State v. Flynn

• Decision Date: 24 June 2011
• Docket Number: No. 103,566.,103,566.
• Citation: 257 P.3d 1259,45 Kan.App.2d 1113
• Parties: STATE of Kansas, Appellee,v.Ira Wayne FLYNN, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 1113

257 P.3d 1259

STATE of Kansas, Appellee,

v.Ira Wayne FLYNN, Appellant.

No. 103,566.

Court of Appeals of Kansas.

June 24, 2011.

[257 P.3d 1260 , 45 Kan.App.2d 1113]

Syllabus by the Court

1. If there is sufficient evidence to support it, a defendant is entitled to instructions on the law applicable to his or her theory of defense.

2. Evidence of the defendant's theory of defense can be supported by the defendant's own testimony.

3. The testimony concerning the defendant's theory of defense must be such that, when viewed in the light most favorable to the defendant, a rational fact finder would be justified in finding in accordance with that theory.

4. In accordance with our Supreme Court's ruling in State v. Bunyard, 281 Kan. 392, 414–15, 133 P.3d 14 (2006), a person may be convicted of rape if consent is withdrawn after the initial consensual penetration but intercourse is continued by the use of force or fear. However, when consent is withdrawn after penetration the defendant is entitled to a reasonable time in which to act after the withdrawn consent is communicated to the defendant. Whether the termination of intercourse occurs within a reasonable time is to be determined by the jury, taking into account the manner in which consent was withdrawn and the particular facts of each case.

5. If the facts of a rape case support a theory of defense consistent with termination of sexual intercourse within a reasonable time after consent is withdrawn, an instruction consistent with our Supreme Court's ruling in State v. Bunyard, 281 Kan. 392, 415–16, 133 P.3d 14 (2006), must be given.

Carol Longenecker Schmidt and Heather Cessna, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Steve Six, attorney general, for appellee.Before MALONE, P.J., PIERRON and ARNOLD–BURGER, JJ.ARNOLD–BURGER, J.

Ira Wayne Flynn argues that the jury should have been instructed at his rape trial that he had a reasonable time to cease consensual sexual intercourse once the victim told him to stop. Finding that such an instruction was warranted and had it been given the jury might have acquitted him of rape, we reverse and remand.

Facts

Flynn and A.S. drove together to a party. While at the party, Flynn and A.S. drank alcohol and played games. Flynn testified that he started to feel sick because he had consumed too much alcohol and OxyContin. He wanted to leave, and A.S. offered to give him a ride home. Flynn wanted to drive and A.S. let him. They ended up at the scene of the alleged rape. Flynn testified that they both exited the vehicle and met at the front of the car. They took each other's clothes off and began to have consensual sex on the hood of the car. Flynn testified A.S. performed consensual oral sex on him. Flynn and A.S. ended up on the ground, and at that point, according to Flynn, A.S. told Flynn to stop and that she did not want to continue on the ground. Flynn did not stop immediately and testified that it took him anywhere from 30 seconds to 2 minutes to stop. A.S. testified that Flynn then forced her to have sex in the backseat of the car. Flynn denied anything happened inside the car. After their final encounter, they both agreed that Flynn put his clothes back on and helped A.S. put her clothes back on.

A.S. testified that the entire encounter between herself and Flynn was nonconsensual and that he raped her three times while she was overcome by force or fear; he forced her to perform oral sex on him; and he took her to the location against her will and forcibly prevented her from leaving once they got there.

After A.S. and Flynn parted company, Flynn continued to drink alcohol. He called A.S. and indicated that he had “ ‘fucked up’ ” and that he would probably go to jail for 2 years. He later explained at trial that he was on probation for possession of marijuana and he believed his probation would be revoked for drinking and doing drugs. He believed he faced 2 years in jail if his probation was revoked. He explained that he was aware that a rape charge would carry more than 2 years in prison and that he never contemplated that A.S. would claim he raped her. He only feared that it would be discovered he had violated his probation.

Flynn was eventually charged with one count of aggravated kidnapping, one count of kidnapping, three counts of rape, and one count of aggravated criminal sodomy.

At Flynn's trial, after the presentation of State's witnesses, the trial judge and the parties discussed whether any special jury instructions should be submitted and considered. The trial judge and Flynn's counsel discussed a special instruction regarding a defendant's responsibility to cease intercourse within a reasonable time after the victim withdraws her consent. The trial judge indicated that he did not plan to give a special instruction, but if Flynn's counsel wanted to draft the instruction and request it be given to the jury, then he would consider it again. Almost immediately thereafter, the trial judge stated that he was not going to give the instruction, because Flynn's counsel had not specifically requested that the instruction be given. The trial judge said that he would wait to see if the jury asked a question about it.

That evening, at the close of all the evidence, neither party objected to the jury instructions suggested, nor did the parties request any additional jury instructions.

After a 4–day trial, the jury found Flynn guilty of one count of rape, pertaining to the encounter on the ground in front of the car. He was acquitted of all other charges. He was sentenced to an aggravated sentence of 186 months' imprisonment.

ANALYSIS

The trial court erred by failing to give an instruction regarding the defendant's responsibility when the victim withdraws consent during intercourse.

Flynn asserts that the trial court erred when it failed to give the jury a special instruction, based on State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006), that a defendant has a reasonable amount of time to end the intercourse after the victim withdraws her consent. Flynn believes that there is a real possibility that the jury's verdict would have been different if it had been given what has been referred to as the Bunyard instruction.

If there is sufficient evidence to support it, a defendant is entitled to instructions on the law applicable to his or her theory of defense. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). Evidence of the defendant's theory of defense can be supported solely by the defendant's own testimony. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008). However, the testimony must be such that, when viewed in the light most favorable to the defendant, a rational fact finder would be justified in finding in accordance with that theory. 287 Kan. 325, Syl. ¶ 1, 197 P.3d 409.

Because Flynn did not request or proffer an instruction regarding withdrawal of consent and he did not object to its omission, we apply a clearly erroneous standard of review. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” 288 Kan. at 451–52, 204 P.3d 601.

In determining whether an instruction was required and, if given, would have made a difference in this case, a brief review of our Supreme Court's ruling in Bunyard is in order.

In Bunyard, there was no dispute that the sexual intercourse between the defendant and the victim was initially consensual, but the victim withdrew her consent after the defendant had already penetrated her. The Kansas Supreme Court held “that the defendant should be entitled to a reasonable time in which to act after consent is withdrawn and communicated to the defendant.” 281 Kan. at 414, 133 P.3d 14. Moreover, the Bunyard court ruled that, in response to a jury question, “the trial court had a duty to instruct the jury that post-penetration rape can occur under Kansas law and that the defendant has a ‘reasonable time’ to respond to the withdrawal of consent.” 281 Kan. at 415, 133 P.3d 14. Furthermore, our Supreme Court held that “[a] reasonable time depends upon the circumstances of each case and is judged by an objective reasonable person standard to be applied by the trier of fact on a case-by-case basis.” 281 Kan. at 416, 133 P.3d 14. Recognizing that it always encourages trial courts to follow the Pattern Instructions for Kansas (PIK) and recognizing that no such instruction existed in PIK for this situation, the Supreme Court outlined with approval responses to jury questions that had been given in other states under similar circumstances. 281 Kan. at 415–16, 133 P.3d 14.

Shortly after Bunyard, the following paragraph was added to the comments section of PIK Crim.3d 57.01:

“A person may be convicted of rape if consent is withdrawn after the initial consensual penetration but intercourse is continued by the use of force or fear. However, when consent is withdrawn after penetration the defendant is entitled to a reasonable time in which to act after the withdrawn consent is communicated to the defendant. Whether the termination of intercourse occurs within a reasonable time is to be determined by the jury, taking into account the manner in which consent was withdrawn and the particular facts of each case. [Citation omitted.]”

Since Bunyard was decided, this court has recognized that if the facts support a Bunyard instruction one must be given. See State v. Robinson, No. 99,443, 2009 WL 1140256 (Kan.App.2009), rev. denied 290 Kan. 1102 (2010) (unpublished opinion) (finding that the facts did not support the giving of such an instruction).

Turning back to this case, Flynn testified that at the time he and A.S. ended up on the ground, the sexual encounter was consensual. A.S. told Flynn to stop...