State v. Bunyard

• Citation: 31 Kan.App.2d 853,75 P.3d 750
• Decision Date: 29 August 2003
• Docket Number: No. 88,546,88,546
• Parties: STATE OF KANSAS, Appellee, v. JOSIAH R. BUNYARD, Appellant.
• Court: Court of Appeals of Kansas

31 Kan.App.2d 853

75 P.3d 750

STATE OF KANSAS, Appellee, v. JOSIAH R. BUNYARD, Appellant.

No. 88,546

Court of Appeals of Kansas

Opinion filed August 29, 2003.

Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, and Paige A. Nichols, of Lawrence, for appellant.

Boyd K. Isherwood, assistant district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, for appellee.

Before MARQUARDT, P.J., PIERRON and JOHNSON, JJ.

MARQUARDT, J.:

Josiah R. Bunyard appeals his conviction for one count of rape. We affirm.

In February 2001, Bunyard was charged with the rape of E.N. and two other women. At trial, E.N. testified that in August 2000, 17-year-old E.N. was at the home of Megan and Kristen Bloom where she met 21-year-old Bunyard. E.N. and Bunyard talked and flirted a bit. E.N. testified that Bunyard playfully tried to remove her bathing suit top, but after repeated attempts, she asked him to stop because she became uncomfortable. In spite of that incident, E.N. and the Blooms invited Bunyard and his friends to return the next evening for a party.

E.N. testified that she consumed "a few wine coolers" at the party the next evening. E.N. testified that Bunyard asked her to accompany him to his car to watch a movie. She agreed. A mutual friend went with them. E.N. and Bunyard sat in the back seat. E.N. allowed Bunyard to put his arm around her. After their friend got out of the car, Bunyard removed E.N.'s clothing and began to kiss her. E.N. kissed Bunyard while he removed her clothing and touched her breasts. E.N. testified that she was "okay" with the kissing but she was not okay with him removing her clothing or touching her breasts. Bunyard removed his pants, put on a condom, and laid E.N. down on the car seat. E.N. said that she did not want to have intercourse with Bunyard, but she did not say anything to him about it.

E.N. testified that Bunyard "forced himself" on her and put his penis inside her vagina. At that point, E.N. testified that she told Bunyard, "I don't want to do this. Please don't make me do this." E.N. estimated that she told Bunyard to stop "[a] few seconds" after he inserted his penis into her vagina. Bunyard did not stop, and told E.N., "Just a little bit longer." E.N. again told Bunyard that she did not want to have intercourse with him but he did not stop. E.N. testified that she attempted to sit up and roll over onto her stomach but she was unable to. E.N. testified that she could move, but Bunyard did not stop the intercourse. E.N. started to cry and told Bunyard, "I don't want to get hurt. Please don't do this to me."

E.N. testified that the intercourse lasted for 5 to 10 minutes before Bunyard finally stopped. Bunyard suggested that she perform oral sex on him. E.N. did not agree. Bunyard and E.N. got dressed and exited the vehicle.

E.N. testified that she was crying, and told Megan and Kristen Bloom what happened. E.N. did not want to call the police because she was afraid her parents would find out that she had been drinking. E.N. eventually told her parents and she reported the incident to the police.

E.N. went to the hospital 4 days after the incident. Several abrasions were found in her genital area. The nurse who examined E.N. testified that the abrasions were consistent with blunt force trauma which would be sustained in a mounting position. However, the nurse testified that such injuries could also occur during consensual sexual intercourse.

Bunyard testified that on the first night they met, E.N. persisted in asking to go for a ride in his car. He denied trying to remove E.N.'s bathing suit top. Instead, he testified that E.N. repeatedly tried to remove his hat. Bunyard described E.N.'s actions as "wrestling" with him.

Bunyard testified that on the evening of the party, E.N. again asked to go for a ride in his car. Bunyard, E.N., and two of Bunyard's friends got into the car and went for a ride. Bunyard testified that E.N. "reached up and started kissing me and grabbing on my chest." Bunyard testified that at that point, he stopped the car and got in the back seat with E.N. He and E.N. began kissing 15-20 minutes into the movie. He claimed that E.N. asked the other men to get out of the car.

Bunyard admitted that he removed his and E.N.'s shirt. He testified that E.N. removed her own pants. Bunyard testified that E.N. never told him to stop, and that she never said she did not want to have intercourse. According to Bunyard, E.N. was on top of him during the intercourse. Bunyard testified that E.N. asked him if he was interested in having a relationship and if he would call her the following day. Bunyard responded in the negative and E.N. discontinued the intercourse because she was upset. Bunyard testified that his entire encounter with E.N. was consensual.

A jury convicted Bunyard of the rape involving E.N. and acquitted him on the other rape charges involving the two other women. Bunyard was sentenced to 221 months' incarceration. Bunyard timely appeals his conviction and sentence.

Sufficiency of Evidence

Bunyard claims that under the unique circumstances of this case, no rational factfinder could have found him guilty beyond a reasonable doubt of raping E.N.

When the sufficiency of the evidence is attacked, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Zabrinas, 271 Kan. 422, 441-42, 24 P.3d 77 (2001).

Bunyard argues that E.N. was a willing participant until after penetration occurred. Bunyard contends that rape occurs at the time of initial penetration, or not at all. Bunyard also contends that there can be no rape even if a party later withdraws consent.

K.S.A. 2002 Supp. 21-3502 defines rape as:

"(1) Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:

"(A) When the victim is overcome by force or fear."

K.S.A. 21-3501(1) defines "sexual intercourse" as:

"[A]ny penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse."

The issue of whether consent may be withdrawn after penetration is one of first impression in this state; therefore, case law from other jurisdictions is instructive.

In Battle v. State, 287 Md. 675, 683-84, 414 A.2d 1266 (1980), the Court of Appeals of Maryland held that consent must precede penetration. In other words, if a woman consented to a sexual encounter, even to intercourse, and consent is withdrawn prior to penetration, she did not consent to sexual intercourse. However, if she consents prior to penetration and withdraws the consent following penetration, there is no rape.

In reviewing case law from jurisdictions other than Maryland, we conclude that the Battle holding has not been adopted by other courts. In fact, the Appellate Court of Connecticut specifically rejected an argument identical to Bunyard's. In State v. Siering, 35 Conn. App. 173, 644 A.2d 958 (1994), the defendant argued that if there is consent at the moment of penetration, the subsequent withdrawal of consent and continuation of intercourse accompanied by force cannot convert consensual intercourse into rape. In making this argument, the defendant noted that Connecticut law defines "sexual intercourse" as penetration, however slight. 35 Conn. App. at 180-81. The Connecticut court stated that the defendant's interpretation of the statute would produce bizarre results. 35 Conn. App. at 182. The court concluded that a victim may withdraw consent after penetration has occurred. 35 Conn. App. at 184-85.

In State v. Robinson, 496 A.2d 1067, 1070 (Me. 1985), the Supreme Judicial Court of Maine found that ongoing intercourse, initially consented to by the victim, becomes rape when and if the victim submits to the sexual assault because of physical force or fear.

We note that Bunyard cites People v. Vela, 172 Cal. App. 3d 237, 218 Cal. Rptr. 161 (1985), where the victim consented to intercourse at the time of penetration but later withdrew her consent. According to Vela, the presence or absence of consent at the moment of initial penetration appears to be the crucial point in the crime of rape. However, the California Supreme Court, in the case of In re John Z., 29 Cal. 4th 756, 124 Cal. Rptr. 783, 60 P.3d 183 (2003), found the reasoning used in Vela to be "unsound" and "clearly flawed." The John Z. court held that "the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection." 29 Cal. 4th at 760.

Nowhere in the definition of K.S.A. 2002 Supp. 21-3502 does it state that the act of sexual intercourse ends with penetration. Instead, the definition of "sexual intercourse" found at K.S.A. 21-3501 merely establishes a minimum amount of contact necessary to prove the offense.

It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001).

We believe that the definition of rape espoused by Bunyard leads to a tortuous interpretation of K.S.A. 2002 Supp. 21-3502.

Quite simply, sexual intercourse performed when one participant is under force or fear is rape. It does not matter if the force or fear exists at the initiation of the act or whether it comes after consent is withdrawn. The act is rape under either circumstance. A...