439 P.3d 909
Kan.2019Background
- Kenneth Boysaw, previously convicted of child sexual offenses (KS plea in 1979; Nebraska conviction in 1987), was charged in 2013 with aggravated indecent liberties with a child (victim G.E.M., age 6).
- Facts at trial: victim sat on Boysaw's lap with underwear/pants down; she told a nurse Boysaw touched her vaginal area and that it hurt; mother saw Boysaw with pants partly unfastened and adjusting his penis after the child left his house.
- The State sought to admit Boysaw's 1987 Nebraska sexual-assault conviction under K.S.A. 60-455(d) (propensity evidence for sexual misconduct); the court excluded a 1979 Shawnee County conviction but admitted the Nebraska conviction after a probative-vs-prejudicial analysis; the Nebraska conviction was later stipulated to the jury.
- Defense theory: the contact was accidental or a medical/innocent check after the child’s scooter fall; challenged sufficiency of intent evidence and constitutionality of K.S.A. 60-455(d).
- Jury convicted Boysaw; he received life without parole under Kansas habitual/ aggravated sex-offender sentencing; Court of Appeals affirmed; Kansas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of intent to arouse/satisfy sexual desire | State: circumstantial evidence (victim testimony, underwear down, rubbing, defendant's adjustment of penis) proves intent | Boysaw: contact was inadvertent/accidental; State did not prove sexual intent | Held: Evidence (circumstantial and compelling) sufficient to prove intent beyond reasonable doubt |
| Federal due process challenge to K.S.A. 60-455(d) (admitting propensity evidence) | State: statute is constitutional; protections (weighing probative vs prejudicial) safeguard fairness | Boysaw: admission of propensity evidence violates fundamental fairness/due process | Held: Statute does not violate federal due process; historical practice in KS and procedural safeguards defeat claim |
| Kansas Constitution (sections 10 & 18) challenge to K.S.A. 60-455(d) | Boysaw: state constitutional rights require striking statute (barely argued) | State: no distinct state-ground showing; KS courts treat these provisions coextensively with federal law | Held: State-constitutional challenge waived for inadequate briefing; court declines to decide on merits |
| Admissibility balancing (probative vs prejudicial) of prior sexual-act evidence | Boysaw: Nebraska conviction is remote and unduly prejudicial | State: prior act highly similar (underwear removed, rubbing, exposing self) and proves propensity/absence of mistake | Held: Trial court did a careful Benally-style balancing; admitting the Nebraska conviction was not an abuse of discretion |
| Sentencing as aggravated habitual sex offender / jury-trial right | Boysaw: Nebraska conviction did not qualify; judicial factfinding (not jury) for sentence violates jury right | State: Court of Appeals correctly classified prior conviction; precedents uphold sentencing scheme | Held: Issues inadequately briefed or foreclosed by precedent; challenge abandoned/denied |
Key Cases Cited
- State v. Prine, 287 Kan. 713 (court discussed prior K.S.A. 60-455 application and legislative amendment)
- State v. Prine, 297 Kan. 460 (court upheld amended K.S.A. 60-455(d) against ex post facto challenges)
- Patterson v. New York, 432 U.S. 197 (framework for fundamental-due-process inquiry)
- Estelle v. McGuire, 502 U.S. 62 (noting Supreme Court reserved question whether propensity evidence violates due process)
- United States v. LeMay, 260 F.3d 1018 (holding admission of other acts evidence for sexual offenses does not violate due process when safeguards applied)
- United States v. Benally, 500 F.3d 1085 (factors for weighing probative value vs prejudice in sexual-propensity evidence)