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State v. Boysaw

Supreme Court of Kansas

April 19, 2019

State of Kansas, Appellee,
v.
Kenneth Boysaw, Appellant.

         SYLLABUS

         1. The State may rely on circumstantial evidence to meet its burden of proving that a defendant's conduct was motivated by the intent to arouse or satisfy the defendant's sexual desires.

         2. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before a statute may be stricken down it must clearly violate the defendant's rights secured by the constitution.

         3. A statute violates federal constitutional due process rights when it offends a principle of justice so rooted in the traditions and conscience of the people as to be ranked as fundamental. The primary guide in determining whether a principle in question is fundamental is historical practice.

         4. Kansas has a long history of allowing the admission of evidence tending to show a propensity to engage in sexual misconduct or illegal sexual activities.

         5. K.S.A. 2018 Supp. 60-455(d) does not offend any principle of justice so rooted in the traditions and conscience of the people of Kansas that it must be deemed fundamental.

         6. When a party does not preserve or adequately argue an issue on appeal, the issue is deemed waived.

         7. When a party seeks to introduce evidence showing that the defendant committed another act or offense of sexual misconduct, the material fact that the evidence is introduced to prove must be disputed and the probative value of the evidence must outweigh its potential for producing undue prejudice.

         8. In evaluating the probative value of evidence of other crimes or civil wrongs, the district court should consider, among other factors: how clearly the prior act was proved; how probative the evidence is of the material fact sought to be proved; how seriously disputed the material fact is; and whether the government can obtain any less prejudicial evidence.

         9. In evaluating the possible prejudicial effect of evidence of other crimes or civil wrongs, the district court should consider, among other factors: the likelihood that such evidence will contribute to an improperly based jury verdict; the extent to which such evidence may distract the jury from the central issues of the trial; and how time consuming it will be to prove the prior conduct.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 635, 372 P.3d 1261 (2016).

          Appeal from Sedgwick District Court; Stephen J. Ternes, judge.

          Corrine E. Gunning, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          Rosen, J.

         Kenneth Boysaw challenges his conviction and sentence for one count of aggravated indecent liberties with a child. Finding no error, we affirm his conviction.

         Facts

         The relevant history of this case began almost four decades ago. In 1979, Boysaw pleaded guilty in Shawnee County, Kansas, to attempted indecent liberties with a child. Then, in 1987, he was convicted in Nebraska of sexual assault on a nine-year-old neighbor girl, and the conviction was affirmed on appeal. State v. Boysaw, 228 Neb. 316, 422 N.W.2d 346 (1988).

         Boysaw subsequently moved to Wichita, Kansas. On April 21, 2013, six-year-old G.E.M. was visiting her grandfather's house with her mother, her mother's fiancé, and G.E.M.'s sister. Boysaw, a neighbor of the grandfather, was also present. The family had known Boysaw for about a year and considered him a friend, referring to him as "Uncle Kenny." Boysaw owned a scooter, and the girls spent part of the day riding around the block on it. G.E.M. was riding the scooter and collided with a trash can, resulting in a small scratch on her shoulder. Boysaw asked her if she wanted to have some popcorn and, when she said yes, invited her into his house.

         G.E.M.'s mother went to check on her, and, not finding her outside, walked over to Boysaw's house. The front door was open, and, seeing that her daughter was in the house, she started to walk in. From the doorway she realized that G.E.M. was sitting on Boysaw's lap, facing away from him. G.E.M.'s mother shouted for her fiancé, and G.E.M. stood up; G.E.M.'s mother then told her to go get the fiancé, and G.E.M. walked out the door. About 15 seconds after G.E.M. left, Boysaw stood up and fastened his pants. G.E.M.'s mother then called 911, and police showed up at the scene.

         G.E.M.'s mother took G.E.M. to a nearby hospital, where a nurse specializing in sexual assault victims examined the girl. G.E.M. told the nurse that Boysaw touched her "down here" and pointed to her vaginal area. G.E.M. also told the nurse that the encounter with Boysaw "hurt." The nurse conducted a full-body examination, including swabs for genetic material, and, except for a slight scratch, discovered no physical evidence of bodily injury or foreign biological fluids.

         On April 24, 2013, the State filed a complaint charging Boysaw with one count of aggravated indecent liberties with a child under K.S.A. 2012 Supp. 21-5506(b)(3)(A), (c)(3). On September 16, 2013, Boysaw filed a motion in limine asking that the State be barred from introducing any evidence of his criminal history or uncharged conduct. In response, the State filed a motion to admit evidence of prior conduct under K.S.A. 60-455 in order to show Boysaw's propensity to commit the charged offense. Following a hearing, the court granted the State's motion in part. The court specifically found that the probative value of the proffered evidence was not outweighed by the prejudicial effect of the evidence. The court allowed the State to introduce evidence of the Nebraska crime for the purposes of showing both propensity and motive or intent and absence of mistake. The court barred the State from introducing evidence of the Shawnee County conviction.

         Analysis

         Although the defense presented no witnesses, Boysaw's counsel asserted a theory that Boysaw was merely checking G.E.M. for injuries from the fall from the scooter and that any touching of her private parts was accidental. A jury found Boysaw guilty as charged, and the court sentenced him to a term of life without parole. The Court of Appeals affirmed the conviction in State v. Boysaw, 52 Kan.App.2d 635, 372 P.3d 1261 (2016).

         Sufficiency of the Evidence

         K.S.A. 2018 Supp. 21-5506(b)(3) defines aggravated indecent liberties with a child as "engaging in any of the following acts with a child who is under 14 years of age: (A) 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."

         The jury was instructed to find these elements, in particular, that Boysaw "engaged in lewd fondling or touching of GEM, with the intent to arouse or to satisfy the sexual desires of the defendant." Boysaw argues on appeal that the State failed to provide evidence showing that his conduct was intended to arouse or satisfy his sexual desires. He suggests that any contact with G.E.M.'s body could have been inadvertent or accidental, and the State never proved the contact was intentional and intended to satisfy his sexual desire.

         The evidence of intent was generally circumstantial. The State may rely on circumstantial evidence to meet its burden of proving that a defendant's conduct was motivated by the intent to arouse or satisfy the defendant's sexual ...


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