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
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.
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.
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.
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.
a party does not preserve or adequately argue an issue on
appeal, the issue is deemed waived.
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
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.
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.
of the judgment of the Court of Appeals in 52 Kan.App.2d 635,
372 P.3d 1261 (2016).
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.
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.
Boysaw challenges his conviction and sentence for one count
of aggravated indecent liberties with a child. Finding no
error, we affirm his conviction.
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
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.
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.
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
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.
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).
of the Evidence
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."
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
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