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State v. Flynn

329 P.3d 429 (2014)

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State v. Flynn

Kansas Supreme Court

329 P.3d 429 (2014)

Facts

The state (plaintiff) charged Ira Flynn (defendant) with kidnapping and raping A.S., who said she did not consent. Flynn said A.S. initially consented to intercourse on her car’s hood but objected to sex on the ground. Flynn claimed he slowed when A.S. objected but did not stop immediately because he was unsure that she was serious. Flynn claimed he stopped 30 seconds to two minutes later when A.S. said, “Stop, I’m serious.” Afterward, Flynn left A.S. three voice messages saying that she could “call the cops or do what [she wanted] to do,” that he had “f***ed up,” and that he would “do a couple years, or you know, whatever,” then gave a slurred apology and goodbye. The trial court gave the standard jury instruction on the elements of rape but did not instruct the jury that rape may occur after a victim withdraws initial consent to intercourse (known in Kansas as a Bunyard instruction). The jury convicted Flynn on the charge of rape that occurred on the ground but acquitted as to all other charges. Fynn appealed, arguing failure to give the instruction deprived his rights to a fair trial and to present his defense. The appellate court reversed on the ground that the trial court should have given a Bunyard instruction. The state appealed, arguing that the courts should disapprove Bunyard altogether. The Kansas Supreme Court granted review.

Rule of Law

Issue

Holding and Reasoning (Moritz, J.)

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