## Facts

- Josiah R. Bunyard was charged with three counts of rape involving three different acquaintances in incidents occurring in 1999, 2000, and 2001; the State joined all counts in one information.
- The trial court denied Bunyard’s motion to sever the counts for separate trials.
- The jury acquitted Bunyard on two counts but convicted him of raping E.N.
- The conviction involving E.N. arose from an encounter in Bunyard’s car after a party where the two began consensual kissing and undressing and Bunyard initiated intercourse.
- After penetration, E.N. stated, “I don’t want to do this,” and Bunyard replied, “Just a little bit longer,” continuing intercourse.
- E.N. again said she did not want to continue and testified she tried to get away, but Bunyard continued for a period of time.
- In closing argument, the prosecutor made statements the defense characterized as misstating the law on rape and shifting the jury’s attention from statutory elements to credibility.

## Issues

1. Whether the trial court abused its discretion under K.S.A. 22-3202(1) by joining three rape charges in one information and denying severance for trial.
2. Whether rape may be proved when initial penetration is consensual but the complainant clearly withdraws consent and the defendant continues intercourse.
3. Whether the prosecutor’s closing argument exceeded permissible latitude and, if so, whether it constituted plain error denying a fair trial.

## Decision

- The Kansas Supreme Court reversed the Court of Appeals, reversed the conviction, and remanded for a new trial.
- The court held that continued intercourse after clear withdrawal of consent can satisfy the “without consent” element of rape even if initial penetration was consensual.
- The court concluded that the prosecutor’s closing argument included misstatements of law about rape and improperly framed the case in a manner likely to mislead the jury.
- Applying Kansas’ two-step misconduct analysis, the court found the improper comments were outside permissible latitude and were not harmless, requiring reversal.
- The court did not base reversal solely on joinder/severance; the dispositive error was prosecutorial misconduct.

## Legal Principles

- Under K.S.A. 22-3202(1), offenses may be joined in one charging document if they are of the same or similar character, arise from the same act or transaction, are connected, or constitute parts of a common scheme or plan; the severance decision is reviewed for abuse of discretion.
- Consent for rape purposes is not limited to the moment of initial penetration; if consent is clearly withdrawn and intercourse continues, the act may be “without consent.”
- Prosecutorial misconduct is evaluated in two steps: (1) whether comments fall outside the wide latitude allowed in discussing the evidence; and (2) whether the comments amount to plain error that prejudiced the jury and denied a fair trial.
- In assessing prejudice from misconduct, Kansas considers whether the misconduct was gross and flagrant, whether it showed ill will, and whether the evidence was so direct and overwhelming that the misconduct likely had little effect; the State must still satisfy K.S.A. 60-261 and constitutional harmless-error standards.

## Conclusion

The Kansas Supreme Court ordered a new trial because the prosecutor’s closing argument misstated core legal standards in a credibility-driven rape case and the error was not harmless; the court also recognized that rape may occur when a complainant withdraws consent after penetration and the defendant continues intercourse.


State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (Kan. 2006)