Failure to argue voluntary act requirement in statutory rape case was IAC

Richard Ney and David L. Miller won in State v. Dinkel, No. 113,705 (Kan. September 24, 2021), obtaining a new trial in a Saline County statutory rape prosecution. The Kansas Supreme Court had previously considered this case (blogged about here) and held that a voluntary act was an element of a statutory rape prosecution. In the previous decision, the KSC remanded to determine whether Ms. Dinkel's attorney was ineffective for failing to make any argument regarding the actus reus requirement. The district court held that Ms. Dinkel's attorney was not ineffective. A majority of the KSC disagreed:

It is true [defense counsel] presented Dinkel's version of the events to the jury. But nothing in his arguments or the instructions told the jury how it could use these defenses. The jury was instructed to apply the law that the court gave it. That law provided that Dinkel was guilty of rape if sexual intercourse occurred at certain times, Dinkel knowingly engaged in the act, and K.H. was under 14 years old. It instructed the jury that Dinkel acted knowingly if she was aware of the nature of her conduct. The State proved that sexual intercourse occurred at least once during the described time period, that Dinkel was aware of what was happening, and that K.H. was under 14 years old. Even if the jury believed Dinkel's defenses, the instructions offered no avenue for the jury to find she was not guilty. Thus, regardless of how aggressively or completely [defense counsel] presented Dinkel's claims, without any argument or instruction on the State's burden to prove that Dinkel's acts had to be voluntary, her claims were legally irrelevant.

. . . .

[Defense counsel's] assertions did not provide the legal link between Dinkel's claims and possible acquittal that Dinkel asserted. In fact, we question how [defense counsel's] argument did anything but inject confusion into the jury's decision-making. When reading the instructions, the trial judge told the jury that its "verdict must be founded entirely upon the evidence admitted and the law as given in these instructions." As we have noted, nothing in those instructions allowed the jury to find Dinkel not guilty if it believed her version of events. So a statement telling the jury that it did not have to find Dinkel guilty because that "didn't make sense" was bound to muddy up the deliberative waters.

It appears [defense counsel] did not know the voluntary act requirement existed or, if he did, he overlooked it. But this does not excuse his missteps. In State v. Davis, this court held that counsel's performance had been deficient when "he was unaware of the proper legal standard for a defense of mental disease or defect" and, consequently, "did not adequately prepare for trial." 277 Kan. 309, 327, 85 P.3d 1164 (2004). Similarly, here, [defense counsel] neglected the voluntary act requirement and, consequently, forged ahead with a defense that held no legal significance.

The KSC went on to hold that the deficient performance prejudiced Ms. Dinkel's defense:

The failure to give the jury the tools it needed to apply Dinkel's defense against the State's case made it impossible to achieve the fundamental fairness we expect in a criminal trial. The instructions told the jury the State had to prove Dinkel knowingly engaged—meaning she was aware of her conduct—in sexual intercourse with K.H. between November and March while K.H. was less than 14 years old. Dinkel admitted to at least one instance of sexual intercourse with K.H. during this time. She also testified that K.H. forcibly raped her during their first sexual encounter while she just "lied there" and presented evidence to support this claim. But no instruction told the jury that Dinkel was not guilty if she was forcibly raped. Because we generally presume juries follow instructions, State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011), the absence of an instruction permitting the jury to apply Dinkel's defense was prejudicial. Without it, Dinkel's testimony secured her conviction for at least one of the charges. 

As a result, the KSC reversed and remanded for a new trial.

[Update: according to this Hays Post article, on remand, Ms. Dinkel entered into a no contest plea to contributing to a child's misconduct, with a maximum sentence of 23 months in prison].