State v. Brooks

The opinion of the court was delivered by

George James Brooks, III, was convicted of one count of rape under K.S.A. 2005 Supp. 21-3502(a)(l)(A) (defining rape as “[s]exual intercourse with a person who does not consent to the *673sexual intercourse” under circumstances “[w]hen tire victim is overcome by force or fear”), two counts of blackmail, and one count of breach of privacy. The Court of Appeals reversed Brooks’ convictions for rape and breach of privacy due to insufficient evidence. State v. Brooks, 46 Kan. App. 2d 601, 265 P.3d 1175 (2011).

We granted the State’s petition for review to determine whether the Court of Appeals erred when it determined that the evidence presented at Brooks’ trial failed to establish that the victim, J.P., was overcome by either force or fear. We also granted Brooks’ cross-petition for review to address whether the Court of Appeals erred when it construed the phrase force or fear in K.S.A. 2005 Supp. 21-3502(a)(l)(A) as establishing a single means of committing rape.

Based on our recent decision in State v. Brown, 295 Kan. 181, 194, 200, 284 P.3d 977 (2012), we agree with the Court of Appeals’ conclusion that the phrase force or fear establishes a single means of committing rape. But we disagree with die Court of Appeal’s analysis, which was based on an erroneous construction of the term “fear,” that no evidence was presented at trial showing that J.P. was overcome by fear. Accordingly, we reverse the Court of Appeals’ decision reversing Brooks’ rape conviction.

Facts

Because the parties do not dispute the accuracy of the statement of facts contained in the Court of Appeals’ opinion, we quote extensively from that section of the opinion.

“Brooks and J.P. married in 1996. They separated in May 2005 and were divorced 10 months later. On May 7, 2006, a Sunday, Brooks accessed J.P.’s e-mail account and forwarded to his own e-mail account copies of communications she had with a married male coworker in August and October 2005. The e-mails indicated J.P. and her coworker had been carrying on an extramarital affair.

“Later on May 7, Brooks telephoned J.P. an'd 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.

“Brooks arrived at the house about 8:30 p.m. with a folder containing copies of tire 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. J.P. asked Brooks to leave. But he *674told J.P. that he would carry out his threat to publicize her affair if she didn’t have sex with him. 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. He said that wasn’t a problem. Brooks then directed J.P. to take off her underwear. When she hesitated, Brooks—in her words—‘started getting agitated.’ J.P. complied. Brooks took off his pants and put on a condom. J.P. sat in a chair, and Brooks had intercourse with her. Brooks had his hands on her legs during the .act. J.P. said she had her hands over her face and her eyes closed so she would not have to look at Brooks.

“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.

“During her trial testimony, J.P. did not elaborate on Brooks’ agitation. And she did not indicate that she thought Brooks would have physically harmed her had she refused to have sex. But she did believe he would disclose the affair. When Brooks confronted J.P., she and her coworker remained romantically involved. J.P. told the jury she did not want the relationship publicized because they worked closely and many of their colleagues knew her coworker’s wife. J.P. said disclosure of die affair would have tainted the workplace and created something that ‘was not a good situation.’ But J.P. testified that she had no reason to think she would have been fired or would have suffered any adverse change in die terms or conditions of her. employment were die affair to come to light. J.P. told the jury she and Brooks had sex on May 7 only because he had die e-mails and threatened to expose her workplace affair if she did not submit.

“On Monday, May 8, J.P. told bodi her lawyer and her counselor what Brooks had done to her the evening before. They urged her to contact the police. She did. A detective with the Topeka Police Department took a statement from J.P. and gave her a recorder to tape any calls from Brooks. She taped a message from her answering machine and several calls witii Brooks. In those communications, Brooks asked for money in addition to another sexual encounter. J.P. agreed to meet with Brooks on May 12. When Brooks arrived at her home, police officers arrested him.

“Brooks denied having sexual relations with J.P. earlier diat week. He claimed she had offered to have sex with him to secure the return of the e-mails. Brooks testified he agreed, but they never actually had sex that evening. Brooks also testified that J.P. had given him her e-mail address and password. At trial, J.P. denied doing so and said Brooks had no authorization to access her e-mails.

“The State charged Brooks with one count of rape junder K.S.A. 2005 Supp. 21-3502(a)(l)(A)], one count of attempted rape, two counts of blackmail, and one count of breach of privacy. 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. 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 *675criminal 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.” Brooks, 46 Kan. App. 2d at 603-05.

On appeal before the Court of Appeals, Brooks argued that the State presented insufficient evidence to convict him of rape and breach of privacy. With regard to the rape charge, Brooks argued that he was charged with alternative means of committing rape based on the language of K.S.A. 2005 Supp. 21-3502(a)(l)(A), defining rape as sexual intercourse with a person who does not consent to the sexual intercourse, under circumstances “[wjhen the victim is overcome by force or fear.” (Emphasis added.) Based on the super-sufficiency requirement for evidence in an alternative means case, see State v. Wright, 290 Kan. 194, 203,-06, 224 P.3d 1159 (2010), Brooks argued that the State failed to present sufficient evidence that J.P. was overcome by either force or fear when she submitted to having sex with him. Accordingly, he argued that his conviction for rape had to be reversed due to insufficient evidence.

The Court of Appeals addressed Brooks’ argument by first determining whether the phrase force or fear established alternative means of committing rape. The court noted that the issue was important because if force or fear established a single means, “then the evidence need only support one or the other to uphold a verdict of guilty.” Brooks, 46 Kan. App. 2d at 608. Conversely, if force or fear established alternative means, then the evidence presented at trial had to be sufficient to support each means. 46 Kan. App. 2d at 608-09.

Based on what it perceived as this court’s construction of the phrase in Wright, the Court of Appeals concluded that force or fear should be construed as establishing a single means of committing rape. 46 Kan. App. 2d at 609-10. The court then reasoned that

“there must be some commonality or relationship between the type of force that suffices to violate the rape statute and the fear that does. In other words, the victim must be fearful of tire sort of force contemplated in the statute. Absent that connection, force and fear would amount to alternative means of committing *676rape. They would be sufficiently distinct to be separate ways of overcoming a victim.” 46 Kan. App. 2d at 612.

With regard to “force,” the court interpreted the term as requiring a victim to be overcome by the use of actual or physical force against the victim, another person, or property. Based on this construction of the term “force” and the belief that there must be some commonality or relationship between the terms force and fear, the court construed “fear” to mean fear resulting from the use or threat to use force—as that term was defined by the court. 46 Kan. App. 2d at 612-14.

With these definitions in place, the Court of Appeals proceeded to determine whether sufficient evidence was presented at trial to show that J.P. submitted to having sexual intercourse with Brooks based on either force or fear. Regarding force, the court noted that “the record is bereft of any evidence Brooks used force to compel J.P.’s compliance with his demand. To the contrary, he coerced her solely with threats to expose her workplace affair. Brooks did not touch J.P. at all until sexual intercourse occurred.” 46 Kan. App. 2d at 611. With regard to fear, the court found that Brooks’ threat to publicize J.P.’s affair “did not involve any present or future application of force and, in turn, the response it provoked in J.P., however disquieting or upsetting, did not constitute fear of the sort that supports a rape charge under the Kansas law.” 46 Kan. App. 2d at 614. The court concluded that the evidence presented at trial failed to satisfy all the elements of rape as defined in K.S.A. 2005 Supp. 21-3502(a)(l)(A) and, thus, reversed Brooks’ rape conviction. 46 Kan. App. 2d at 614-15.

Judge Stephen Hill dissented, arguing that the term force should be broadly construed to include not only the use of physical force, but also the use of “psychological or emotional force to overcome” a victim. Brooks, 46 Kan. App. 2d at 628. Furthermore, he argued that based on State v. Borthwick, 255 Kan. 899, 913-14, 880 P.2d 1261 (1994), evidence that a victim was overcome by fear resulting from actions other than the use or threat to use physical force is sufficient to sustain a rape conviction under K.S.A. 2005 Supp. 21-3502(a)(1)(A). Judge Hill believed the evidence presented at trial *677was sufficient to affirm Brooks’ rape conviction. Brooks, 46 Kan. App. 2d at 630.

Analysis

In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), 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.’ ”

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. Wright, 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 the parties’ arguments on appeal. In the State’s petition for review, the State agrees with the Court of Appeals’ analysis that the phrase force or fear in K.S.A. 2005 Supp. 21-3502(a)(l)(A) establishes a single means of committing rape. The State contends, however, that the Court of Appeals erred when it reversed Brooks’ rape conviction based on the lack of evidence showing that J.P. was overcome by fear resulting from the use or threat to use force. The State argues that die Court of Appeals erred in narrowly construing the term fear, resulting in die court’s failure to consider evidence that J.P. was overcome by fear of Brooks publicly exposing her affair with a coworker. The State contends that if this evidence is considered, then sufficient evidence was presented at Brooks’ trial to convict him of rape in violation of K.S.A. 2005 Supp. 21-3502(a)(l)(A).

*678In contrast, Brooks argues in his cross-petition for review that based on this court’s decision in Timley, the phrase force or fear creates alternative means of committing rape. He argues that regardless of whether there was sufficient evidence of fear presented at trial, the State failed to present any evidence that J.P. was overcome by force and, thus, his rape conviction should be reversed due to a failure to satisfy the super-sufficiency of the evidence test for alternative means cases.

In order to resolve the issues raised by the parties, we will first address whether the phrase force or fear creates alternative means of committing rape, resulting in the application of the super-sufficiency of the evidence test. Our determination of the alternative means issue will shape the analysis of the second issue: whether the State presented sufficient evidence to convict Brooks of rape as defined in K.S.A. 2005 Supp. 21-3502(a)(l)(A).

A. Does the Phrase “Force or Fear” Create Alternative Means of Committing Rape?

Recently, in Brown, this court held that appellate courts must first determine whether the jury was presented with alternative means on a charge before applying 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, tire 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 alternative means, even if the description is included in a juiy instruction.” 295 Kan. at 194.

*679We discussed some guideposts in Brown for determining whether the legislature intended to create alternative means as opposed to merely options within a means. We noted that in conducting this analysis and determining the legislature’s intent, or-dinaiy rules of statutory construction apply. Brown, 295 Kan. at 193-94. In addition, “[tjypically... 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. 2005 Supp. 21-3502 before examining the specific language of subparagraphs (a)(1)(A). K.S.A. 2005 Supp. 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

(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 die 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 tire offender’s authority.” (Emphasis added.)

*680K.S.A. 2005 Supp. 21-3502(a) is divided into four subsections, each subsection addressing a scenario that would constitute rape. Subsection (a)(1) proscribes tire general act of having “sexual intercourse with a person who does not consent to the sexual intercourse” under circumstances which are divided into three subpar-agraphs. The language at issue in this case, “[w]hen the victim is overcome by force or fear,” is contained within the first subpara-graph 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 various reasons]”). See K.S.A. 2005 Supp. 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 tire 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 statutoiy language defining aggravated indecent liberties with a child stated in one 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 tibe 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 mur*681der); State v. Ultreras, 296 Kan. 828, 850-54, 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 die phrase “any penetration of the female sex organ by a finger, the male sex organ or any object” contained witiiin 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) (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 non-consensual sexual intercourse with a victim who is “overcome.” In other words, the actus reus of K.S.A. 2005 Supp. 21-3502(a)(l)(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. Nunez, 298 Kan. 661, 316 P.3d 717 (2014), 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 *682triggering concerns of jury unanimity (i.e., evidence of either force or fear is sufficient to sustain Brooks’ rape conviction under K.S.A. 2005 Supp. 21-3502[a][l][A]).

Brooks counters this conclusion by arguing that this court’s decision in Timley established that the phrase force or fear does create alternative means of committing rape. 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. In making this argument, however, the defendant mis-characterized the issue as a “multiple acts” issue instead of an alternative means issue. Despite this error, this court applied an alternative means analysis and ultimately rejected the defendant’s argument. The Timley 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 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 soclomy 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 fact-finder 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.

*683This 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 diere was 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 al*684ternative 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 reached the conclusion that the phrase establishes alternative means of committing rape without conducting any analysis of the statutoiy language. This implies that the Timley court simply assumed that the appearance of an “or” in statutoiy 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. 2005 Supp. 21-3502(a)(l)(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.

B. Did the State Present Sufficient Evidence that Brooks Committed Rape in Violation of K.S.A. 2005 Supp. 21-3502(a)(1)(A)?

The State argues that it presented sufficient evidence to show that J.P. was, at tire veiy least, overcome by fear as contemplated in K.S.A. 2005 Supp. 21-3502(a)(l)(A). As mentioned above, the Court of Appeals construed the term “fear” to mean fear resulting from the use or threat to use force against the victim, another *685person, or property. Construing the term fear in this manner led the court to conclude that J.P.’s fear—derived from Brooks’ threat to publically reveal her affair with a married coworker—was insufficient to show that she was overcome by fear under K.S.A. 2005 Supp. 21-3502(a)(l)(A). The State contends that the Court of Appeals’ construction of the term fear is contradicted by this court’s opinion in State v. Borthwick, 255 Kan. 899, 880 P.2d 1261 (1994), a case which explained what type of evidence is sufficient to establish fear in a rape case. The State contends that based on Borth-wick, J.P.’s fear was sufficient to satisfy the statutory element of the victim being overcome by fear.

The State’s argument necessarily involves construction of the term “fear” in K.S.A. 2005 Supp. 21-3502(a)(l)(A). Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory construction is that the intent of tire legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

Furthermore, in State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010), we stated:

"An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. [Citation omitted.] When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, tire court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does tire court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. [Citation omitted.]”

In construing the term “fear” in K.S.A. 2005 Supp. 21-3502, this court in Borthwick rejected the notion that the fear contemplated in the statute had to result from being threatened with a deadly weapon or even threatened with “force that would prevent resistance by a reasonable person.” Borthwick,