State v. Boleyn

• Citation: 297 Kan. 610,303 P.3d 680
• Decision Date: 14 June 2013
• Docket Number: No. 105,483.,105,483.
• Parties: STATE of Kansas, Appellee, v. Dean J. BOLEYN, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

297 Kan. 610

303 P.3d 680

STATE of Kansas, Appellee,

v.Dean J. BOLEYN, Jr., Appellant.

No. 105,483.

Supreme Court of Kansas.

June 14, 2013.

Syllabus by the Court

1. When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. Evidence is relevant if it has any tendency in reason to prove any material fact. Accordingly, there are two elements of relevancy: a materiality element and a probative element. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency in reason to prove a fact. An appellate court reviews a district court's determination that evidence is probative for abuse of discretion whereas the district court's decision regarding materiality is reviewed de novo.

2. It is no more reasonable to assume that a preference for same-gender, adult sexual partners establishes a proclivity for sexual gratification with same-gender children than it is to assume that preference for opposite-gender, adult sexual partners establishes a proclivity for sexual gratification with opposite-gender children. Accordingly, evidence of homosexuality is generally irrelevant and, thus, inadmissible at a trial involving the sexual molestation of a child.

3. When a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere.

4. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact that an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party.

5. A district judge has broad discretion in determining the use and extent of relevant evidence in rebuttal, and such a ruling will not be ground for reversal absent abuse of that discretion that unduly prejudices the defendant. Generally, admission of rebuttal evidence intended to contradict facts put into evidence during the defense case is not error.

6. The three-part test found in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), applies to constitutional challenges to sentences under § 9 of the Kansas Constitution Bill of Rights. In Freeman, this court recognized that “[p]unishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”

7. In determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual inquiries. These inquiries invoke a bifurcated standard of review: without reweighing the evidence, the appellate court reviews the factual underpinnings of the district court's findings under a substantial competent evidence standard, and the district court's ultimate legal conclusion drawn from those facts is reviewed de novo.

8. No one factor of the three-part Freeman test for determining whether a sentence is cruel or unusual controls. Ultimately, one consideration may weigh so heavily that it directs the final conclusion. Before that conclusion is reached, however, consideration should be given to each prong of the test. The first Freeman factor ( i.e., the nature of the offense and the character of the offender) is inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant. The second and third Freeman factors ( i.e., a comparison of the punishment with the punishment imposed in this jurisdiction for more serious offenses; a comparison of the penalty with punishments in other jurisdictions for the same offense) are legal determinations.

9. The legislative intent underlying Jessica's Law is to protect children by removing perpetrators of sexual crimes against children from society. The United States Supreme Court has observed that sex offenders represent a particularly serious threat in this country and that they are more likely than any other type of offender to commit violent crimes following their release. The State therefore has a particularly compelling interest in using incarceration as a means of protecting its youth from sexual offenders.

10. An issue not briefed by an appellant is deemed waived and abandoned.

[297 Kan. 612]11. An appellant's failure to brief each of the three parts of the Freeman test results in the issue not being presented in a posture to be effectively decided on appeal.

Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

Dean J. Boleyn, Jr., was convicted of aggravated indecent liberties with a child and sentenced to a hard 25 life sentence pursuant to Jessica's Law. On appeal, he argues that the district court erred when it admitted evidence at his jury trial establishing that he possessed pornography depicting homosexual acts. Boleyn also argues that the district court erred when it determined that his life sentence was constitutional.

Facts

Boleyn began a romantic relationship with Angela Valentine around Christmas 2005. Valentine had two sons from a previous relationship, T.V. (born May 3, 1999) and A.V., who was younger than T.V. She shared custody of the two boys with their father, Nick Valentine.

In May 2006, Boleyn and Valentine moved into an apartment in Wichita. Then, sometime between late January and early February 2007, they moved into a house outside of Haven near Cheney Reservoir. T.V. and A.V. would stay at the house on days and weekends that Valentine had custody of the boys.

Boleyn developed a seemingly appropriate relationship with the boys. While he was living in the house, Valentine never observed anything to raise any concerns about Boleyn's relationship with either boy. But Valentine believed Boleyn spent a lot of time with T.V., leading to arguments between the couple. Valentine said that Boleyn “was just more interested in spending time with [T.V.] than he was with spending time with me” and felt that Boleyn had a better relationship with T.V. than with her. With regard to A.V., Valentine said that although Boleyn interacted with A.V. and “wasn't bad” to him, she believed that Boleyn favored T.V. and that Boleyn's relationship with A.V. was not nearly as close as his relationship with T.V. Valentine said that Boleyn and T.V. “were inseparable.”

Boleyn and Valentine's relationship deteriorated because, according to Valentine, the sexual aspect of their relationship was “nonexistent.” This led Valentine to ask Boleyn sometime in January 2009 whether he was gay. According to Valentine, Boleyn answered by saying, “[N]o, I don't think so.” Three to four days after Valentine questioned Boleyn about his sexuality, he moved out of the couple's home and into his parents' home in Wichita.

Because of the boys' close relationship with Boleyn, Valentine decided that it was in their best interest for them to continue seeing Boleyn. Accordingly, Valentine made arrangements for Boleyn to spend time with the boys. Valentine said that usually on Sundays Boleyn would come to the house and pick up both boys and take them out for a few hours.

Several months after Boleyn moved out, Valentine began to feel discomfort regarding Boleyn's relationship with T.V. According to Valentine, Boleyn called T.V.'s cell phone a lot and sent text messages to him late at night. Valentine read some of these text messages. She recalled one text message which caused her some concern: Boleyn texted T.V. that he was going to take a nap and asked T.V. to take a nap with him.

Sometime in the summer 2009, Valentine asked Boleyn to fill out some paper-work so she could file a claim with his mortgage insurance (Valentine was having trouble paying the mortgage, and Boleyn had been unemployed for 2 months.). Boleyn did so, and Valentine filed a claim with the insurance company. Eventually, the insurance company mailed a check to Valentine for $2,696.83, but the check was made out to Boleyn. In July 2009, Valentine contacted Boleyn and asked him to meet her at her bank—located inside Walmart—so he could sign the check over to her, enabling her to receive the proceeds. Boleyn agreed to do so, but on his way to Walmart, he called Valentine and told her that he wanted $1,000 from the check. Valentine told him she would not give him any money from the check.

When Boleyn arrived at the bank in Walmart, he and Valentine got into an argument. Valentine told Boleyn that unless he endorsed the check, he was not going to see the boys anymore. Boleyn got up to leave, apparently taking the check with him. Valentine and Boleyn started struggling with each other over the check. Valentine finally told Boleyn that she would give him $500 and allow him to see the boys if he signed the check. Boleyn agreed and eventually signed the check over to Valentine. Instead of giving Boleyn $500, however, Valentine ultimately deposited the entire amount in her account. According to Valentine, Boleyn walked away from the bank very angry.

On July 26, 2009, shortly after the incident at Walmart, Valentine—based on a feeling she was having that something was wrong with T.V.—asked T.V. if anyone had ever done or said anything to him that made him feel uncomfortable. T.V. answered yes. Valentine then asked T.V. who had made him feel uncomfortable. T.V. was not...