and breach of privacy. With regard to the rape charge, Brooks argued that he was charged with alternative means of committing rape based on the language of K.S.A.2005 Supp. 21–3502(a)(1)(A), defining rape as sexual intercourse with a person who does not consent to the sexual intercourse, under circumstances “[w]hen the victim is overcome by force or fear.” (Emphasis added.) Based on the super-sufficiency requirement for evidence in an alternative means case, see State v. Wright, 290 Kan. 194, 203–06, 224 P.3d 1159 (2010), Brooks argued that the State failed to present sufficient evidence that J.P. was overcome by either force or fear when she submitted to having sex with him. Accordingly, he argued that his conviction for rape had to be reversed due to insufficient evidence.

The Court of Appeals addressed Brooks' argument by first determining whether the phrase force or fear established alternative means of committing rape. The court noted that the issue was important because if force or fear established a single means, “then the evidence need only support one or the other to uphold a verdict of guilty.” Brooks, 46 Kan.App.2d at 608, 265 P.3d 1175. Conversely, if force or fear established alternative means, then the evidence presented at trial had to be sufficient to support each means. 46 Kan.App.2d at 608–09, 265 P.3d 1175.

Based on what it perceived as this court's construction of the phrase in Wright, the Court of Appeals concluded that force or fear should be construed as establishing a single means of committing rape. 46 Kan.App.2d at 609–10, 265 P.3d 1175. The court then reasoned that

“there must be some commonality or relationship between the type of force that suffices to violate the rape statute and the fear that does. In other words, the victim must be fearful of the sort of force contemplated in...