298 Kan. 672, 317 P.3d 54 (2014)
George James Brooks, III, and J.P. married in 1996 and separated in May 2005, divorcing ten months later.1 On May 7, 2006, Brooks accessed J.P.’s e-mail account without authorization and forwarded copies of communications she had with a married male coworker in August and October 2005, which indicated an extramarital affair.2
Later on May 7, Brooks telephoned J.P. and told her he had copies of the emails. He read portions of them to her during the conversation. J.P. testified at trial that hearing Brooks read the e-mails gave her a very sick feeling. She said Brooks concluded the conversation by saying he would be coming over to her house for sex that evening.3 Around 8:30 p.m., Brooks arrived at J.P.’s house with a folder containing copies of the e-mails. He told J.P. that he would give copies to her employer and to her coworker’s wife if she did not do as he said.4
J.P. told Brooks in no uncertain terms that she did not want to have sex with him and it would be against her will. When she hesitated, Brooks—in her words—‘started getting agitated.’ J.P. complied.5 Brooks took off his pants and put on a condom. J.P. sat in a chair, and Brooks had intercourse with her. J.P. said she had her hands over her face and her eyes closed so she would not have to look at Brooks.67 When Brooks was done, J.P. asked for the e-mails. He told her that their encounter had been a ‘test’ and he would be back on Friday for more sex.8
On Monday, May 8, J.P. told both her lawyer and her counselor what Brooks had done to her the evening before. They urged her to contact the police. She did.9
A detective with the Topeka Police Department took a statement from J.P. and gave her a recorder to tape any calls from Brooks.10 In those communications, Brooks asked for money in addition to another sexual encounter.11 J.P. agreed to meet with Brooks on May 12. When Brooks arrived at her home, police officers arrested him.12
Brooks denied having sexual relations with J.P. earlier that week. He claimed she had offered to have sex with him to secure the return of the e-mails.13 The 4-day jury trial began on July 21, 2008. The jury found Brooks not guilty of attempted rape (stemming from his return to J.P.’s home on May 12) and convicted him on all of the remaining counts.14 On September 5, 2008, the trial court sentenced Brooks to 155 months in prison on the rape conviction, 12 months in prison on each blackmail conviction, and 12 months in the county jail on the breach of privacy conviction. Each of those terms of incarceration reflects a standard guideline sentence based on Brooks’ lack of any past criminal conduct. The trial court ordered Brooks to serve the blackmail sentences consecutive to each other and consecutive to the rape sentence. The jail time was made concurrent to the other sentences, yielding a controlling term of incarceration of 179 months.15 The Court of Appeals reversed Brooks’ convictions for rape and breach of privacy due to insufficient evidence.16
Whether the phrase "force or fear" in K.S.A. 2005 Supp. 21-3502(a)(1)(A) creates alternative means of committing rape?17
In examining legislative intent, a court must determine for each statute what the legislature’s use of a disjunctive 'or' is intended to accomplish. If it lists alternative distinct material elements of the crime, it creates alternative means requiring super-sufficiency of the evidence. If it merely describes a material element or factual circumstance that proves the crime, the language creates options within a means and evidence of either option suffices.18
No. The structure of K.S.A. 2005 Supp. 21-3502(a)(1) separates the non-consent circumstances into distinct subparagraphs (A), (B), and (C), establishing those as alternative means.19 The phrase 'force or fear' within subparagraph (A) merely describes the single material element of being 'overcome.'20 The jury received an instruction on this unified means, so evidence of fear alone sustains the rape conviction without triggering the super-sufficiency test.21
The phrase 'force or fear' does not create alternative means of committing rape.22
Whether the Court of Appeals erred when it determined that the evidence presented at trial failed to establish that the victim was overcome by force or fear?23
Fear within the rape statute is an inherently subjective concept that does not lend itself to definition as a matter of law.24 Whether a victim is overcome by fear is generally a question for the finder of fact.25 Appellate courts review sufficiency claims by viewing all evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.26
Yes. Brooks threatened to expose J.P.’s extramarital affair to her employer and the coworker’s wife.27 J.P. expressly told Brooks she did not want to have sex and that it would be against her will.28 She initially hesitated to remove her underwear until Brooks became agitated.29
J.P. sat in a chair, and Brooks had intercourse with her. J.P. said she had her hands over her face and her eyes closed so she would not have to look at Brooks. This evidence, viewed in the light most favorable to the State, permits a rational jury to conclude that J.P. was overcome by fear of disclosure and therefore did not consent.30
The Court of Appeals erred when it reversed Brooks’ rape conviction for insufficient evidence.31
Related opinions on this issue
Justice Johnson dissents from the sufficiency holding on two grounds.32 He concludes that the evidence established J.P. did consent to the sexual intercourse as a volitional choice to buy Brooks’ silence rather than suffer public disclosure of the affair.33 He warns that treating the overcome-by-fear element as purely subjective raises due-process concerns because a defendant may not know the degree of a partner’s phobia.34
He states that the majority’s approach risks trivializing the trauma of actual immediate fear.35
Justice Moritz agrees that force or fear does not create alternative means but dissents from the sufficiency holding because the majority conflates the material element of non-consent with the actus reus of being overcome by fear.36 She emphasizes that J.P. took multiple deliberate actions—calling her coworker, remaining upstairs for hours, and delaying any police contact until days later—that demonstrate she was never immobilized or paralyzed by fear.37
Simply stated, while these may be the actions of someone who succumbed to coercion or blackmail, they are not the actions of someone immobilized or paralyzed by fear.38 She further distinguishes Borthwick and Cantrell as requiring evidence of powerlessness or physical resistance absent here.39