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. n issue not briefed by an appellant is deemed waived and abandoned.
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.
Appeal from Reno District Court; Richard J. Rome, judge.
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.
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.
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 paperwork 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 immediately forthcoming with an answer but eventually said, "Dean." At that point, Valentine did not question T.V. anymore but called Nick, T.V.'s father, to come over to the house to speak with T.V.
Nick arrived at the house about 20 to 25 minutes later, and he and T.V. spoke by themselves outside. After the conversation, Nick told Valentine what T.V. had told him (Nick did not testify at trial, so the contents of this conversation were not admitted at trial.). After speaking about the conversation, Valentine and Nick agreed to contact the police.
Because Valentine believed that the Haven Police Department lacked the capabilities to investigate the alleged crime, she decided to contact the Wichita Police Department. They went to Nick's parents' house in Wichita, and a Wichita police officer came to the home and took a report. Valentine was eventually told to make a criminal report in Reno County. On July 27, 2009, she made a report to the Reno County Sheriff's Department.
On August 12, 2009, a police detective came to Valentine's home to record a phone conversation between T.V. and Boleyn. T.V. placed a phone call to Boleyn using the home phone while the detective recorded the conversation and wrote statements for T.V. to say to Boleyn over the phone.
The phone conversation lasted a little over 23 minutes. After initial pleasantries and telling Boleyn about accidentally shooting his younger brother with a BB gun, T.V. told Boleyn that he thought Valentine knew "what happened" between them. Boleyn said, "I don't think so, " and asked T.V. if he had said anything. T.V. said no. Boleyn said that Valentine was probably mad at him for what happened at Walmart. T.V. told Boleyn that Valentine had been asking questions about "what's been going on between you and me." Boleyn said, "She has?" Boleyn then asked T.V. if he knew what would happen if he said anything. Boleyn said he would "be going to jail for the rest of his life." T.V. asked why, and Boleyn said because "it was not right" because he was an adult and T.V. was a kid.
T.V. then asked Boleyn why he did "those things" to him. Boleyn said he did not know and that "it just kind of happened." Boleyn promised T.V. that it would never happen again and told T.V. that he was sorry. Boleyn said that what he did was wrong and that he should have never done it. T.V. then asked Boleyn, "[W]hy me?" Boleyn said, "I don't know, it just kind of happened."
Boleyn asked T.V. if it was going to be okay, and T.V. said yes. Boleyn promised it would never happen again and told T.V. that he loved him. He also told T.V. that he would always be there for him. T.V. said that he was having bad dreams about "it." Boleyn said that he was having some pretty bad dreams too and that he had been having trouble sleeping for the last 3 weeks. Boleyn said that he prayed to God every night to forgive him for what he had done.
T.V. asked Boleyn whether, if they got together in the future, he would touch him again like he had done before. Boleyn said, "[N]o, never again." Boleyn said that he was really sorry for what had happened and promised it would never happen again.
T.V. then told Boleyn that Valentine had been asking him questions and asked Boleyn what he should tell her. Boleyn told T.V. that it was up to him to decide what to tell Valentine, but reminded T.V. that he knew the "consequences" if he told Valentine. Boleyn told T.V. that if he wanted that to happen, so be it. Boleyn said that he would be gone forever and that his life would be over. Boleyn then told T.V. that he would like it if T.V. did not say anything. Boleyn promised not to do "it" again and acknowledged what he did was wrong and said that he apologized for it. Boleyn then said he would really like it if he did not have to go to jail for the rest of his life. He said that "they would probably kill" him for "one mistake." He then told T.V. that he would always be there for him.
T.V. then told Boleyn that what he did made him feel weird. Boleyn said that he felt weird too. T.V. said that he had "never been touched like that." There was a long silence before T.V. finally said, "Hello?" Boleyn responded by telling T.V. that if he needed something, he could just call him. Boleyn then asked T.V. if he was mad at him. T.V. said no.
After talking about various things, T.V. eventually told Boleyn that Valentine was considering taking him to a counselor. T.V. suggested that he was going to tell the counselor what happened. In response, Boleyn told T.V. that he knew what would happen if he did that. Boleyn asked T.V. if he was "really that upset" and then asked T.V. why he did not say something to him about being upset. T.V. responded by saying that he never had a chance. Boleyn told T.V. that he always had a chance to tell him. Boleyn then said that he was really sorry for what had happened and that he hated himself "more for doing it." He also said that he would have to live "with that" for the rest of his life. He said that if he could "take it all back, " he would do so in a heartbeat.
Boleyn told T.V. the worst part about "it" was that he hurt T.V.'s feelings and he never meant to do that. T.V. asked Boleyn why he did it. Boleyn answered by saying he didn't know and that "it just kind of happened." He said he did not understand "why it happened, it just happened." Boleyn said that he hoped T.V. would forgive him. Boleyn told T.V. that he cared about him too much to ever do it again. T.V. asked Boleyn if he did it because he thought it would make T.V. feel good. Boleyn said, "I don't know, I don't know what I was thinking." Boleyn said that it had never happened before and that it would not happen again. T.V. eventually told Boleyn that his mom was coming home and quickly ended the phone call.
The next day, August 13, 2009, police arrested Boleyn. He was charged with five counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). The State alleged that these crimes occurred between July 27, 2007, and February 2009, when T.V. was between the ages of 8 and 10 years old.
Boleyn's case proceeded to trial. During opening statements, defense counsel stated that the evidence presented at trial would show that Boleyn did not sexually abuse T.V. and that Boleyn was not gay. Notably, during the State's opening statement, the prosecutor did not mention anything about Boleyn's sexual preference.
The State's evidence at trial consisted of the testimonies of Valentine and T.V., and the recording of the phone conversation between T.V. and Boleyn. T.V., who was 11 years old and in fifth grade at the time of trial, said that he had had a good relationship with Boleyn. He said that the two of them would play video games and watch television. T.V. said that Boleyn gave him a lot of attention.
Despite testifying about having a good relationship with Boleyn, T.V. said that Boleyn had touched his privates (i.e., his penis) in a "bad way." T.V. said that Boleyn would use his finger to "poke" T.V.'s penis and that Boleyn would also touch T.V.'s penis with his mouth. T.V. also said that Boleyn made him put his mouth on Boleyn's penis. T.V. said that he would tell Boleyn to stop but that Boleyn would say no and keep going.
T.V. said that the touching occurred while Boleyn was living with Valentine in the apartment in Wichita and while Boleyn was living in the house near Haven. T.V. said that when Boleyn was living in the apartment in Wichita, Boleyn would touch him once a week. T.V. said that the frequency of the touching increased to two to three times a week once Boleyn moved into the house. When asked to state how many times Boleyn had touched him, T.V. said that he did not ...