State v. Bunyard

Decision Date28 April 2006
Docket NumberNo. 88,546.,88,546.
Citation133 P.3d 14
PartiesSTATE of Kansas, Appellee, v. Josiah R. BUNYARD, Appellant.
CourtKansas Supreme Court

Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, argued the cause, and Paige A. Nichols, of Lawrence, was with him on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by


Josiah R. Bunyard petitions this court for review of the Court of Appeals' decision affirming his conviction of rape (K.S.A.2004 Supp. 21-3502[a][1]) in State v. Bunyard, 31 Kan.App.2d 853, 75 P.3d 750 (2003). We granted his petition on three issues: (1) joinder of three rape charges in one complaint, K.S.A. 22-3202(1); (2) an issue of first impression regarding whether it is rape when the initial penetration was consensual but consent was withdrawn and the intercourse continued for a period of time; and (3) prosecutorial misconduct during closing argument. We reverse the decision of the Court of Appeals affirming the district court, reverse the district court, and remand for a new trial.

The defendant was charged with three counts of rape stemming from three separate incidents with acquaintances in 1999, 2000, and 2001. The prosecutor combined all three charges into one information filed on February 5, 2001. The defendant's motion to sever the charges was denied by the district court. He was acquitted of two of the charges but was found guilty of raping E.N. As the defendant was acquitted on two of the charges, the facts of those cases will only be discussed as they relate to the severance issue raised by the defendant on a petition for review.

The defendant was 21 years old when he met E.N. at a pool party at the home of a mutual friend. E.N., who was 17 years old, flirted with the defendant. She thought the defendant was "cool" so she invited him to a party at her friend's house the following night.

The defendant and friends attended the party the next night. After talking with E.N. for awhile, the defendant invited her to watch a movie in his car with another one of his friends. The defendant drove a Chrysler Sebring two-door convertible with a DVD player built in the dash. The defendant put the car's convertible top up before they began watching the movie.

After the defendant's friend left the car, the defendant and E.N. began kissing. E.N. did not object when the defendant removed her clothing. Likewise, she did not object when the defendant removed his clothing and placed a condom on his penis. However, after the defendant laid E.N. back in the seat and penetrated her vagina with his penis, E.N. said, "I don't want to do this." The defendant did not stop, replying, "Just a little bit longer." E.N. again stated that she did not "want to do this," but the defendant did not stop. E.N. testified that she unsuccessfully tried to sit up and roll over on her stomach to get away from the defendant. After 5 or 10 minutes had passed, E.N. began to cry, and the defendant stopped having sexual intercourse with her. The defendant told her she had given him "blue balls," and E.N. declined his request for her to perform oral sex.

The defendant testified that E.N. was on top of him during consensual intercourse and they were talking. E.N. asked him if he wanted a relationship and if he planned on calling her the next day. When the defendant said he was not interested in a relationship, E.N. became upset, got off of him, and told him about how she had been hurt by other guys in the past. E.N. wanted to continue kissing and wanted him to stay in the car and hold her, but the defendant did not stay in the car and told her to get dressed.

E.N. went back into the house visibly upset and told K.B. that she had been taken advantage of, that the defendant had gotten inside of her, and that she had said "no" more than once. M.B. also spoke with E.N., who was crying. M.B. testified that E.N. said, "I was raped. We had sex. I said no." E.N. did not want to report the incident to the police at that time because she did not want her parents to find out that she had been drinking.

Four days later, E.N. reported the incident to the police, and she was examined at the local hospital. The sexual assault examiner detected a cluster of abrasions consistent with blunt force trauma in E.N.'s vagina. The examiner testified that the location of the abrasions was consistent with mounting injuries. Although consensual sex could not be ruled out, the examiner testified that mounting injuries are more commonly found after nonconsensual sexual intercourse.

The defendant appealed his conviction for one count of rape to the Court of Appeals. In a divided opinion, the majority affirmed the defendant's conviction. Judge Johnson, however, dissented on one of the issues and concluded that the defendant should be given a new trial. We granted the defendant's petition for review. Because we are reversing and remanding for new trial based upon prosecutorial misconduct, we elect only to consider the defendant's arguments regarding the denial of his motion to sever the three rape charges, whether the trial court's referral to the rape jury instruction was sufficient to answer the jury's question concerning whether post-penetration conduct can constitute rape, and whether the prosecutor committed reversible misconduct during closing argument.

Joinder of Charges

The defendant was tried on three rape charges joined in one complaint: Count I, involving a December 7, 1999, incident with A.P.; Count II, the August 2000 incident involving E.N.; and Count III, a January 2001 incident involving L.B. The defendant was acquitted by the jury on Counts I and III.

The defendant claims that the trial court erred when it repeatedly denied his motions to sever the three rape charges into three separate trials. He argues that he was prejudiced by jury confusion, improper admission of evidence regarding the unrelated charges, and violation of his right to silence. According to the defendant, the jury confusion resulted from the jury's inability to disassociate the evidence for each of the charges and the "smear effect" of showing evidence suggesting the defendant's propensity to commit date rape.

If the charge related to E.N. had been separately tried, the defendant argues that the State could not have admitted evidence of the other two accusations under K.S.A. 60-455, which precludes the admission of other crimes evidence unless it proves motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The defendant further argues that his right against self-incrimination was violated because he could not testify regarding only one of the charges, like he wanted, without raising a concern about why he did not testify regarding the other charges.

The charging of multiple crimes as separate counts in one complaint is authorized by K.S.A. 22-3202(1), which provides:

"Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

In State v. Barksdale, 266 Kan. 498, 973 P.2d 165 (1999), severance was extensively discussed. We stated, inter alia:

"This court has on numerous occasions throughout its history addressed the subject of whether crimes are of the same or similar character so as to permit their joinder. In State v. Hodges, 45 Kan. 389, 392, 26 Pac. 676 (1891), we stated:

`Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. [Citations omitted.] The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial, but all this rests in the sound judicial discretion of the trial court.'

"This standard has been reiterated many times by this court. See State v. Bagby, 231 Kan. 176, 178, 642 P.2d 993 (1982); State v. Gander, 220 Kan. 88, 90, 551 P.2d 797 (1976); State v. Brown, 181 Kan. 375, 381-82, 312 P.2d 832 (1957); State v. Powell, 120 Kan. 772, 784, 245 Pac. 128 (1926); State v. Warner, 60 Kan. 94, 98, 55 Pac. 342 (1898)." 266 Kan. at 507, 973 P.2d 165.

As to appellate review of denial of severance, we have additionally stated:

"Whether a defendant will be tried on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion." (Emphasis added.) State v. Hill, 257 Kan. 774, Syl. ¶ 3, 895 P.2d 1238 (1995).

Our research has disclosed only one case where we have reversed a conviction after a trial court denied severance: State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971). In Thomas, multiple charges were filed stemming from two unrelated and very different incidents. Arising from one incident, defendant was charged with first-degree murder, robbery, and unlawful possession of a pistol. Charges arising from the second incident were burglary, larceny, three counts of forgery, and three counts of uttering.

The two groups of charges were consolidated for trial. No instruction was given to the jury directing it to consider the evidence as to each case as only applicable to that case.

After determining the two groups of charges were not similar and that the order of consolidation constituted an abuse of...

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