STATE OF KANSAS, Appellee, v. KENNETH BOYSAW, Appellant.
No. 112,834
Court of Appeals of Kansas
April 8, 2016
372 P.3d 1261 | 635
Petition for review filed May 6, 2016.
filed April 8, 2016.
Opinion
Corrinne E. Gunning, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., SCHROEDER, J., and BURGESS, S.J.
SCHROEDER, J.: On appeal, Kenneth Boysaw claims: (1) There was insufficient evidence to convict him
FACTS
Kenneth Boysaw was charged with aggravated indecent liberties with a child in violation of
At a pretrial hearing on the State‘s motion, the State requested admission of Boysaw‘s two prior sex-related convictions, one in 1979 and one in 1987. The district court found there was a “striking similarity” between the 1987 act and the currently charged act, but not the 1979 conviction, and denied admission of the 1979 conviction. The district court also found that the time elapsed since the 1987 conviction, the frequency of the prior acts, and any intervening events did not prohibit admission of the 1987 conviction. The district court agreed the conviction could be admitted to show propensity and for
“1. That the defendant, Kenneth Boysaw, was convicted of the crime of Sexual Assault of a Child on February 12, 1987.
“2. Specifically, the defendant, Kenneth Boysaw, on August 25th, 1986, a date when he was 36 years of age[,] touched B.J.H. in a sexual manner. B.J.H. was a female aged 9 years at the time of the touching. In the basement of his home, he removed B.J.H.‘s panties and touched her vagina with his hand in a rubbing motion. He did not penetrate her. Mr. Boysaw opened his pants exposing his penis and touched himself.”
At trial, G.E.M., who was 6 years old at the time she was improperly touched, testified she was riding an electric scooter at her grandfather‘s apartment. The scooter belonged to “her friend” (Boysaw). G.E.M. ran into a trashcan and received “a little scratch” on her left arm. After the accident, Boysaw asked G.E.M. if she wanted popcorn, and they went back to his apartment. G.E.M. testified that while they were sitting on the couch, Boysaw rubbed her “private part” with his whole hand.
G.E.M.‘s mother testified G.E.M. had been riding Boysaw‘s scooter and someone would check on G.E.M. every 5 or 10 minutes. When G.E.M.‘s mother couldn‘t find G.E.M., she began looking for her. G.E.M.‘s mother walked over to Boysaw‘s apartment and, through the open door, saw G.E.M.‘s pants and underwear around her ankles while G.E.M. sat between Boysaw‘s legs. She testified Boysaw‘s pants were unfastened, and
At the close of the State‘s case in chief, the district court judge advised the jury both the State and Boysaw were stipulating that Boysaw had been convicted of sexual assault of a child in 1987. The stipulation as read to the jury also provided a summary of the facts in the 1987 conviction, including the age of the victim and the manner of the assault.
The jury returned a guilty verdict. At sentencing, Boysaw‘s criminal history in the presentence investigation report (PSI) reflected a 1979 conviction for attempted indecent liberties and a 1987 Nebraska conviction substantially similar to indecent liberties with a child or aggravated indecent liberties with a child. The district court sentenced Boysaw to life imprisonment without the possibility of parole as a habitual sex offender. Boysaw timely appealed.
ANALYSIS
Sufficiency of the Evidence
Boysaw claims the evidence was insufficient to convict him of aggravated indecent liberties with a child. Specifically, he argues the State did not present direct or circumstantial evidence of his intent to arouse or satisfy his sexual desires.
When sufficiency of the evidence is challenged in a criminal case, the appellate court reviews all the evidence in the light most favorable to the prosecution. The conviction will be upheld if the court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt based on the evidence presented. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). The appellate court generally will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983); see State v. Naramore, 25 Kan. App. 2d 302, 322, 965 P.2d 211 (1998), rev. denied 266 Kan. 1114 (1998) (uncontroverted expert testimony that defendant physician‘s treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).
Aggravated indecent liberties with a child is a specific intent crime. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011). Pursuant to
A verdict may be supported by circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest offense can be based entirely on circumstantial evidence. 298 Kan. at 689. However, the circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
Based on the direct evidence, or inferring from the circumstantial evidence given regarding how G.E.M. was found with Boysaw, there was both direct and circumstantial evidence sufficient for the jury to find his intent was to arouse or satisfy his sexual desires. G.E.M.‘s mother testified
K.S.A. 2015 Supp. 60-455(d) Is Constitutional.
On appeal, Boysaw claims: ”
“Except as provided in
K.S.A. 60-445 , and amendments thereto, in a criminal action in which the defendant is accused of a sex offense . . . , evidence of the defendant‘s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” (Emphasis added.)
Determining a statute‘s constitutionality is a question of law subject to unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014). Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute‘s validity. 299 Kan. at 121. If there is any reasonable construction that would maintain the legislature‘s apparent intent, the court must interpret the statute in the way that makes it constitutional. 299 Kan. at 121.
Historical Perspective of Lustful Disposition and Propensity
Our Kansas Supreme Court in 1901 recognized that, generally, evidence of the commission of unrelated crimes is inadmissible in a criminal case as prejudicial. State v. Kirby, 62 Kan. 436, 444, 63 P. 752 (1901) (“The general rule is that the charge upon which a person is being tried cannot be supported by proof that he committed other offenses, even of a similar nature.“). However, in 1904, the Kansas Supreme Court recognized an exception to this general rule: “It is well settled that, in prosecutions for a single act forming a part of a course of illicit commerce between the sexes, it is permissible to show prior acts of the same character.” State v. Borchert, 68 Kan. 360, 361, 74 P. 1108 (1904).
In State v. Stitz, 111 Kan. 275, 276, 206 P. 910 (1922), overruled by State v. Taylor, 198 Kan. 290, 292, 424 P.2d 612 (1967), the Kansas Supreme Court expanded on Borchert:
“[I]n sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, and these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.” 111 Kan. at 276.
In a 1926 statutory rape case, the Kansas Supreme Court found: “In offenses of this class, proof of other acts of intercourse may be received to show the lustful disposition of the defendant.” State v. Bisagno, 121 Kan. 186, 188, 246 P. 1001 (1926).
The Kansas Supreme Court continued to apply the lustful disposition exception through the 1940s and 1950s. In State v. Funk, 154 Kan. 300, 302, 118 P.2d 562 (1941), testimony of two other girls was admissible
“Subject to
K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject toK.S.A. 60-445 and 60-448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
After the enactment of
In State v. Prine, 287 Kan. 713, 736, 200 P.3d 1 (2009) (Prine I), the Kansas Supreme Court determined evidence of prior sexual assaults on the defendant‘s daughter and half-sister was erroneously admitted to show intent, absence of mistake or accident, and plan in the defendant‘s trial for rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. In its opinion, the Kansas Supreme Court invited the legislature to amend
“Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under
K.S.A. 60-455 and, thus, that convictions of such crimes are especially vulnerable to successful attack on appeal. This is disturbing because the modern psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527-28 (4th ed.1994) (302.2-Pedophilia). And our legislature and our United States Supreme Court have decided that a diagnosis of pedophilia can be among the justifications for indefinite restriction of an offender‘s liberty to ensure the provision of treatment to him or her and the protection of others who could become victims. SeeK.S.A. 59-29a01 et seq. ; Kansas v. Crane, 534 U.S. 407, 409-10, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 356-60, 371, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (Kansas’ Sexually Violent Predator Act narrows the class of persons eligible for confinement to those who find it difficult, if not impossible, tocontrol their dangerousness.). It is at least ironic that propensity evidence can be part of the support for an indefinite civil commitment, but cannot be part of the support for an initial criminal conviction in a child sex crime prosecution. “Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make
K.S.A. 60-455 more workable in such cases, without doing unconstitutional violence to the rights of criminal defendants. It may be time for the legislature to examine the advisability of amendment toK.S.A. 60-455 or some other appropriate adjustment to the statutory scheme.” Prine I, 287 Kan. at 737.
The legislature promptly accepted the Kansas Supreme Court‘s invitation and amended
“(d) Except as provided in
K.S.A. 60-445 , and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, orK.S.A. 2015 Supp. 21-6104 , 21-6325; 21-6326 or 21-6419 through 21-6422, and amendments thereto, evidence of the defendant‘s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”K.S.A. 2015 Supp. 60-455 .
The Supreme Court examined the language of
Boysaw now argues
Due Process Under K.S.A. 2015 Supp. 60-455(d)
The Kansas Supreme Court acknowledged that
Our research reveals at least four federal circuit courts have directly held Rule 413 or 414 do not violate an accused‘s due process rights. See United States v. Julian, 427 F.3d 471, 486 (7th Cir. 2005), cert denied 546 U.S. 1220 (2006); United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001), cert denied 534 U.S. 1166 (2002); United States v. Mound, 149 F.3d 799, 800-01 (8th Cir. 1998), cert denied 525 U.S. 1089 (1999); United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir.), cert
In Enjady, the Tenth Circuit Court of Appeals addressed the constitutionality of Rule 413, and acknowledged:
“The due process arguments against the constitutionality of Rule 413 are that it prevents a fair trial, because of ‘settled usage‘-that the ban against propensity evidence has been honored by the courts for such a long time that it ‘must be taken to be due process of law,’ Hurtado v. California, 110 U.S. 516, 528, 4 S. Ct. 111, 117, 28 L. Ed. 232 (1884); because it creates a presumption of guilt that undermines the requirement that the prosecution must prove guilt beyond a reasonable doubt, see Estelle, 502 U.S. at 78, 112 S. Ct. at 485 (O‘Connor, J., concurring); and because if tendered to demonstrate the defendant‘s criminal disposition it licenses the jury to punish the defendant for past acts, eroding the presumption of innocence that is fundamental in criminal trials. See Sheft, supra, at 77-82.
“That the practice is ancient does not mean it is embodied in the Constitution. Many procedural practices-including evidentiary rules-that have long existed have been changed without being held unconstitutional. The enactment of the Federal Rules of Evidence and subsequent amendments are examples.” 134 F.3d at 1432.
The Enjady court held the admission of evidence pursuant to
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
K.S.A. 60-445 .
Though the language of
Boysaw‘s Argument
Boysaw submits decisions from Iowa and Missouri to support his claim the admission of propensity evidence under
“In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant‘s commission of another sexual abuse is admissible
and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.” State v. Cox, 781 N.W.2d 757, 761 (Iowa 2010) (quoting Iowa Code § 701.11[1]).
The Iowa court noted the general prohibition of propensity evidence was “firmly established in Iowa courts at common law.” Cox, 781 N.W.2d at 764. It also noted that while some jurisdictions developed exceptions for evidence of prior sexual abuse, Iowa has never admitted evidence of prior sexual offenses solely to prove the defendant‘s propensity:
“Based on Iowa‘s history and the legal reasoning for prohibiting admission of propensity evidence out of fundamental conceptions of fairness, we hold the Iowa Constitution prohibits admission of prior bad acts evidence based solely on general propensity. Such evidence may, however, be admitted as proof for any legitimate issues for which prior bad acts are relevant and necessary, including those listed in rule 5.404(b) and developed through Iowa case law.” Cox, 781 N.W.2d at 768.
Boysaw‘s reliance on Cox is misplaced. Unlike Iowa, prior to 1963 when
The 2009 amendments to
Boysaw also submits State v. Ellison, 239 S.W.3d 603 (Mo. 2007), from the Missouri Supreme Court. The Missouri Supreme Court invalidated a statutory provision allowing propensity evidence for sexual crimes against children when the victim is under 14 unless the prejudicial effect of the evidence outweighs its probative value. In Ellison, the Missouri Supreme Court noted:
“This Court has long maintained a general prohibition against the admission of evidence of prior crimes out of concern that ‘[e]vidence of uncharged crimes, when not properly related to the cause of trial, violates a defendant‘s right to be tried for the offense for which he is indicted.’ [State v. Burns, 978 S.W.2d 759, 760 (Mo. 1998)] (citing State v. Holbert, 416 S.W.2d 129, 132 [Mo. 1967]).” Ellison, 239 S.W.3d at 606.
This prohibition is based on
“That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county.”
Mo. Const. art. I, § 18(a) .
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
In keeping with a long line of cases, the Missouri Supreme Court held the statute allowing propensity evidence for sexual crimes against children was unconstitutional because the Missouri Constitution prohibited the admission of previous criminal acts to show propensity. Ellison, 239 S.W.3d at 607.
Boysaw‘s reliance on Ellison is also misplaced. Boysaw seems to argue this court should likewise interpret § 10 of the Kansas Constitution Bill of Rights as violating a defendant‘s right to “know the nature of the crime he is accused of.” Unlike the Missouri constitutional provision, § 10‘s right for an accused “to demand the nature and cause of the accusation against him” only guarantees a sufficiently specific indictment to inform the accused of the charge he or she must defend against. See State v. Wright, 259 Kan. 117, 125, 911 P.2d 166 (1996) (quoting State v. Ashton, 175 Kan. 164, 174-75, 262 P.2d 123 [1953]).
Though
Neither Cox nor Ellison is persuasive. Iowa‘s longstanding tradition of prohibiting evidence of prior sexual offenses solely to prove the defendant‘s propensity to commit the charged crime is irrelevant since Kansas courts routinely admitted propensity evidence in sexual crimes cases until the legislature enacted
Prejudicial Effect Versus Probative Value
Boysaw argues the prejudicial effect of his 1987 Nebraska conviction “vastly outweighed its limited probative value.” Our Supreme Court and this court have long recognized that a trial court has discretion to exclude relevant evidence when the court finds its probative value is outweighed by its potential for producing undue prejudice. See Lee, 266 Kan. at 814. An appellate court reviews any such determination for an abuse of discretion. See State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
In Prine II, the Kansas Supreme Court noted federal cases interpreting
In determining whether to admit evidence of prior acts, the Tenth Circuit Court of Appeals held the district court should consider:
“1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how likely it is such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.” Benally, 500 F.3d at 1090.
The Tenth Circuit also provided a list of factors a court may consider when analyzing the probative value of prior acts, including: “(1) the similarity of the prior acts and the charged acts, (2) the time lapse between the other acts and the charged acts, (3) the frequency of the prior acts, (4) the occurrence of intervening events, and (5) the need for evidence beyond the defendant‘s and alleged victim‘s testimony.” Benally, 500 F.3d at 1090-91. Boysaw cites a similar list of factors from LeMay, 260 F.3d at 1027-28, which were analyzed by a panel of this court in State v. Young, No. 102,121, 2013 WL 6839328 (Kan. App. 2013) (unpublished opinion), rev. denied 300 Kan. 1108 (2014). Though the wording of the factors differ slightly, the factors are substantively the same.
Boysaw claims the 1987 conviction lacks probative value and argues the evidence‘s inadmissibility, asserting:
- The ages of the victims are dissimilar;
- The prior conviction occurred 27 years ago;
- He has only one prior, similar conviction;
- He served 5 years in prison; and
- He began suffering health problems.
In contrast, the State responds the prior conviction is admissible since:
- The conviction in 1987 was a similar crime;
- The age of the girls was close-9 years old vs. 6 years old;
- The act of touching the two girls was nearly identical;
- The prior conviction is probative given Boysaw‘s theory of defense;
- The State tailored the stipulation to Boysaw‘s request; and
- The stipulation was limited to the basics.
Here, the district court carefully considered the facts of Boysaw‘s prior conviction along with the facts of this case and found:
- The prior crime was strikingly similar to the currently charged crime;
- The girl in the 1987 conviction was 9 years old when Boysaw touched her-G.E.M. was 6 years old when Boysaw touched her;
- Boysaw was accused of removing G.E.M.‘s panties and touching her vagina with his hand in a rubbing motion without penetrating her;
- G.E.M.‘s mother testified Boysaw‘s pants were unfastened and he had to adjust his penis through his clothing to refasten them; and
- Boysaw‘s 1987 conviction was for removing a girl‘s panties, touching her vagina with his hand in a rubbing motion without penetrating her while exposing his penis, and touching himself.
Further, the record reflects the district court carefully considered the admissibility of the prior conviction given the time lapse between the prior offense and the charged offense, the number of the prior acts, the occurrence of intervening events, and the need for evidence beyond the defendant‘s and alleged victim‘s testimonies. The district court determined none of these factors prohibited the admission of the 1987 conviction. The district court‘s decision to include evidence of Boysaw‘s 1987 Nebraska conviction was not arbitrary, fanciful, or unreasonable. Therefore, the district court did not abuse its discretion in finding evidence of the prior conviction was not unduly prejudicial, was probative, and was admissible.
Boysaw Is an Aggravated Habitual Sex Offender.
Boysaw claims the district court erred when it classified his 1987 Nebraska conviction as a sexually violent crime and sentenced him as an aggravated habitual sex
Boysaw argues
In 1987,
“[T]he intentional touching of the victim‘s sexual or intimate parts or the intentional touching of the victim‘s clothing covering the immediate area of the victim‘s sexual or intimate parts. . . . Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.”
At the time of Boysaw‘s conviction, Kansas defined aggravated indecent liberties with a child as “[a]ny 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” when the child is under 14 years old.
The Nebraska statute is substantially similar to
The aggravated habitual sex offender statute defines an aggravated habitual sex offender in
“[A] person who, on and after July 1, 2006: (A) Has been convicted in this state of a sexually violent crime, as described in subsection (c)(2)(A) through (c)(2)(J) or (c)(2)(L); and (B) prior to the conviction of the felony under subparagraph (A), has been convicted of two or more sexually violent crimes.”
Additionally,
The district court correctly found Boysaw was an aggravated habitual sex offender. The district court found Boysaw had two prior convictions for sexually violent crimes-attempted indecent liberties with a child in Kansas in 1979 and his 1987 Nebraska conviction. Pursuant to
The Aggravated Habitual Sex Offender Statute Is Constitutional.
Boysaw also argues the aggravated habitual sex offender statute,
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Inexplicably, neither Boysaw nor the State cite to Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). Alleyne extended Apprendi to apply where facts increased the mandatory minimum sentence as well. Alleyne, 133 S. Ct. at 2155. Based on the United States Supreme Court‘s holding in Alleyne, it appears Weber, Trautloff, and Conley are no longer controlling law.
Under Apprendi, prior convictions need not be submitted to a jury. 530 U.S. at 490; State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). The Alleyne court expressly declined to revisit this exception; it remains controlling law. 133 S. Ct. at 2160 n.1. Pursuant to
Since
No Apprendi Violation
Boysaw also argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it used his prior convictions to enhance his sentence without proving those convictions to a jury beyond a reasonable doubt, contrary to the United States Supreme Court‘s guidance in Apprendi, 530 U.S. at 490. Boysaw recognizes the Kansas Supreme Court rejected this argument in Ivory, 273 Kan. at 45-48, but includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011). The district court properly used Boysaw‘s criminal history to establish his sentence.
Affirmed.