dissenting: While I agree with the majority’s conclusion that the phrase “force or fear” in K.S.A. 2005 Supp. 21-3502(a)(1)(A) does not create alternative means of committing rape, I respectfully dissent from the majority’s holding that the State presented sufficient evidence to show that J.P. was overcome by fear. As explained below, the majority’s rationale is fundamentally flawed in that it conflates the element of lack of consent with the requirement that the victim be overcome by force or fear and essentially renders the latter requirement meaningless. In this case, while the State presented evidence that the victim did not consent, I would find the evidence fell far short of establishing that the victim was overcome by force or fear. Therefore, I would affirm the Court of Appeals’ decision reversing Brooks’ rape conviction.
Evidence of the material element does not equate to evidence of the actus reus.
In rejecting Brooks’ alternative means argument, the majority isolates the phrase “overcome by force or fear” and concludes the actus reus of K.S.A. 2005 Supp. 21-3502(a)(l)(A) is “overcome” and the phrase “force or fear” merely describes the material element. But then, in analyzing the sufficiency of the evidence, the majority devotes much attention to construing the material element of “fear,” yet fails to fully discuss or apply the actus reus or “guilty act,” which requires not simply that the victim was afraid, but that tire victim was overcome by that fear. Put another way, the evidence discussed by the majority adequately supports that *695J.P.’s fear led her to have nonconsensual intercourse but fads to support that she was overcome by fear. The statute, however, requires proof of both.
Significantly, at several points in its opinion, the majority uses die phrase “immobilized by fear” in place of “overcome by fear,” apparently accepting their meaning as synonymous. I do not object to this characterization as it is supported by our caselaw and comports with the meaning of the term “overcome.” See State v. Borthwick, 255 Kan. 899, 913, 880 P.2d 1261 (1994) (“What renders one person immobilized by fear may not frighten another at all.”); Webster’s Third New International Dictionary 1607 (1993) (defining “overcome” as “to get the better of’ and “to affect or influence so strongly as to make physically helpless or emotionally distraught”).
Nor do I disagree with the majority’s conclusion that J.P. “clearly feared Brooks would publicize her affair if she did not submit to having sex with him” or that “because of this fear, she ultimately submitted to having nonconsensual sex with Brooks.”
Where I diverge from the majority’s analysis is with its conclusion that J.P. not only “submitted to” that fear and had noncon-sensual intercourse, but that she did so because she was “overcome” by fear. To reach this holding, the majority makes assumptions not borne out by the evidence and ignores other evidence plainly establishing J.P. was never immobilized or paralyzed by her fear.
Namely, J.P. testified that earlier the day of the incident Brooks called her and read the incriminating e-mails to her and warned “everybody is going to pay.” After hearing Brooks’ threats, J.P. called the coworker with whom she was having the affair to tell him about the threats. J.P. testified that Brooks called again later and told her “this has to happen tonight, meaning that [Brooks] was going to come over for sex that night.” Officer Patrick McLaughlin, who later investigated the incident, confirmed that J.P. told him that during her phone call with Brooks, Brooks told J.P. that if she had sex with him, he would not distribute the e-mails.
Thus, the record shows that Brooks made multiple phone calls to J.P. warning her of his plan to come to her home that evening and the reasons for his visit, and J.P. clearly took his threat seriously *696as evidenced by her call to her coworker. Yet J.P. did not contact law enforcement.
Instead, as expected, Brooks arrived at J.P.’s home about 8:30 p.m. that evening, and the two had a brief conversation in which Brooks repeated his threat that if she did not have sex with him, he would give tire e-mails to her employer and to her coworker s wife.
J.P. did not immediately succumb to Brooks’ threats but instead went upstairs to her bedroom, ostensibly trying to put her daughter to sleep, but actually “avoid[ing] having to go back downstairs and face him, and . . . hop[ing] maybe that he would leave.” Brooks came upstairs a couple of times to see if the couple’s daughter was asleep, but otherwise he remained downstairs. J.P. remained upstairs until after midnight.
Again, despite knowing Brooks’ demands, J.P. still did not contact police. J.P. acknowledged that she had a phone in her bedroom and could have called police at any time after Brooks arrived, but she did not do so.
Nor did J.P. contact the police immediately after the incident. Instead, she discussed the incident with a counselor the following day, and the counselor advised her to call the police. But J.P. did not contact the police until she visited with her attorney 3 days after the incident while trying to “get this situation under control” and secure a protection from abuse order. Her attorney also advised she contact the police and made an appointment with a detective for her.
Simply stated, while these may be the actions of someone who succumbed to conspiracy or blackmail, they are not the actions of someone immobilized or 'paralyzed by fear. See K.S.A. 21-3428 (“Blackmail is . . . compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.”); see also State v. Daniels, 215 Kan. 164, 523 P.2d 368 (1974) (upholding blackmail conviction when defendant threatened to distribute compromising pictures of victim unless she paid him $100).
*697 The only case relied on hy the majority is distinguishable.
Moreover, the only case relied upon by the majority to support its conclusion that tire State presented sufficient evidence that j.P. was overcome by fear, Borthwick, is critically distinguishable. Specifically, the defendant there challenged the sufficiency of the evidence of fear, and the court focused on that issue in its opinion. A review of the factual circumstances of that case demonstrates this distinction.
Most notably, Borthwick’s victim was unable to walk without assistance or stand without support because of an extreme disability. After arriving at the victim’s home, the defendant sat on the floor behind her, rubbed her back, lifted her shirt and bra, and nibbled on her ear. Although the victim repeatedly asked Borth-wick to stop, he continued, laying her down on the floor, lifting her legs, removing her shorts and underwear, and digitally penetrating her. Borthwick’s victim testified she told the defendant to stop and that she tried to keep her legs together, “ ‘but they always c[a]me apart.’ ” 255 Kan. at 902. Finally, the physically disabled victim in Borthwick felt “powerless” to stop what was happening. 255 Kan. at 902 (discussing and summarizing victim’s testimony).
Relying on the victim’s testimony, the Borihwick court concluded the victim was overcome by her fear. See 255 Kan. at 913-14 (upholding rape conviction and stating that “when a victim testifies that she was overcome by fear, and her testimony is not ‘so incredible as to defy belief [citation omitted], there is sufficient evidence to present the ultimate determination to the factfinder”). In doing so the Borthwick court noted that “[w]hat renders one person immobilized by fear may not frighten another at all.” (Emphasis added.) 255 Kan. at 913.
While Borthwick is similar to this case in that neither victim consented to sexual intercourse and both victims “feared” their aggressors, Borthioick is critically distinguishable in several respects, all of which pertain to the evidence of the actus reus, which requires that the victim be immobilized by that fear.
First, the victim in Borthwick, unlike J.P. here, was not threatened before the defendant appeared at her home, nor does the *698evidence indicate she had several hours, as did J.P., to contemplate that threat and contact law enforcement to prevent it. .
Second, unlike the victim in Borthwick, J.P. never testified that her fear of Brooks’ threat to turn over die e-mails overwhelmed her, immobilized her, or paralyzed her. Rather, when asked about the nature of her concern she testified: “[I]t’s not something [an affair with a married coworker] you want public, you know. ... I still, you know, he worked there, a lot of people know him and his wife, and a lot of people know me, and just it was not a good situation.”
At this juncture, I would note that I reject the majority’s characterization of the facts suggesting that Brooks physically overcame J.P. While the majority points out that J.P. testified Brooks became agitated before they had sex, J.P. never testified that this fact had anything to do with her decision to submit to intercourse or intensified her fear. In fact, she specifically clarified that Brooks’ threats remained the same despite his agitation.
Finally, while the majority points out that circumstantial evidence can be relied on to show that a rape victim was overcome by fear, the only case it cites to support that proposition, State v. Cantrell, 234 Kan. 426, 428-29, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817 (1984), is markedly distinguishable. In Cantrell, despite the lack of threats or force by the victim, there was ample evidence that the victim was overcome by her fear. Specifically, the victim testified she (1) resisted and struggled with defendant, (2) cried, and (3) begged for defendant to stop.
To be clear, I am not proposing that in order to convict a defendant of rape under K.S.A. 2005 Supp. 21-3502(a)(l)(A), the State must show that the victim physically resisted the defendant. Nor am I suggesting that the defendant is not criminally responsible for his actions here. Instead, I would hold that the State does not prove the actus reus of the crime of rape simply by establishing that the victim did not consent and that die victim feared the defendant. Instead, the State must present sufficient evidence that the victim did not consent, that she feared the defendant, and that she was immobilized or paralyzed by that fear. Because the State failed to present evidence of the latter element here, I would affirm *699the defendant’s two blackmail convictions and reverse his conviction of rape.