State v. NunezAnnotate this Case
Defendant was convicted of rape in violation of Kan. Stat. Ann. 21-3502(a)(1)(A), which defines rape as sexual intercourse with a person who does not consent to the sexual intercourse under circumstances when “the victim is overcome by force or fear.” On appeal, Defendant argued that the phrase “force or fear” establishes alternative means of committing rape, and because the State failed to present evidence establishing the victim was overcome by fear, there was insufficient evidence to support the rape conviction. The court of appeals affirmed, concluding that the issue of alternative means did not need to be decided definitively in this case because the evidence established that the victim was overcome by both force and fear. The Supreme Court affirmed, holding (1) including the language “force or fear” in the jury instruction on rape did not make this an alternative means case because the phrase “force or fear” merely presents options within a means; and (2) sufficient evidence was presented at trial that the victim was overcome by force when Defendant had nonconsensual sex with him.