dissenting: I respectfully dissent. In my opinion, the trial court’s failure to give a jury instruction based on State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006), was not clearly erroneous under the facts of this case where the trial court never received a question from the jury regarding withdrawal of consent during intercourse.
I will begin my analysis by mentioning some pertinent facts of the case which are not included in the majority opinion. According to Ira Wayne Flynn’s own testimony, A.S. began to cry at the scene of their sexual encounter. He asked her what was wrong, and she declined to answer. Flynn attempted to make conversation with A.S., but she never responded. Flynn drove to Shawn Howell’s house, and A.S. remained silent during the drive. Flynn testified that when he came to a stop, A.S. “took out, she left.” A.S. immediately reported the rape to her friends, and within a few hours, she reported the rape to law enforcement.
Flynn further testified that he attempted to call A.S. three times that night. In the first phone call to A.S., Flynn left a message indicating that he had “fucked up.” In the second phone call to A.S., Flynn left a message indicating that he realized he would have to do about 2 years of jail time. In his third phone call to A.S., Flynn left a message saying that he would call the cops himself so that she would not call die cops and he apologized to A.S. because he thought that she was angiy with him. The recorded phone messages were played to the juiy.
Flynn also testified that at the time of the alleged rape he was on probation for possession of paraphernalia and possession of marijuana. Flynn presented this testimony to mitigate the fact that one of his phone messages to A.S. indicated that he would be *1120spending some time in jail. In addition, Flynn testified that, as a juvenile, he committed a “smash and grab” at a video store.
Turning to Bunyard, this was a case of first impression in Kansas concerning rape and the withdrawal of consent after penetration. The defendant was charged with three counts of rape stemming from three separate incidents with different women over a 2-year period. The prosecutor combined all three charges into one complaint, and the defendant’s motion to sever the charges was denied by the trial court. At trial, the defendant was acquitted of two of the charges but found guilty of one count of rape. On the guilty count, there was no dispute that the sexual intercourse between the defendant and the victim initially was consensual, but the victim withdrew her consent after the defendant had already penetrated her. After 5 or 10 minutes had passed, tire defendant stopped having sexual intercourse with the victim.
During deliberations, the jury posed the following question to the court: “ If someone allows penetration, but then says no and he does not stop, does that fit the legal definition of rape? Please elaborate on the law. . . .’” 281 Kan. at 408. In response to the jury’s question, the trial judge referred the jury to the instructions that had already been given and indicated that the court could not elaborate any further.
On appeal, the Kansas Supreme Court held that the trial court did not abuse its discretion in denying the motion to sever the charges. 281 Kan. at 403. Regarding the issue of withdrawal of consent after penetration, the court determined that K.S.A. 2004 Supp. 21-3502(a)(l)(A) proscribes all nonconsensual sexual intercourse that is accomplished by force or fear, not just the initial penetration. Thus, under the language of the statute, the court concluded that a person may be convicted of rape if consent is withdrawn after the initial penetration but intercourse is continued by the use of force or fear. 281 Kan. at 412.
In addition, the court went beyond the statutory language and determined that in the case of consensual intercourse and withdrawn consent, a defendant is entitled to a reasonable time in which to act after the consent is withdrawn. The court concluded that a reasonable time depends upon the circumstances of each *1121case and is judged by an objective standard to be determined by the trier of fact under the circumstances of each individual case. 281 Kan. at 414-15. Regarding the trial court’s response to the question from the jury, the court outlined with approval responses to jury questions that had been given in other states under similar circumstances. The court held that, under the facts of the case, “the trial court’s answer to a question posed by the jury was insufficient to properly instruct the jury how to consider this unique case of first impression. The problem with the trial court’s response is that it failed to address the question asked by the jury.” 281 Kan. at 410.
After the Supreme Court decided Bunyard, the PIK committee cited the holding of the case in the comment section of PIK Crim. 3d 57.01. However, in the 5 years since Bunyard was decided, the PIK committee has not seen fit to draft a new instruction incorporating the Bunyard holding as a jury instruction to be given by trial courts in Kansas prior to the commencement of deliberations.
I dissent from the majority’s reliance on the Bunyard decision for two reasons. First, for whatever it may be worth, I agree with Justice Luckert’s dissenting and concurring opinion in Bunyard. Justice Luckert agreed with the majority that a defendant has committed rape if, after consent is withdrawn, the act of intercourse continues as the result of force or fear. 281 Kan. at 425. As Justice Luckert pointed out, this holding is consistent with the elements of rape defined by K.S.A. 2004 Supp. 21-3502(a)(l)(A). However, Justice Luckert stated that the court should not judicially add a defense allowing a reasonable time in which to commit rape. 281 Kan. at 425. I agree that the Kansas appellate courts should not add a judicially created defense to rape that is not found in the express language of the statute, and I believe the Kansas Supreme Court should reevaluate its holding in Bunyard on this point.
Of course, I recognize that the Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). The main reason for my dissent is because the present case is factually and legally distinguishable from Bunyard. An obvious *1122factual distinction is that in Bunyard, there was no dispute that the sexual intercourse between the defendant and the victim was initially consensual. Here, A.S. testified that the entire encounter between herself and Flynn was nonconsensual and that he raped her. Given the fact that A.S. never agreed that any part of the encounter was consensual, the issue of withdrawal of consent was not squarely before the juiy in this case as it was in Bunyard. Thus, the trial court’s decision to wait for a question from the jury before addressing the issue seems to have been a prudent approach under the facts of the case.
This leads to the most obvious distinction between Bunyard and the present case. Bunyard involved a request from the juiy for specific clarification of the law on withdrawal of consent after penetration. In Bunyard, the jury was obviously struggling with this issue and asked the trial court for guidance on the law. The trial court essentially ignored the jury’s request, referred the jury to the original instructions, and indicated the court could not elaborate further. The Bunyard court held that under the facts of the case, the trial court failed to provide the jury with a complete answer to its question concerning the charge of rape. 281 Kan. at 415-16. The court outlined with approval responses to jury questions that had been given in other states under similar circumstances, but the court did not address the issue beyond this context.
This case would present a much closer issue for me if the defendant had requested a jury instruction at trial. But as the majority notes, Flynn did not request or proffer an instruction regarding withdrawal of consent and he did not object to its omission at trial. Even on appeal, Flynn has not proposed a specific instruction that he believes the trial court should have provided to the jury. Under these circumstances, an appellate court applies a clearly erroneous standard of review. K.S.A. 22-3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred.” 288 Kan. at 451-52.
According to Flynn’s own testimony, A.S. began to ciy at the scene of their sexual encounter. He asked her what was wrong and *1123she declined to answer. As Flynn drove back to Howell’s house, he attempted to make conversation with A.S., but she never responded. When Flynn stopped the car in front of Howell’s house, A.S. took off and left her own car behind. A.S. immediately reported the rape to her friends, and within a few hours, she reported the rape to law enforcement.
Also according to Flynn’s own testimony, he attempted to call A.S. three times that night. In the first phone call to A.S., Flynn left a message indicating that he had “fucked up.” In the second phone call to A.S., Flynn left a message indicating that he realized he would have to do about 2 years of jail time. In his third phone call to A.S., Flynn left a message saying that he would call the cops himself so that she would not call the cops, and he apologized to A.S. because he thought that she was angry with him. The recorded phone messages were played to the jury.
Granted, the jury only convicted Flynn of one count of rape and the jury acquitted Flynn of the other charges. But I think the majority reads too much into this verdict. For all we know, the guilty verdict on only one count of rape may have been the jury’s response to the multiple charges filed against Flynn arising from essentially one continuing sexual encounter between the parties. Further, Flynn cannot say that a jury instruction based on Bunyard was necessary to support his theory of defense, because his theory of defense was that his entire sexual encounter with A.S. was consensual.
During deliberations, the jury never inquired about the law concerning withdrawal of consent after penetration, and the jury never gave any indication that the original jury instructions provided by the court were insufficient. Considering the record as a whole, I am not firmly convinced there is a real possibility the jury would have rendered a different verdict had the district court provided a juiy instruction based on Bunyard. Accordingly, I conclude the trial court’s failure to do so was not clearly erroneous, and Flynn’s conviction of one count of rape should be affirmed.