State v. Boysaw, 372 P.3d 1261

Background

Kenneth Boysaw was tried for aggravated indecent liberties with a child based on conduct in which a 6-year-old victim testified he rubbed her genital area while her pants were down; the victim’s mother observed the child with underwear around her ankles and Boysaw’s pants unfastened.
The State moved to admit Boysaw’s 1987 Nebraska conviction for sexual assault of a child under K.S.A. 2015 Supp. 60-455(d); the court excluded a 1979 conviction but admitted the 1987 conviction as a limited stipulation to show propensity.
The stipulation disclosed the 1987 conviction facts: Boysaw (then 36) removed a 9-year-old girl’s panties, rubbed her vagina with his hand (no penetration), exposed his penis, and touched himself.
The jury convicted Boysaw; at sentencing the court treated him as an aggravated habitual sex offender based on the 1979 Kansas conviction and the 1987 Nebraska conviction, imposing life without parole.
Boysaw appealed, raising: insufficiency of evidence, unconstitutionality and improper admission of K.S.A. 60-455(d) propensity evidence, and an Apprendi challenge to the habitual-sex-offender life sentence. The appellate court affirmed.

Issues

Issue	Boysaw's Argument	State's Argument	Held
Sufficiency of evidence to prove specific intent for aggravated indecent liberties	Evidence did not establish intent to arouse or satisfy sexual desire	Victim testimony and circumstantial facts supported intent	Affirmed — evidence (victim, mother, circumstances) sufficient to infer intent
Constitutionality of K.S.A. 2015 Supp. 60-455(d) permitting propensity evidence	Statute erodes presumption of innocence and denies due process under Kansas Constitution §§ 10 and 18	Statute mirrors federal Rules 413/414 and is subject to exclusionary safeguard (K.S.A. 60-445); thus constitutional	Affirmed — statute constitutional under Kansas law; district court has discretion to exclude unfairly prejudicial evidence
Prejudicial vs. probative value of admitting 1987 Nebraska conviction	Prior conviction’s age, differences in victim age, and intervening events made it unduly prejudicial and minimally probative	Conviction was strikingly similar in modus operandi and probative given defense; trial court balanced Benally/LeMay factors and limited stipulation	Affirmed — no abuse of discretion in admitting the 1987 conviction as probative and not unduly prejudicial
Use of prior convictions to impose life without parole under aggravated habitual sex offender statute (Apprendi challenge)	Using prior convictions to enhance sentence without jury finding violated Apprendi and Due Process	Prior convictions are an exception to Apprendi; Kansas precedent allows judicial consideration of prior convictions for sentencing	Affirmed — prior convictions properly used; Apprendi does not require jury proof of prior convictions; sentencing statute constitutional under controlling Kansas precedent

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact other than prior conviction that increases penalty beyond statutory maximum must be submitted to a jury)
State v. Prine, 287 Kan. 713 (2009) (discussion of prior sexual-offense evidence and invitation to legislative amendment)
State v. Prine, 297 Kan. 460 (2013) (Prine II) (analysis of K.S.A. 60-455(d) and its relationship to federal Rules 413/414)
United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (upholding Rule 413 against due process challenge and emphasizing Rule 403 safeguards)
United States v. Benally, 500 F.3d 1085 (10th Cir. 2007) (factors for balancing probative value and prejudicial risk of prior-act evidence)
State v. Lee, 266 Kan. 804 (1999) (Kansas court equates K.S.A. 60-445 with Federal Rule 403 exclusionary principles)
State v. Weber, 297 Kan. 805 (2013) (Kansas precedent affirming aggravated habitual sex offender sentencing practice)
State v. Conley, 287 Kan. 696 (2008) (Apprendi analysis distinguishing prior convictions from facts that must be jury-proven)