State v. Nunez

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,377

STATE OF KANSAS,
Appellee,

v.

ARMANDO NUNEZ,
Appellant.


SYLLABUS BY THE COURT


The phrase "force or fear" in Kansas' rape statute, K.S.A. 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. 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. Language contained in
State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194,
224 P.3d 1159 (2010), suggesting otherwise is specifically disapproved.

Review of the judgment of the Court of Appeals in an unpublished decision filed June 3, 2011.
Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed January 24, 2014.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

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Deborah L. Hughes, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger,
of the same office, was on the brief for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, and Lora D. Ingels and Lois K.
Malin, assistant county attorneys, and John P. Wheeler, Jr., county attorney, and Steve Six, former
attorney general, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: Armando Nunez was convicted of rape in violation of K.S.A. 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"). On appeal before the Court of Appeals, he argued that the phrase "force or fear"
in K.S.A. 21-3502(a)(1)(A) establishes alternative means of committing rape, requiring
that the State present sufficient evidence of both force and fear. Nunez conceded on
appeal that the State presented sufficient evidence of force, but he argued that the State
failed to present evidence establishing that the victim was overcome by fear.
Accordingly, he argued that there was insufficient evidence to support the rape
conviction.

The Court of Appeals reviewed this court's decisions in State v. Timley, 255 Kan.
286, 875 P.2d 242 (1994), and State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and
determined that based on the alternative means analysis applied in those cases concerning
the phrase force or fear, it was unclear whether the phrase should be construed as
establishing a single means or alternative means of committing rape. The Court of
Appeals ultimately determined, however, that this issue need not be decided definitively
in this case because it viewed the evidence presented at Nunez' trial as establishing that
the victim was overcome by both force and fear. Therefore, the court affirmed Nunez'
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rape conviction. State v. Nunez, No. 102,377, 2011 WL 2191686 (Kan. App. 2012)
(unpublished opinion).

We granted Nunez' petition for review to address the apparent confusion caused by
Timley and Wright. Based on our decision in State v. Brown, 295 Kan. 181, 194, 200, 284
P.3d 977 (2012), and the cases following Brown, we conclude that the phrase force or
fear merely presents options within a means and, accordingly, including this language in
the jury instruction on rape did not make this an alternative means case triggering
concerns of jury unanimity. Because sufficient evidence of force was presented at Nunez'
trial, we affirm his rape conviction. See, State v. Brooks, No. 102,452, this day decided.

FACTS

Nunez married M.N. when she was 14 years old. They were married for
approximately 8 years, during which time they had two children. They eventually
divorced and lived apart for 2 months but then resumed living together and had a third
child, a daughter. Despite living together and having a third child, the couple remained
divorced.

On the morning of January 21, 2007, M.N. was at home sleeping in her bedroom.
Her daughter was sleeping in a crib next to the bed. M.N. was awakened by the sound of
Nunez coming home that morning and playing loud music. Eventually, M.N. went back
to sleep.

Later, M.N. was again awakened when Nunez came into her bedroom and told her
he wanted to have sex. M.N. told him no. Nunez proceeded to take off his clothes and
then started to forcibly remove M.N.'s clothes while she fought with him. Eventually,
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Nunez began having sexual intercourse with M.N. M.N. tried pushing Nunez away, but
she was unable to do so.

While M.N. was struggling with Nunez, their daughter awoke in her crib. M.N.
told Nunez that their daughter was awake and watching them. Nunez stopped and M.N.
got up from the bed, gathered her clothes, and ran into the bathroom. Nunez followed
M.N. into the bathroom and forced her to the floor. According to M.N., as she struggled
against him, Nunez lifted her legs up and penetrated her anus with his penis.

While in the bathroom, M.N. cried out loudly, conveying, according to her, that
she was "very scared." At this point, Nunez let go of M.N., and M.N. then got up from
the floor and eventually called the police. They arrived 10 minutes later. Through a friend
who acted as her interpreter, M.N. told the police that Nunez had vaginal and anal
intercourse with her against her will in the master bedroom and bathroom.

Nunez was taken into custody and transported to the law enforcement center. With
the assistance of an interpreter, a detective with the Garden City Police Department
conducted an interview of Nunez. During the interview, Nunez said that M.N. was angry
at him because he wanted to have "relations" with her and she did not want to. Notably,
he admitted to taking her clothes off and forcing her to have sexual relations with him.
He stated the incident started in the bedroom and finished in the bathroom. When asked
whether he inserted his penis into M.N.'s anus, Nunez said he might have.

Nunez' case proceeded to a jury trial on one count of rape in violation of K.S.A.
21-3502(a)(1)(A)—based on his alleged actions in the bedroom—and one count of
aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(3)(A)—based on his
alleged actions in the bathroom. The jury found Nunez guilty of rape but acquitted him of
aggravated criminal sodomy. The district court sentenced Nunez to 176 months'
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imprisonment. After the Court of Appeals affirmed Nunez' conviction, he filed a timely
petition for review which this court granted.

ANALYSIS

In Timley, this court, quoting State v. Kitchen, 100 Wash. 2d 403, 410, 756 P.2d
105 (1988), stated:

"'In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to guilt for the single crime charged.
Unanimity is not required, however, as to the means by which the crime was committed
so long as substantial evidence supports each alternative means.'" Timley, 255 Kan. at
289.

Subsequently, in Wright this court held that appellate courts should apply a super-
sufficiency of the evidence test in alternative means cases. Under this test, the State must
present sufficient evidence to permit a jury to find each means of committing the crime
beyond a reasonable doubt. Therefore, when the jury is instructed on alternative means of
committing a single crime and the State fails to present sufficient evidence to support
each means, reversal is required. 290 Kan. at 202-03. Conversely, if the jury was not
instructed on alternative means but merely received instructions on "options within a
means," then the lack of evidence on one of the options will not require reversal. See
Brown, 295 Kan. at 196-98; Wright, 290 Kan. at 203.

The above-noted rules shape Nunez' argument on appeal. He argues that the
phrase force or fear in K.S.A. 21-3502(a)(1)(A) establishes alternative means of
committing rape, requiring the State to present sufficient evidence of both force and fear
at trial. Like he did before the Court of Appeals, Nunez concedes that the State presented
sufficient evidence that M.N. was overcome by force. But he contends that the State
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failed to present sufficient evidence that she was overcome by fear. He concedes that
there was evidence presented at trial indicating that M.N. was scared when she was in the
bathroom. But he contends that this evidence cannot be considered in affirming his rape
conviction because the bathroom incident took place after the alleged rape—occurring in
the bedroom—was complete.

In order to address Nunez' argument, we must first determine whether the phrase
force or fear establishes alternative means of committing rape, resulting in the application
of the super-sufficiency of the evidence test. After addressing this issue, we can then
determine whether the State presented sufficient evidence to convict Nunez of rape as
defined in K.S.A. 21-3502(a)(1)(A).

Recently, we held in Brown that appellate courts must first determine whether the
jury was presented with alternative means on a charge before it applies the super-
sufficiency requirement. 295 Kan. at 194. "Issues of statutory interpretation and
construction, including issues of whether a statute creates alternative means of
committing a crime, raise questions of law reviewable de novo on appeal." State v. Britt,
295 Kan. 1018, Syl. ¶ 1, 287 P.3d 905 (2012).

In Brown, this court stated:

"In examining legislative intent, a court must determine for each statute what the
legislature's use of a disjunctive 'or' is intended to accomplish. Is it to list alternative
distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in
some statutes, a causation element? Or is it to merely describe a material element or a
factual circumstance that would prove the crime? The listing of alternative distinct,
material elements, when incorporated into an elements instruction, creates an alternative
means issue demanding super-sufficiency of the evidence. But merely describing a
material element or a factual circumstance that would prove the crime does not create
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alternative means, even if the description is included in a jury instruction." 295 Kan. at
194.

In Brown, this court discussed some guideposts for determining whether the
legislature intended to create alternative means as opposed to merely options within a
means. The Brown court noted that in conducting this analysis and determining the
legislature's intent, ordinary rules of statutory construction apply. 295 Kan. at 193-94. In
addition, "[t]ypically . . . a legislature will signal its intent to state alternative means
through structure, separating alternatives into distinct subsections of the same statute."
295 Kan. at 196 (citing State v. Smith, 159 Wash. 2d 778, 784-86, 154 P.3d 873 [2007]).
However, the Brown court went on to say:

"Regardless of such subsection design, . . . a legislature may list additional
alternatives or options within one alternative means of committing the crime. But these
options within an alternative do not constitute further alternative means themselves if
they do not state additional and distinct ways of committing the crime, that is, if they do
not require proof of at least one additional and distinct material element. Rather they are
only options within a means if . . . their role is merely to describe a material element or to
describe the factual circumstances in which a material element may be proven. [Citation
omitted.]" 295 Kan. at 196-97.

With these guidelines in mind, it is helpful to look at the structure of K.S.A. 21-
3502 before examining the specific language of subparagraph (a)(1)(A). K.S.A. 21-
3502(a) describes the various acts that constitute rape. The statute states:

"(a) Rape is: (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;
(B) when the victim is unconscious or physically powerless; or
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(C) when the victim is incapable of giving consent because of mental deficiency
or disease, or when the victim is incapable of giving consent because of the effect of any
alcoholic liquor, narcotic, drug or other substance, which condition was known by the
offender or was reasonably apparent to the offender;
"(2) sexual intercourse with a child who is under 14 years of age;
"(3) sexual intercourse with a victim when the victim's consent was obtained
through a knowing misrepresentation made by the offender that the sexual intercourse
was a medically or therapeutically necessary procedure; or
"(4) sexual intercourse with a victim when the victim's consent was obtained
through a knowing misrepresentation made by the offender that the sexual intercourse
was a legally required procedure within the scope of the offender's authority." (Emphasis
added.)

K.S.A. 21-3502(a) is divided into four subsections, each subsection addressing a
scenario that would constitute rape. Subsection (a)(1) proscribes the general act of having
"sexual intercourse with a person who does not consent to the sexual intercourse" under
circumstances which are divided into three subparagraphs. The language at issue in this
case, "[w]hen the victim is overcome by force or fear," is contained within the first
subparagraph and is separated from the other circumstances constituting rape under
subsection (a)(1) (i.e., "when the victim is unconscious or physically powerless," or
"when the victim is incapable of giving consent [for other various reasons]"). See K.S.A.
21-3502(a)(1)(A), (B), (C). The structure of subsection (a)(1) suggests that the legislature
intended for subparagraphs (A), (B), and (C) to constitute three alternative means of
committing rape when the victim does not consent to having sexual intercourse.

As mentioned above, this court explained in Brown that options listed within a
single subsection of a statute do not state alternative means if the language merely defines
other statutory language in a way that elaborates on or describes a material element or
describes factual circumstances that prove the crime. 295 Kan. at 196-97. In Brown, the
statutory language defining aggravated indecent liberties with a child stated in one
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subsection that the crime was committed by "any lewd fondling or touching of either a
child who is under 14 years of age or the offender 'done or submitted to with the intent to
arouse or satisfy the sexual desires of either the child or the offender, or both.'" 295 Kan.
at 201. Brown argued that the language "either the child or the offender, or both" created
alternative means of committing the crime, but this court found that the language created
options within a means instead. 295 Kan. at 201-02. The court concluded that the
language was "merely descriptive of the types of factual circumstances that may prove
the distinct, material element of intent to arouse or satisfy sexual desires, that is, the mens
rea required for commission of the offense." 295 Kan. at 201; see State v. Cheffen, 297
Kan. 689, 699, 702, 303 P.3d 1261 (2013) (concluding that the phrase "in the commission
of, attempt to commit, or flight from an inherently dangerous felony" did not create
alternative means of committing felony murder); State v. Ultreras, 296 Kan. 828, 850,
295 P.3d 1020 (2013) (concluding that the phrases "great bodily harm to another person
or disfigurement of another person" and "bodily harm to another person with a deadly
weapon or in any manner whereby great bodily harm, disfigurement or death can be
inflicted" did not create alternative means of committing aggravated battery); State v.
Haberlein, 296 Kan. 195, 208-09, 290 P.3d 640 (2012) (concluding that the phrases
"force, threat, or deception" and "to facilitate flight or the commission of any crime" did
not create alternative means of committing kidnapping or aggravated kidnapping); Britt,
295 Kan. at 1026-27 (concluding that the phrase "any penetration of the female sex organ
by a finger, the male sex organ or any object" contained within definition of sexual
intercourse did not create alternative means of committing rape); State v. Burns, 295 Kan.
951, 962-64, 287 P.3d 261 (2012) (concluding that the phrase "oral contact or oral
penetration of the female genitalia or oral contact of the male genitalia" contained within
definition of sodomy did not create alternative means of committing aggravated criminal
sodomy), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d 641
(2013); State v. Rojas-Marceleno, 295 Kan. 525, 546-48, 285 P.3d 361 (2012)
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(concluding that the phrase "to commit or submit to an unlawful sexual act" did not
create alternative means of committing aggravated indecent solicitation of a child).

Similarly, the statutory language "[w]hen a victim is overcome by force or fear"
does not present two alternative means of committing rape. Rather, the phrase force or
fear, like the language at issue in Brown, 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 K.S.A. 21-
3502(a)(1)(A) is "to overcome," and the phrase force or fear merely describes this
material element. See Brown, 295 Kan. at 196-97. In accordance with our holding in
State v. Brooks, No. 102,452, this day decided, we conclude that force or fear are not
alternative means but options within a means, and the inclusion of this language in the
jury instructions did not make this an alternative means case triggering concerns of jury
unanimity (i.e., evidence of either force or fear is sufficient to sustain Nunez' rape
conviction under K.S.A. 21-3502[a][1][A]).

It should be noted that in Timley, the defendant argued that the trial court erred in
instructing the jury that it could find him guilty of rape based on the victims being
overcome by either force or fear. The defendant argued that instructing the jury in this
manner deprived him of a unanimous verdict because some jurors may have found that
the victims were overcome by force while other jurors may have found that the victims
were overcome by fear. The defendant, however, mischaracterized this issue as a
"multiple acts" issue instead of an alternative means issue. Despite this error, the Timley
court applied an alternative means analysis to the defendant's argument and rejected the
argument. The court stated:

"In his appellate brief, Timley's counsel readily points out that there was
evidence from which the jury could determine that each sexual act was the result either of
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force, based on Timley's choking the victims, or of fear, based on the threats Timley
made to the victims. There was sufficient evidence, viewed in the light most favorable to
the prosecution, that a rational factfinder could have found Timley guilty beyond a
reasonable doubt of the crimes of rape and aggravated criminal sodomy either by the
means of force or by the means of fear. There was no error in including both alternative
means in one instruction to the jury." (Emphasis added.) Timley, 255 Kan. at 290.

Subsequently, this court in Wright analyzed the Timley decision and reiterated its
conclusion that force and fear are separate alternative means of committing rape,
requiring sufficient evidence of both means to uphold a conviction:

"The [Timley] court then held that there was sufficient evidence to convict
Timley of rape and aggravated criminal sodomy either by force or by fear; thus, '[t]here
was no error in including both alternative means in one instruction to the jury.' [Citation
omitted.] The indispensable component in the court's holding was 'super-sufficiency' of
evidence, i.e., proof adequate to persuade a rational factfinder of Timley's guilt on rape
by fear and rape by force. [Citation omitted.] If evidence had been lacking on either
means alleged, Timley's rape conviction would have been reversed." (Emphasis added.)
Wright, 290 Kan. at 203.

This passage from Wright appears to reaffirm Timley's construction of the phrase
force or fear as establishing alternative means of committing rape. But later in the
decision, when the Wright court applied Timley to the facts of the case, the court clearly
treated the phrase force or fear as establishing a single means of committing rape. The
defendant in Wright argued that the jury was instructed on alternative means when it was
instructed that the defendant could be convicted of rape if the act of sexual intercourse
was committed without the consent of the victim under circumstances where (a) the
victim was overcome by force or fear, or (b) the victim was unconscious or physically
powerless. The defendant conceded there was sufficient evidence that the victim was
unconscious or physically powerless. Her only argument on appeal was that there was
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insufficient evidence to establish that the victim was overcome by force or fear. In
addressing the defendant's argument, this court stated:

"The evidence in this case was sufficient to find Wright guilty beyond a
reasonable doubt of committing rape by force or fear. J.L. testified that she woke to the
realization that Wright was digitally penetrating her vagina and was paralyzed with fear.
Under [State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006)], it does not matter that the
initial penetration by Wright may not have been temporally coincidental with J.L.'s fear;
it is enough that the penetration and fear were eventually contemporaneous. There is no
error under the Timley alternative means rule here, because the evidence of each means of
committing rape—by force or fear or by unconsciousness—was sufficient to uphold a
guilty verdict on the rape charge." (Emphasis added.) Wright, 290 Kan. at 206-07.

Despite recognizing Timley's construction of the phrase "force or fear" as
establishing alternative means of committing rape, the final paragraph of the alternative
means analysis in Wright suggests that the Wright court actually considered force or fear
as a single means of committing rape because the only evidence the court cited to support
the defendant's rape conviction was evidence showing that the victim was overcome by
fear. The Wright court neither mentioned nor analyzed the lack of evidence suggesting
that the victim was overcome by force. Admittedly, the defendant in Wright did not
specifically raise the argument that force or fear are alternative means of committing
rape, but if the phrase truly establishes alternative means—as the Wright court recognized
was Timley's holding—then the rape conviction in Wright should have been reversed due
to insufficient evidence showing that the victim was overcome by force. However,
because the rape conviction was found to be supported by sufficient evidence, Wright can
be read as implicitly construing force or fear as a single means of committing rape.

Regardless of whether Wright should be read as an acceptance or ultimate
rejection of Timley's construction of the phrase force or fear, one thing is clear: Timley
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reached the conclusion that the phrase establishes alternative means of committing rape
without conducting any analysis of the statutory language. This implies that the Timley
court simply assumed that the appearance of an "or" in statutory language automatically
creates alternative means for committing a crime. As noted above, the Brown decision
did away with this assumption and established a framework for determining for each
statute what the legislature's use of the disjunctive "or" is intended to accomplish—
establish alternative means or options within a means. Based on Brown and its progeny,
we conclude that sexual intercourse with a person who does not consent under
circumstances when the victim is overcome by force or fear is a single, unified means of
committing rape. Accordingly, sufficient evidence supports a defendant's conviction for
rape under K.S.A. 21-3502(a)(1)(A) 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. Language contained in Timley and Wright suggesting otherwise is
specifically disapproved.

As mentioned above, Nunez concedes on appeal that the State presented sufficient
evidence that M.N. was overcome by force when he had nonconsensual sex with her in
the bedroom. Because this evidence is sufficient to show that Nunez raped M.N. in
violation of K.S.A. 21-3502(a)(1)(A), we affirm the Court of Appeals' decision affirming
Nunez' conviction for rape.

Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.