dissenting: I respectfully disagree with the majority’s holding that the evidence was sufficient to support the conviction of rape by intoxication.
The majority misconstrues the Court of Appeals decision. The majority notes that the Court of Appeals drew a distinction between being intoxicated and being unable to consent to sex as a result of intoxication. The majority then states: “The derivation of this standard is unclear.” I would suggest the majority reread K.S.A. 21-3502(a)(l)(C). It clearly states “when the victim is incapable of giving consent because of the effect of any alcoholic liquor. . . .” (Emphasis added.) The majority has rewritten the statute to provide only that a victim be intoxicated. Obviously, the victim could be “intoxicated” and still be able to understand that defendant wants to have sex and be able to consent. The State is required to present evidence that due to the victim’s intoxication, *23she could not consent. The best evidence would be from the victim. The evidence was that she understood what defendant wanted, and she said “no.” She did not want to have sex and told him so. She testified she did not consent. She even cried out for help when the defendant was taking her clothes off in the bedroom. As the Court of Appeals noted, the State presented no expert testimony as to the effect of consuming two beers by this victim. The Court of Appeals correctly concluded that “there was an abundance of evidence K.G. may have been intoxicated or drunk, [but] there is no evidence that she was unable to consent to sexual relations as a result of the intoxicating liquor.”
The majority’s gratuitous examples to illustrate the weakness of the Court of Appeals’ holding are not relevant and deal with situations in which consent is an issue. Here, consent was not an issue. The defendant never claimed K.G. consented. In fact, when he was arrested and interrogated by the police officers, he denied even being alone with K.G. He denied having sex with K.G., let alone having consensual sex with her.
Chaney’s counsel argued various points; consent was not one of them. The defendant’s closing argument covers 10 pages in the transcript of the trial, and the only mention of consent is relative to an attack on K.G.’s credibility:
“I’ll submit, ladies and gentlemen, that there has not been evidence submitted to you that would establish beyond a reasonable doubt that any of these tilings occurred. And particularly that anything occurred without the consent of [K.G.]. Now, none of us like to think of 14 year olds engaging in sex. I don’t know about you, but it kind of bothered me when I heard Judy Trujillo testify that when she talks to [K.G.], that she said, it’s just the regular old thing. I’m not sure 14 year olds should refer to it as just the regular old thing. I hope it’s not regular. It also bothered me that [K.G.] Ued to Detective Trujillo. When Detective Trujillo asked her about intoxication, [K.G.] said, I only had one beer in my entire lifetime before that point, before that date, that’s all I ever had. That’s not what she testified to at preliminary hearing. When she’s under oath, in front of the judge, she said I was feeling kind of dizzy like I usually do when I got drunk. Then on direct examination of [the county attorney] she testifies she’s got an alcohol problem, and that’s a long ways from having only one beer in your lifetime.”
I must also take issue with the majority’s stating that the Court of Appeals’ analysis requires that “a rape victim would have to be *24intoxicated to the point of unconsciousness to be unable to consent.” The word “unconscious” does not appear in the Court of Appeals opinion, nor can it be inferred. The majority is blatantly incorrect and has resorted to using smoke and mirrors to justify its decision. The Court of Appeals’ rationale is clearly stated as follows:
“It is noted that the statute neither speaks of nor does it require a victim to be intoxicated. Thus, simple proof of intoxication, without more, is not sufficient. Consent is a two-edged sword; on one side is consent and on die other is refusal to consent. If die victim can do one, he or she can do either.
“While there was an abundance of evidence that K.G. may have been intoxicated or drunk, there is no evidence diat she was unable to consent to sexual relations as a result of the intoxicating liquor.
“Indeed, there is direct evidence from the victim’s own testimony that she was, in fact, capable of consenting and was not affected by the liquor to the extent she could not consent.
“The victim denied that she was so intoxicated she was not able to tell defendant no. The record indicates that she told defendant no on several occasions. An individual who has the ability to say no and refuse to consent to sex can also say yes and consent to the act.
“The evidence in this case indicates to us that this was a case of forcible rape, and the State utilized the protestations of the victim to prove that count of the indictment. On final argument, the State argued:
“ ‘Then there is probably the most powerful statements in die case and that is the fact we have an individual who says that on multiple occasions she heard [K.G.] plead for help and say, no and say, stop. Now the defendant wants you to believe that diere is no evidence of force or fear. There’s no evidence she was held down or tied down. That she was extremely afraid. Think about those pleas. Stop, help me, help me, no. Isn’t that all the evidence you need for force, or force and fear.’
“We agree with the comments of the prosecutor on closing argument. The State’s problem is that it did not prove that K.G. was unable to consent because of intoxicating liquor. In fact, the evidence shows that K.G. did not consent, knowingly telling defendant no. This was the testimony of K.G., and it is the only direct testimony in this case which indicates whether she was capable of withholding her consent because of her consumption of two beers.”
I further disagree with the majority’s interpretation of 21-3502(a)(1)(C). Although the majority notes the 1969 version of the statute and the change resulting from the 1993 amendment, it totally ignores the intent and purpose of the 1993 amendment. In 1983, the statute was amended to eliminate the requirement that a victim must resist and the defendant must overcome that resis*25tance to constitute rape. This amendment triggered the 1993 amendment, since the central inquiry became consent and not whether the victim’s resistance was overcome. The purpose of the 1993 amendment, according to testimony of the bill’s sponsor, was to eliminate the distinction in subsection (d) of alcohol voluntarily consumed by the victim and that which is administered by the defendant or someone else:
“It seems that when a victim is incapable of giving consent because of die effect of any alcoholic liquor or drug, it is radier immaterial who has administered die substance. A rapist should not be able to hide behind die fact that he didn’t administer the drugs or he didn’t know diey had been administered when it is obvious that the victim cannot give consent for some reason.” Testimony by Senator Lillian Papay, Senate Judiciary Committee (Feb. 18, 1993).
Clearly, the amendment applies when the defense is that the victim consented to sexual intercourse. It provides additional protection for the victim in such a case. However, the way the statute was amended, the legislature failed to clearly convey that intent but, rather, confused what constitutes the offense of rape. The intent in amending subsection (c) was not to create an alternative count of rape. In the present case, the State prosecutor recognized the confusion created by the amendment in his closing argument to the jury:
“I want to hit on a few things raised by [the defense attorney], and then I will conclude. I will not take too much more of your time. [The defense attorney] noticed or noted that Instruction No. 8 that deals with the theory of rape by means of intoxication. There’s the issue of whether or not she was capable of consenting when she said she did [sic] consent. Read that instruction very carefully. It’s a confusing point because what you will find that the State has to prove that the sexual intercourse occurred without the consent of [K.G.], and then it goes on to say that she was incapable of giving consent because of the effect of alcoholic liquor. So you’re going to have to use your common sense in interpreting what the law means on this particular item. It can be somewhat confusing. One way it seems to indicate she didn’t consent, and then we have to prove that she didn’t consent, that she wanted to. Review that.”
We are to strictly construe criminal statutes in favor of the accused. This, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect the legislative design and intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d
*261235 (1998). The majority interprets the 1993 amendment to create an additional definition of rape, a separate count, if you will. K.S.A. 21-3502(a)(1)(C), as applicable here, reads: “Rape is . . . [s]exual intercourse with a person who does not consent to the sexual intercourse . . . when the victim is incapable of giving consent because of the effect of any alcoholic liquor . . . .” If the victim does not consent, what is the logic, relevance, or rationale of further requiring that she be incapable of consenting? It makes no sense. Further, the logical extension of that interpretation would be that sexual intercourse with a victim who does not consent, but who is capable of consenting, would not be rape. If that is a reasonable, strict interpretation of 21-3502(a)(l)(C) in favor of the defendant, then God help us all.
It is only where consent is an issue that 21-3502(a)(l)(C) is relevant and applicable. If the defendant claims the sexual intercourse was consensual and there is evidence that the victim consented either verbally or by her actions, then her inability to consent due to intoxication becomes relevant.
In State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994), this court stated:
“The ‘force’ required to sustain a rape conviction in this state does not require that a rape victim resist to the point of becoming the victim of other crimes such as battery or aggravated assault. K.S.A. 21-3502 does not require the State to prove that a rape victim told the offender she did not consent, physically resisted the offender, and then endured sexual intercourse against her will. It does not require that a victim be physically overcome by force in tire form of a beating or physical restraint. It requires only a finding that she did not give her consent and that the victim was overcome by force or fear to facilitate the sexual intercourse.”
As the Court of Appeals noted, it was unfortunate the jury acquitted the defendant of rape by force or fear. In my view, the defendant committed rape by force or fear and why the jury did not convict him of that offense is a mystery. It could well have been that the jury was as confused as the prosecutor as to the meaning of Instruction No. 8. However, I cannot agree that two wrongs make a right. I would affirm the Court of Appeals.