Boyer v. Belleque

• Decision Date: 28 October 2011
• Docket Number: No. 10–35574.,10–35574.
• Citation: 11 Cal. Daily Op. Serv. 13298,659 F.3d 957
• Parties: Andrew Lee BOYER, Petitioner–Appellant,v.Brian BELLEQUE, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

659 F.3d 957

11 Cal. Daily Op. Serv. 13,298

Andrew Lee BOYER, Petitioner–Appellant,

v.Brian BELLEQUE, Respondent–Appellee.

No. 10–35574.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2011.Filed Oct. 28, 2011.

Tonia L. Moro, Assistant Federal Public Defender, Medford, OR, for the petitioner-appellant.John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Assistant Attorney General, Salem, OR, for the defendant-appellee.Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, Senior District Judge, Presiding. D.C. No. 3:06–cv–00035–PK.Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Oregon state prisoner Andrew Lee Boyer appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. He argues that the evidence presented was constitutionally insufficient for a rational jury to find him guilty of attempted aggravated murder beyond a reasonable doubt. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Our review of the evidence convinces us that the prosecution presented evidence of specific intent to kill, as that element has been defined by Oregon state law and interpreted by the state appellate court. Accordingly, the state court's determination that there was sufficient evidence of Boyer's intent to support a conviction for attempted aggravated murder was an objectively reasonable application of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We affirm.

I. Factual and Procedural History

In 1997, a jury convicted Boyer of more than twenty counts of sexual offenses, including sexual abuse, sodomy, and attempted sodomy. Boyer was also convicted of two counts of attempted aggravated murder, based on the theory that, in the course of and in furtherance of the crimes of sexual abuse and sodomy, he attempted to cause the death of two individuals “by performing anal sodomy on the said [individuals], knowing that he ... was infected with [AIDS ¹], a fatal disease that is transmitted to another person by the transfer of body fluids such as semen.” ² On appeal, Boyer challenges only the denial of habeas relief on the attempted aggravated murder convictions.

Because Boyer claims that the evidence presented at trial was constitutionally insufficient to support his attempted aggravated murder convictions, we review the evidence presented on those counts in detail. As is required of us on habeas review when assessing the sufficiency of the evidence of conviction, we view the evidence in the light most favorable to the prosecution. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781 (“[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”); see also Juan H. v. Allen, 408 F.3d 1262, 1266 n. 1 (9th Cir.2005).

A. Evidence Presented at Trial

At trial, the State presented nineteen witnesses over several days. The evidence established that Boyer sexually abused four victims, through touching and oral sex, and that he also anally penetrated two of them. His victims were friends with one another, attended special education programs at school, and were incapable of consenting to sexual conduct due to age or mental defect. At the time of the abuse in 1996, victim B.B. was twelve years old, victims R.K. and G.T. were thirteen years old, and victim R.M. was an eighteen-year-old with the mental capacity of a first or second grader. Boyer was in his mid-thirties. Medical professionals testified about “grooming” techniques often employed by sexual abusers to gain vulnerable victims likely to succumb to the abuser's advances, and testimony showed that Boyer used such techniques in approaching his victims.

1. The Police Investigation

A transcript of Detective Baltzell's initial interview of Boyer, when Boyer was arrested, was admitted in evidence. Boyer then admitted to engaging in sexual activity with R.K., B.B., and R.M. but said it was consensual. Boyer denied having sexual intercourse with B.B. because “the kid was too little, I wouldn't even think about it.” Boyer also said that he had AIDS and “[t]hat's why I'm particularly careful, would not sodomize anybody....”

At trial, Detective Baltzell testified that he interviewed all four victims. Victim B.B. was reticent at first to tell Detective Baltzell of the abuse he had experienced but said that Boyer had anally penetrated B.B. without B.B.'s permission. B.B. also said that, after the anal intercourse occurred, Boyer ejaculated by masturbation and used a towel to clean up the semen. B.B. did not know if Boyer had ejaculated inside of him. Victim R.M. told Detective Baltzell that Boyer had threatened to kill him when R.M. said he wanted to tell the police about the abuse. After first denying that anal penetration had occurred, R.M. disclosed in an interview about two weeks before trial that he and Boyer had anal intercourse. On cross-examination, Detective Baltzell said that none of the victims claimed that Boyer ejaculated inside of them.

2. Evidence related to victim R.M.

Victim R.M. testified that Boyer performed oral sex on him many times and anally raped him on one occasion. R.M. said that he considered Boyer a friend and that R.M. would visit Boyer when bored. R.M. met Boyer through fellow victim R.K. Boyer offered R.M. marijuana and alcohol, but R.M. declined. R.M. went to Boyer's home, where Boyer showed him magazines, took R.M.'s pants off, and performed oral sex on him. Boyer threatened to kill R.M., and later R.M.'s parents, if R.M. told anyone about the abuse. R.M. estimated that he visited Boyer's home about fifty times and that Boyer performed oral sex on him about twenty times in total. R.M. testified that, on one occasion when he and R.K. were spending the night at Boyer's apartment, Boyer anally penetrated R.M. R.M. described the encounter as a rape. R.M. told Boyer to “stop, please” and said “ouch” loudly enough to wake up R.K. R.M. testified that the anal penetration was painful, and that Boyer did not ejaculate while penetrating R.M. but instead ejaculated into the bed afterwards. Boyer did not wear a condom.

Though his account of the timing of the incident differed from that given by R.M., R.K. testified that, while sleeping at Boyer's home, he was awakened by a person he believed was R.M. saying “owe [sic], stop” and that R.M. later told R.K. that R.M. had been raped. Dr. George Suckow, a physician specializing in psychiatry who did a comprehensive psychiatric assessment on R.M., also testified, noting that R.M. said he had been involved, as the passive recipient, in anal intercourse and oral sex with Boyer. Victim G.T. also testified that Boyer had bragged about raping R.M.³

3. Evidence related to victim B.B.

Victim B.B. testified that Boyer sexually abused him on two occasions. The first time, B.B. skipped school with fellow victim R.K., and they went to Boyer's home. Boyer gave them lunch and cigarettes. They watched television and looked at magazines about “[d]ifferent types of sex.” B.B., Boyer, and R.K. masturbated, and all three went into the bedroom. Boyer unsuccessfully tried to have B.B. anally penetrate Boyer, and then Boyer performed oral and anal sex on B.B. B.B. testified that Boyer did not ask his permission to engage in anal sex, that he did not know if Boyer ejaculated into him, and that there were no stains in B.B.'s underpants afterwards. B.B. also testified that the anal penetration was painful. R.K. testified that he witnessed Boyer performing oral and anal sex on B.B. B.B. testified that he went back to Boyer's apartment with R.K. a day or two later for the second and last time and that Boyer touched B.B.'s penis. R.K.'s testimony did not mention this incident.

Dr. Michael Lukschu testified that he conducted an examination and evaluation of B.B. for suspected child abuse and that B.B. disclosed that Boyer had penetrated his anus.

4. Testimony by Boyer's treating physician

At trial, Dr. David Gilbert, Boyer's treating physician since January 1992, testified about Boyer's medical history and about HIV and AIDS generally. Dr. Gilbert stated that Boyer was first diagnosed with HIV around 1986 and that he had AIDS by July of 1993. Dr. Gilbert testified that in 1993, Boyer's prognosis was that he most likely had two more years to live. Boyer stopped complying with his drug treatment in July of 1996 and had a high blood viral count in early December of 1996.

Dr. Gilbert stated that HIV may be passed through bodily secretions, that there is a higher risk of transmission when the viral count in the blood is higher, and that “the two major modes of transmission are sexual activity and contaminated blood.” Dr. Gilbert said that Boyer was given information that his viral count would go up if he did not take his medication, but Dr. Gilbert could not remember whether he told Boyer that the risk of infecting others would also be higher. He stated that he counseled Boyer in January of 1992 “regarding the need to use condoms and practice safe sex” and gave him some pamphlets on it. Dr. Gilbert testified that safe sex involved the use of condoms and that he would expect Boyer to know the dangers of unprotected anal intercourse.

When asked whether a person who was the recipient of anal sex by an HIV-positive person had a high risk of contracting the disease, Dr. Gilbert stated that “for each sexual exposure, there is somewhere between a one [in] a 100 and one in a 1,000 chance of acquiring the disease through that sort of activity.” He testified that although the risk of infection would be lower during anal sex if no ejaculation occurred, “prior to ejaculation, there are secretions that come out of...