IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,546
STATE OF KANSAS,
Appellee,
v.
JOSIAH R. BUNYARD,
Appellant.
SYLLABUS BY THE COURT
1. 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.
2. 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.
3. Generally, the defendant must object to the prosecutor's remarks to preserve a claim of prosecutorial misconduct for appeal. However, if the remarks implicate the defendant's right to a fair trial or to due process, the issue of prosecutorial misconduct will be addressed without a contemporaneous objection.
4. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and denied him or her a fair trial, thereby requiring reversal. The second step is a particularized harmless error inquiry for prosecutorial misconduct cases.
5. In the second step of the two-step analysis for alleged prosecutorial misconduct, the appellate court considers three factors to determine if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct is gross and flagrant, (2) whether the misconduct shows ill will on the prosecutor's part, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), have been met.
6. Under K.S.A. 22-3420(3), a trial court is required to respond to a jury's request for further information as to any part of the law or evidence. The manner and extent of the trial court's response, however, rests in the sound discretion of the trial court.
7. The interpretation of a statute is a question of law subject to de novo review. The fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be determined. An appellate court presumes that the legislature articulated its intent through the language of the statute. If the language is plain and unambiguous, the court must give effect to the language as written without determining what the law should or should not be.
8. Penal statutes are to be construed strictly in favor of the accused. Ordinary words are given their ordinary meanings. A court should not read a statute to add something that is not found in the language of the statute or to delete something that is clearly found in the language of the statute.
9. K.S.A. 2004 Supp. 21-3502(a)(1)(A) proscribes all nonconsensual sexual intercourse that is accomplished by force or fear, not just the initial penetration. Thus, a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear.
10. In the case of consensual intercourse and withdrawn consent, a defendant is entitled to a reasonable time in which to act after consent is withdrawn. A reasonable time depends upon the circumstances of each case and is judged by an objective reasonable person standard to be determined by the trier of fact on a case-by-case basis.
11. Under the facts of this case, the trial court failed to provide the jury with a complete answer to its question concerning the charge of rape. In addition to setting forth the elements of rape, the trial court should have indicated to the jury that rape may occur even though consent was given to the initial penetration, but only if the consent was withdrawn and communicated to the defendant, and the defendant continues the sexual intercourse beyond a reasonable time, when the victim is overcome by force or fear.
Review of the judgment of the Court of Appeals in 31 Kan. App. 2d 853, 75 P.3d 750 (2003). Appeal from Sedgwick district court; JAMES FLEETWOOD and REBECCA L. PILSHAW, judges. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded with directions. Opinion filed April 28, 2006.
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
DAVIS, J.: 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.
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 discretion, we stated:
"Even though the trial court's order of consolidation is said to be an abuse of discretion, defendant still has the burden of showing prejudice that requires a reversal. Defendant says that since his defense to the murder charge was that the shooting was accidental, he was compelled to take the witness stand to explain the circumstances. As a result, defendant states he was forced to admit the forgery and uttering charges (he denied any participation in the . . . burglary), and thus was put in the position of submitting, as an admitted forger, his defense of accidental shooting in the murder case. He claims this circumstance destroyed any possibility that the jury would give credence to his claim that the shooting of [the victim] was accidental. Whether the jury would have believed defendant's description of the shooting, absent the influence of the forgery admissions by defendant, is not for us to decide. It must be conceded the jury may have been unduly influenced, particularly in the absence of any instruction in this regard." 206 Kan. at 609-10.
We concluded the defendant had carried his burden of proof as to prejudice and ordered new separate trials as to each group of charges.
In our case law prior to Thomas, and the 30-plus years since Thomas, numerous claims of abuse of judicial discretion relative to joinder or denial of severance have been before Kansas appellate courts. None have been successful.
State v. Barksdale, previously cited, involved two unrelated murders that were joined for trial over the defendant's objection. In Barksdale, we stated:
"The defendant argues that the two murders were not similar in that (1) the Davis murder carried with it an additional underlying felony of aggravated criminal sodomy that the Forgie murder did not; (2) Davis was a personal friend of the defendant, while Forgie was a stranger; (3) strangulation was the cause of Forgie's death but not the cause of death in the Davis murder; (4) a knife was used in the Forgie murder, not a blunt instrument as used in the Davis murder; and (5) the same evidence was not necessary in order to prove both crimes and with the exception of Joe Campbell, none of the witnesses were the same for both cases.
"The question is whether the trial court's determination that the crimes were similar and, thus, subject to joinder was a decision with which no reasonable person would agree. In both cases, robbery was the motive. The manner in which each victim was killed was substantially similar. Davis was strangled and received a blunt trauma to the head. Forgie was also strangled and received a blunt trauma to the head as well as stab wounds. Although the defendant claims that strangulation was not the method of Davis' actual death, it is clear from the evidence that both victims had been strangled. Blunt trauma could have been the method of both deaths as it was unclear whether Forgie died as the result of strangulation, stab wounds, blunt trauma, or a combination of the three. Both victims were found face down and tied with cords. The two murders were committed within 9 months of one another in the same general neighborhood in Wichita. While it is true that only one witness, Joe Campbell, was common to both cases, it is also true that both cases generally required the same mode of trial and the same kind of evidence, and resulted in the same kind of punishment.
"The facts and nature of the charges in this case are similar to those in other cases where we found joinder to be proper. In [State v.] Cromwell [253 Kan. 495, 856 P.2d 1299 (1993)], we found joinder to be proper where both victims were mature women who lived alone and knew the defendant despite the fact that 4 years had passed between the murders. See 253 Kan. at 511. In State v. Hill, 257 Kan. 774, 780, 895 P.2d 1238 (1995), we found no abuse of discretion in joining four cases where (1) the incidents occurred in the same neighborhood within a span of around a month; (2) the attacker was similarly dressed in two of the incidents; (3) two of the incidents involved rape, while in the other two incidents the attacker was seen by the victim while he was still some distance away which might have altered his plans; (4) similar items were taken from each residence; and (5) in each case the victims were instructed to roll over on their stomachs and the attacker placed a pillow on their heads. In Bagby, we found joinder proper when in each instance aggravated burglary preceded some sexual act such as rape and aggravated sodomy and the victims described the assailant as a black man with a screwdriver or an ice pick. 231 Kan. at 178.
"Under the requirements of K.S.A. 22-3202(1), and our prior case law from Hodges to the present, the crimes with which the defendant was charged are not only sufficiently factually similar but also sufficiently similar in mode of trial and kind of evidence required, as well as punishment prescribed, that we cannot say that no reasonable person would agree with their joinder." 266 Kan. at 508-09.
Barksdale, like the defendant herein, sought to raise the requirements for joinder to the much higher requirements of admission of evidence under K.S.A. 60-455. We rejected this claim, stating:
"Nevertheless, the defendant argues that we should adopt a different test, viz., that joinder for trial of separate offenses may be granted only where the other separate crimes charged and tried in the same trial would be admissible under K.S.A. 60-455 as prior bad acts or crimes. However, this court has not so limited the joinder rule. We have commented that where the evidence of crimes joined for trial would have been admissible under K.S.A. 60-455 in a separate prosecution, the defendant is unable to demonstrate any prejudice when the crimes are tried in a single trial. See Cromwell, 253 Kan. at 509-11. At the same time, Kansas case law and the provisions of K.S.A. 22-3202(1) make it clear that joinder is not dependent upon the other crimes being joined meeting the admissibility test set forth in K.S.A. 60-455. See K.S.A. 22-3202(1); Bagby, 231 Kan. at 178-79; Brown, 181 Kan. at 382-83; [State v.] Toelkes, 139 Kan. [682,] 684 [, 33 P.2d 317 (1934)].
"While the defendant argues that it was error in this case to allow evidence of each separate homicide because it was inadmissible under K.S.A. 60-455, and because such evidence was more prejudicial than probative, this assertion lacks merit. In Cromwell, we held that where separate but similar criminal charges are joined in a single trial, evidence material to each crime is admissible independent of K.S.A. 60-455. See 253 Kan. at 509. In the case at hand, the jury was specifically instructed:
'Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it; uninfluenced by your decision as to any other charge. . . .'
"The defendant's contention that the prejudicial value of the evidence of one crime outweighs its probative value begs the question and fails to recognize that evidence of both crimes was admissible independent of K.S.A. 60-455. We conclude that the trial court did not abuse its discretion in joining the two homicide charges." 266 Kan. at 509-10.
In this case, Judge Johnson dissented from the majority opinion in the Court of Appeals' decision on the severance issue. He concluded that denial of severance was an abuse of judicial discretion because: (1) The crimes were not of the same or similar character, (2) trying the three cases together "jumbled" the defense, (3) there was no persuasive argument for consolidation of the charges, and (4) the prosecution delayed filing some of the rape charges and filed them together to strengthen the weaker cases. A majority of this court finds no merit in these conclusions.
The facts underlying the three rape counts herein are extremely similar–not only as to what occurred, but as to what did not occur.
Count I: A.P. was an acquaintance of the defendant. She went to his residence and fell asleep on his bed. She testified she awoke as he was disrobing her. Also present throughout the incident was a friend of the defendant, who testified he saw and heard only consensual sex acts. The defense was consent.
Count II: At a party, the defendant and E.N., along with two other persons, went to the defendant's car to watch a movie. The other persons left. The defendant and E.N. were in the backseat and started engaging in consensual sexual activity. E.N. testified that after penetration, she said no for the first time. The defense was consent and that consent cannot be withdrawn after penetration.
Count III: The defendant went to see L.B., a former girlfriend. She showed him around the apartment. In the bedroom she backed up, touched the edge of the bed, and fell back on it. The defendant got on top of her. She testified she said no. The defense was consent.
There are also similarities in what did not occur. None of the three complaining witnesses testified that the defendant used a weapon, made threats, tied her up, beat her, acted in anger, or sought to demean or otherwise injure her. Essentially, what each complaining witness described was a wrestling match. This occurred as to E.N. after she withdrew her consent following the initial penetration.
Crimes against persons, particularly including sex crimes and crimes against children, have variances in the facts. No such crime is a clone of another. It is ironic that the major change in the law of joinder and severance sought herein is in a case with the greatest similarity of crimes as compared with prior cases on this issue.
The argument relative to "jumbling defenses" is inscrutable. The defense to each count was consent. The jury acquitted the defendant of two of the three counts. The only conviction came in the count with the mid-act withdrawal of consent. The majority Court of Appeals opinion stated:
"The jury was instructed that each crime is a separate and distinct offense, and each charge must be decided independent of the others. Bunyard maintains that we cannot assume lack of prejudice by the fact that he was acquitted of two of the charges. However, we find the acquittals to be compelling evidence of the jury's ability to differentiate the applicability of evidence. Bunyard argues that joining the charges led the jury to believe that he had a propensity for acquaintance rape. We believe there is no basis for this statement." State v. Bunyard, 31 Kan. App. 2d 853, 864, 75 P.3d 750 (2003).
We find the foregoing reasoning persuasive and agree.
We are also persuaded by the federal courts, which, when faced with a statute similar to ours, in essence hold that joinder of similar crimes is the rule and severance is the exception. As stated in United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980):
"We have held that joinder is the rule rather than the exception and that the burden is on the defendant in his appeal following denial of the motion to sever to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever." 621 F.2d at 954.
Likewise, the United States Supreme Court has held that error due to misjoinder requires reversal only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." United States v. Lane, 474 U.S. 438, 449, 8 L. Ed. 2d 814, 106 S. Ct. 725 (1986) (adopting a harmless error standard for misjoinder of defendants); see also United States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988); Mitchell v. Nevada, 105 Nev. 735, 782 P.2d 1340 (1989) (applying the Lane standard to misjoinder of claims against one defendant based on United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987). There is no evidence of any such influence or effect on the guilty verdict rendered in the count involving the rape of E.N., especially given that the jury acquitted on the other two rape counts joined therewith. See State v. Davis, 277 Kan. 231, 241, 83 P.3d 182 (2004) (the fact that the jury found some defendants not guilty as to all charges demonstrated the jury's ability to compartmentalize the evidence and charges against each defendant); cf. Mitchell, 105 Nev. at 738 (finding acquittal of sexual assault count involving one victim and conviction of sexual assault and murder of a second victim indicated error was harmless).
As we stated in State v. Howell, 223 Kan. 282, 284, 573 P.2d 1003 (1977), a defendant's expressed desire to testify as to some but not all of the charges does not mandate a reversal of joinder. To hold otherwise would put the defendant in the driver's seat and cause great strains on our court system. The burden is on the defendant to show special circumstances as to why severance is mandated.
The comments in Judge Johnson's dissent in the Court of Appeals' opinion about the age and relative strength or weakness in the various counts are speculation and are not appropriate considerations when reviewing joinder-severance issues for abuse of judicial discretion. We are unaware of any case law which mandates that only cases of equal strength or weakness may be joined together. Further, the time span between all three incidents occurred within slightly over 1 year and, accordingly, the time span is not significant for severance considerations.
In summary, we find the trial court did not abuse its discretion in denying the motion to sever the three rape counts into three separate jury trials. Granting such a motion in this case is not justified by the joinder statute or our well established case law. The "same or similar character" language of K.S.A. 22-3202(1) does not limit joinder to only those crimes that are clones of each other. Such a narrow interpretation would frustrate the very purpose of the joinder statute. Moreover, the interpretation suggested by the defendant would place the defendant in control of joinder/severance issues. If he or she is charged with 10 residential burglaries, ostensibly, separate jury trials may be had as to each by showing minor differences in the crimes such as entering through a door or window, time of day of the entry, or items taken or not taken. By raising these minor differences, plus arguing the defendant's desire to testify only as to some counts, severance would be required. Severance would become the rule, setting judicial economy on its head.
Joinder is the rule and severance the exception. Our standard of review on this issue is abuse of discretion. As we held in Barksdale, the question is whether the trial court's decision that the crimes were similar and therefore subject to joinder was a decision with which no reasonable person would agree. We answer that question in the negative and find that the defendant failed to demonstrate an abuse of judicial discretion in the trial court's denial of his motion to sever the three rape counts and conduct three separate jury trials.
Prosecutorial Misconduct
The defendant claims that his conviction should be reversed due to prosecutorial misconduct during closing argument. Generally, the defendant must object to the prosecutor's remarks to preserve the matter for appeal. However, if the remarks implicate the defendant's right to a fair trial or to due process, the issue of prosecutorial misconduct will be addressed without a contemporaneous objection. State v. Doyle, 272 Kan. 1157, 1164, 38 P.3d 650 (2002).
"A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court deci