State v. Boysaw

• Decision Date: 08 April 2016
• Docket Number: No. 112,834.,112,834.
• Citation: 372 P.3d 1261,52 Kan.App.2d 635
• Parties: STATE of Kansas, Appellee, v. Kenneth BOYSAW, Appellant.
• Court: Kansas Court of Appeals

52 Kan.App.2d 635

372 P.3d 1261

STATE of Kansas, Appellee,

v.Kenneth BOYSAW, Appellant.

No. 112,834.

Court of Appeals of Kansas.

April 8, 2016.

Corrinne E. Gunning, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.

SCHROEDER

, J.

On appeal, Kenneth Boysaw claims: (1) There was insufficient evidence to convict him of indecent liberties with a child; (2) the district court improperly applied K.S.A. 2015 Supp. 60–455(d)

in allowing his prior Nebraska conviction for sexual assault of a child to be admitted before the jury to show propensity to commit sexual acts; and (3) the district court improperly used his prior Nebraska conviction to sentence him to lifetime imprisonment without parole as a habitual sex offender in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We find no error by the district court and affirm.

Facts

Kenneth Boysaw was charged with aggravated indecent liberties with a child in violation of K.S.A. 2015 Supp. 21–5506(b)(3)(A)

. Pursuant to K.S.A. 2015 Supp. 60–455(d), the State filed a motion to admit evidence of Boysaw's 1987 Nebraska conviction for sexual assault of a child.

At a pretrial hearing on the State's motion, the State requested admission of Boysaw's two prior sex-related convictions, one in 1979 and one in 1987. The district court found there was a “striking similarity” between the 1987 act and the currently charged act, but not the 1979 conviction, and denied admission of the 1979 conviction. The district court also found that the time elapsed since the 1987 conviction, the frequency of the prior acts, and any intervening events did not prohibit admission of the 1987 conviction. The district court agreed the conviction could be admitted to show propensity and for proving intent, absence of mistake, and absence of accident. Prior to Boysaw's jury trial, the State limited the request for admission of the 1987 conviction to propensity only. The district court allowed the evidence over Boysaw's objection in the form of a limited stipulation announced to the jury after the content of the stipulation was agreed to by Boysaw and the State. The stipulation reflected:

“1. That the defendant, Kenneth Boysaw, was convicted of the crime of Sexual Assault of a Child on February 12, 1987.

“2. Specifically, the defendant, Kenneth Boysaw, on August 25th, 1986, a date when he was 36 years of age[,] touched B.J.H. in a sexual manner. B.J.H. was a female aged 9 years at the time of the touching. In the basement of his home, he removed B.J.H.'s panties and touched her vagina with his hand in a rubbing motion. He did not penetrate her. Mr. Boysaw opened his pants exposing his penis and touched himself.”

At trial, G.E.M., who was 6 years old at the time she was improperly touched, testified she was riding an electric scooter at her grandfather's apartment. The scooter belonged to “her friend” (Boysaw). G.E.M. ran into a trashcan and received “a little scratch” on her left arm. After the accident, Boysaw asked G.E.M. if she wanted popcorn, and they went back to his apartment. G.E.M. testified that while they were sitting on the couch, Boysaw rubbed her “private part” with his whole hand.

G.E.M.'s mother testified G.E.M. had been riding Boysaw's scooter and someone would check on G.E.M. every 5 or 10 minutes. When G.E.M.'s mother couldn't find G.E.M., she began looking for her. G.E.M.'s mother walked over to Boysaw's apartment and, through the open door, saw G.E.M.'s pants and underwear around her ankles while G.E.M. sat between Boysaw's legs. She testified Boysaw's pants were unfastened, and he had to adjust his penis to refasten them. She did not see his penis.

Officer Virgil Miller testified regarding his interviews with G.E.M., her mother, and Boysaw. Officer Miller testified that Boysaw told him he was checking G.E.M. for injuries, her pants were around her ankles because he was looking for an injury on her leg, and his penis was never outside his pants. Officer Miller also testified Boysaw specifically denied pulling G.E.M.'s pants completely down.

At the close of the State's case in chief, the district court judge advised the jury both the State and Boysaw were stipulating that Boysaw had been convicted of sexual assault of a child in 1987. The stipulation as read to the jury also provided a summary of the facts in the 1987 conviction, including the age of the victim and the manner of the assault.

The jury returned a guilty verdict. At sentencing, Boysaw's criminal history in the presentence investigation report (PSI) reflected a 1979 conviction for attempted indecent liberties and a 1987 Nebraska conviction substantially similar to indecent liberties with a child or aggravated indecent liberties with a child. The district court sentenced Boysaw to life imprisonment without the possibility of parole as a habitual sex offender. Boysaw timely appealed.

AnalysisSufficiency of the Evidence

Boysaw claims the evidence was insufficient to convict him of aggravated indecent liberties with a child. Specifically, he argues the State did not present direct or circumstantial evidence of his intent to arouse or satisfy his sexual desires.

When sufficiency of the evidence is challenged in a criminal case, the appellate court reviews all the evidence in the light most favorable to the prosecution. The conviction will be upheld if the court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on the evidence presented. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014)

. The appellate court generally will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525, 324 P.3d 1078. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983)

; see State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998) (uncontroverted expert testimony that defendant physician's treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).

Aggravated indecent liberties with a child is a specific intent crime. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011)

. Pursuant to K.S.A. 2015 Supp. 21–5506(b)(3)(A), aggravated indecent liberties with a child is defined as, in relevant part: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both, ” when the child is less than 14 years old. (Emphasis added.) Actual arousal or satisfaction of the child or offender's sexual desires is unnecessary. State v. Brown, 295 Kan. 181, 201, 284 P.3d 977 (2012). The intent to arouse sexual desires may be shown by circumstantial evidence. State v. Clark, 298 Kan. 843, 850, 317 P.3d 776 (2014).

A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014)

. A conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689, 317 P.3d 54. However, the circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).

Based on the direct evidence, or inferring from the circumstantial evidence given regarding how G.E.M. was found with Boysaw, there was both direct and circumstantial evidence sufficient for the jury to find his intent was to arouse or satisfy his sexual desires. G.E.M.'s mother testified G.E.M.'s pants and underwear were around her ankles when G.E.M.'s mother entered Boysaw's doorway. G.E.M. testified Boysaw touched her “private part” and was “rubbing it” with his hand. G.E.M.'s mother testified Boysaw's pants were unfastened and he had to adjust himself through his clothing to refasten them. Though G.E.M. had been injured when she crashed Boysaw's scooter, she testified her injury was a little scratch on her left arm. Thus, there was sufficient evidence to convict Boysaw of aggravated indecent liberties with a child.

K.S.A. 2015 Supp. 60–455(d) Is Constitutional.

On appeal, Boysaw claims: “K.S.A. [2015 Supp.] 60–455(d)

erodes the fundamental right to a presumption of innocence by allowing a jury to consider a defendant's prior convictions for general propensity purposes.... [T]he statute [is] unconstitutional because it denies defendants the right to a fair trial and due process under both the Kansas and [United States] Constitutions.” Boysaw fails to argue K.S.A. 2015 Supp. 60–455(d) violates a defendant's rights to a fair trial and due process under the United States Constitution. A point raised incidentally in a brief and not argued is deemed waived and abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). With no claim made under the United States Constitution and deemed waived, we proceed to address Boysaw's claim under the Kansas Constitution Bill of Rights §§ 10 and 18.

K.S.A. 2015 Supp. 60–455(d)

states:

“Except as provided in K.S.A. 60–445

, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense ..., evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” (Emphasis added.)

Determining a statute's constitutionality is a question of law subject to unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014)

. Appellate courts presume statute...