source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Joshua ROBERTSON, Appellant.
    No. 118,427
    Supreme Court of Kansas.
    Opinion filed April 19, 2019
    Joshua J. Robertson, appellant, was on the briefs pro se.
    Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Luckert, J.:

Joshua J. Robertson appeals from the district court's summary dismissal of his pro se motion, which he calls a combined "motion to correct illegal sentence" and "motion to dismiss for lack of jurisdiction." In the combined motion, he invokes K.S.A. 2018 Supp. 22-3504 as the basis for jurisdiction and requests his convictions be reversed. We affirm the summary denial of Robertson's motion because he cannot collaterally attack a conviction through a motion to correct an illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the district court lacked jurisdiction to convict. We also hold the district court lacked jurisdiction over Robertson's motion to dismiss. Finally, we decline to consider the motion as one filed under K.S.A. 2018 Supp. 60-1507 because such a motion is procedurally barred.

FACTS AND PROCEDURAL HISTORY

A jury convicted Robertson of first-degree murder, arson, and aggravated burglary for his role in the death of his girlfriend's mother, Patricia Self. This court affirmed his convictions and sentences on direct appeal. See State v. Robertson , 279 Kan. 291, 109 P.3d 1174 (2005).

Since then, Robertson has raised various challenges to his convictions and sentences. The district court referenced five other district court orders addressing Robertson's collateral attacks. Three of those attempts have reached this court. In one, Robertson vainly sought relief through a motion to correct illegal sentence filed under K.S.A. 22-3504. See State v. Robertson , 298 Kan. 342, 343-45, 312 P.3d 361 (2013). In the other two, Robertson either explicitly sought relief under K.S.A. 60-1507 or the district court liberally construed the motion as one seeking relief under that statute. See generally Robertson v. State , 288 Kan. 217, 201 P.3d 691 (2009) (considering and rejecting merits of motion explicitly filed under 60-1507); State v. Robertson , No. 112,714, 2017 WL 2062832, at *1-3 (Kan. 2017) (unpublished opinion) (considering and rejecting motion district court had treated as one filed under 60-1507).

In his current appeal, Robertson invokes K.S.A. 2018 Supp. 22-3504 as the sole basis for jurisdiction. He asserts his status as a sovereign and criticizes the way his name appears in the charging document. He further asserts the document charges a trust, not a person. According to him, these shortcomings cause a fatal defect in the charging document that deprived the district court of jurisdiction to convict him. Thus, he argues, his convictions should be reversed. He also contends Kansas statutes are commercial contracts, and he reserves his rights not to perform under the statutes.

The district court summarily denied relief. It held the motion lacked any legal or factual basis and consisted of "nothing more than a futile exercise in semantics and a poor attempt to fashion arguments out of thin air."

Robertson appealed. His appeal came directly to this court because he has been convicted of a homicide and sentenced to life in prison. See K.S.A. 2018 Supp. 22-3601(b)(3) ; see Robertson , 2017 WL 2062832, at *2 ("A ruling on a motion to correct an illegal sentence, where the sentence imposed for a homicide is imprisonment for life, is directly appealable to this court. K.S.A. 2016 Supp. 22-3601 [b][3].").

ANALYSIS

Robertson asks us to reverse his convictions and vacate his sentences. The State responds by arguing the district court lacked jurisdiction to grant the relief Robertson seeks. We first consider the State's jurisdiction argument because, if a district court lacks jurisdiction to correct an illegal sentence, an appellate court lacks jurisdiction to do so on appeal. See State v. McCoin , 278 Kan. 465, 468, 101 P.3d 1204 (2004).

Article 3, section 1 of the Kansas Constitution grants "[t]he judicial power of this state" to the "supreme court, district courts, and such other courts as are provided by law." Kan. Const. art. 3, § 1. But a court can exercise this power only when it has jurisdiction as granted by article 3 of the Kansas Constitution. Article 3, § 3 of the Kansas Constitution grants this court "such appellate jurisdiction as may be provided by law." Kan. Const. art. 3, § 3. And article 3, § 6 (b) grants district courts "such jurisdiction in their respective districts as may be provided by law." Kan. Const. art. 3, § 6 (b). See generally State v. Dunn , 304 Kan. 773, 811, 375 P.3d 332 (2016). The mechanism for the law to provide jurisdiction is through statutes. See State v. Dupree , 304 Kan. 43, 53, 371 P.3d 862 (2016) (addressing appellate jurisdiction); State v. Valladarez , 288 Kan. 671, 675, 206 P.3d 879 (2009) (addressing subject matter jurisdiction of district judges).

Generally, under Kansas statutes, a district court has jurisdiction over a criminal case until it enters judgment and the time for appeal has expired. Unless a specific statute grants jurisdiction beyond that point in the proceedings, a district court lacks jurisdiction to consider postconviction motions. See State v. Hemphill , 286 Kan. 583, 588, 186 P.3d 777 (2008). The statutes that extend a district court's jurisdiction past the time for an appeal include K.S.A. 2018 Supp. 60-1507 and K.S.A. 2018 Supp. 22-3504. Robertson has used both of these statutes as the basis for past collateral attacks on his convictions and sentences. For this latest complaint, he relies exclusively on K.S.A. 2018 Supp. 22-3504(1), which allows a court to correct an illegal sentence at any time.

We hold Robertson's challenge to his convictions cannot be supported by a motion under K.S.A. 2018 Supp. 22-3504. Then, liberally construing his motion to dismiss as divisible from his motion to correct illegal sentence, we hold there is no independent basis for jurisdiction over that motion. And we determine he cannot seek dismissal under K.S.A. 2018 Supp. 60-1507.

K.S.A. 2018 Supp. 22-3504

K.S.A. 2018 Supp. 22-3504(1) allows a defendant to raise an illegal sentence issue at any time, except in some circumstances. See State v. Neal , 292 Kan. 625, 630, 258 P.3d 365 (2011). But see State v. Conley , 287 Kan. 696, 698, 197 P.3d 837 (2008) (holding motion to correct illegal sentence "may not be used to breathe new life into an appellate issue previously adversely determined"), abrogated on other grounds by State v. Soto , 299 Kan. 102, 121-22, 322 P.3d 334 (2014) ; see also Robertson , 298 Kan. at 344-45, 312 P.3d 361 ("We will not permit his new motion to correct an illegal sentence to be used as a vehicle to 'breathe new life' into an issue previously determined against Robertson on multiple occasions."). To invoke relief under K.S.A. 2018 Supp. 22-3504(1), Robertson must establish that his sentence is illegal. A sentence is illegal if it is (1) imposed by a court without jurisdiction, (2) does not conform to the applicable statute either in character or punishment, or (3) is ambiguous about the time and manner in which it is to be served. See K.S.A. 2018 Supp. 21-3504(3) ; State v. Horton , 308 Kan. 757, 759, 423 P.3d 548 (2018).

Robertson contends his sentence is illegal, but he attacks his convictions, arguing the charging instrument was defective because it named him as an individual, not a sovereign, and used an incorrect version of his name. We have repeatedly emphasized a motion to correct an illegal sentence is not an appropriate vehicle to reverse a conviction because of a defective charging document. E.g., State v. Trotter , 296 Kan. 898, 902, 295 P.3d 1039 (2013) ; State v. Deal , 286 Kan. 528, 530, 186 P.3d 735 (2008). "The relief available under the statute is correction of a sentence, rather than reversal of a conviction." State v. Nash , 281 Kan. 600, 601, 133 P.3d 836 (2006) ; see also Horton , 308 Kan. at 761, 423 P.3d 548 (citing Nash ).

Robertson argues a different rule applies when the district court lacked jurisdiction to adjudicate the conviction and impose a sentence. But Robertson has cited no decision that holds a defendant may use K.S.A. 2018 Supp. 22-3504(1) to challenge a personal jurisdiction flaw arising from a defective complaint. In arguing the district court lacked personal jurisdiction over him, he fails to discuss the general rule that a "want of jurisdiction of the person or thing may be waived." State v. Grimsley , 15 Kan. App. 2d 441, 445, 808 P.2d 1387 (1991). In contrast, "[t]he substantive jurisdiction of the court, its power to adjudicate, cannot be created by waiver or consent." 15 Kan. App. 2d at 445, 808 P.2d 1387. The case cited by Robinson- State v. Breedlove , 285 Kan. 1006, 179 P.3d 1115 (2008) -discusses a motion to correct illegal sentence in the context of substantive-also known as subject matter-jurisdiction.

In Breedlove , the defendant was a minor at the time of his offenses. Because of his age, his case should have begun in juvenile court unless an exception allowed the State to bypass juvenile court. The State conceded no exception applied. The Breedlove court held the failure to begin the case in juvenile court deprived the district court of subject matter jurisdiction. The court noted the general rule that a party cannot waive subject matter jurisdiction and held "a court without jurisdiction cannot convict or sentence because any judgment would be void." 285 Kan. at 1014, 179 P.3d 1115. Thus, we reversed Breedlove's convictions. 285 Kan. at 1017, 179 P.3d 1115.

The Breedlove court also noted other cases in which convictions had been reversed because the district court lacked subject matter jurisdiction. In these cases, convictions were reversed because either an issue about the defendant's competency had been raised but not resolved or a jury convicted the defendant of a crime neither charged nor a lesser included offense of the charged crime. 285 Kan. at 1010, 179 P.3d 1115 (citing State v. Johnson , 283 Kan. 649, 652, 156 P.3d 596 [2007] [conviction for uncharged crime]; State v. Davis , 281 Kan. 169, 174, 130 P.3d 69, cert. denied 549 U.S. 823, 127 S.Ct. 158, 166 L.Ed.2d 40 [2006] [competency]; State v. Chatmon , 234 Kan. 197, 205, 671 P.2d 531 [1983] [conviction for uncharged crime], abrogated on other grounds by State v. Gunby , 282 Kan. 39, 144 P.3d 647 [2006] ).

No Kansas decision cited by Robertson or that we have found supports his jurisdictional argument. But our caselaw does make clear that Robertson cannot succeed because he attacks a defect in the complaint, arguing the court lacked jurisdiction because the complaint incorrectly listed his name and improperly identified him as a trust, not an individual. In other words, he does not deny he was the actor who allegedly performed the criminal conduct and charging and obtaining custody over the alleged criminal actor is the object of criminal personal jurisdiction. See United States v. Benabe , 654 F.3d 753, 767 (7th Cir. 2011) ("Regardless of an individual's claimed status of descent, be it as a 'sovereign citizen,' a 'secured-party creditor,' or a 'flesh-and-blood human being,' that person is not beyond the jurisdiction of the courts."). Instead, he complains about the way the State identified him in the complaint. Yet defects in a complaint do not deprive a court of jurisdiction. See Dunn , 304 Kan. at 811, 375 P.3d 332. Our decision in Trotter , 296 Kan. 898, 295 P.3d 1039, reflects this point.

There, Christopher M. Trotter attacked his sentence based on an alleged charging document deficiency. We contrasted such a claim, which we have repeatedly rejected, from one in which a sentence follows a district court's failure to apply the statutory requirement of suspending a proceeding to determine competency if the district court has found reason to believe the defendant was incompetent. 296 Kan. at 903-04, 295 P.3d 1039. But Trotter's case did not involve a statutory requirement to suspend proceedings. Trotter raised a fairly typical challenge to the sufficiency of the complaint. We denied relief, reiterating, "Defective complaint claims are not properly raised in a motion to correct an illegal sentence under K.S.A. 22-3504." 296 Kan. at 904, 295 P.3d 1039 (citing State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 [2012] ).

Recently, we restated these rules in Horton , 308 Kan. 757, 423 P.3d 548. Damon Horton moved to correct an illegal sentence in an attempt to attack the district court's earlier evidentiary finding that he had violated his probation. We revisited the familiar rule that a motion to correct an illegal sentence is not a vehicle for reversing a conviction. 308 Kan. at 761, 423 P.3d 548 (citing Nash , 281 Kan. at 602, 133 P.3d 836 ). "In other words, an erroneous conviction does not render the ensuing sentence illegal if that sentence is appropriate for the crime for which the defendant was convicted. In that instance, any relief must emanate from an attack on the improper conviction, not on the proper sentence." 308 Kan. at 761, 423 P.3d 548.

This review of our caselaw makes clear that only a case fitting within a narrow exception will support granting a motion to correct an illegal sentence that attacks the underlying conviction rather than sentence. Such narrow exceptions apply when a Kansas statutory scheme has deprived the district court of the power to act in a criminal matter. E.g., Breedlove , 285 Kan. at 1014, 179 P.3d 1115 (criminal proceedings involving a juvenile defendant); Davis , 281 Kan. at 174, 130 P.3d 69 (competency challenge). That is not Robertson's case.

For these reasons, we conclude Robertson's attempt to obtain relief through a motion to correct an illegal sentence fails. Even if we assume that Robertson has correctly alleged that the criminal complaint was defective because it named him as a trust, not an individual, and used an incorrect version of his name, a motion to correct an illegal sentence is not an appropriate vehicle to reverse his convictions. If Robertson wishes to pursue relief from the underlying convictions, he must find another avenue through which to do so. See Horton , 308 Kan. at 761, 423 P.3d 548.

Motion to Dismiss and K.S.A. 2018 Supp. 60-1507

Robertson also labels his motion as a "motion to dismiss." But he cites no statutory basis for us to have jurisdiction over a motion to dismiss besides K.S.A. 2018 Supp. 22-3505, and we hold none exists. That said, at times we have liberally construed a postconviction pro se motion seeking relief from a conviction as a motion under K.S.A. 2018 Supp. 60-1507. See, e.g., State v. Swisher , 281 Kan. 447, 449, 132 P.3d 1274 (2006). But doing so here does not get Robertson out of the procedural woods. He faces two other procedural obstacles.

First, Robertson had earlier pursued relief under 60-1507, and that statute is clear that a district court is not "required to entertain a second or successive motion." K.S.A. 2018 Supp. 60-1507(c) ; see Trotter , 296 Kan. at 904, 295 P.3d 1039. Robertson has argued no exceptional circumstances warranting a successive motion. Nor do we see any. Robertson could have raised these arguments in an earlier proceeding. He did not. The district court did not have to entertain Robertson's motions had he raised them under K.S.A. 2018 Supp. 60-1507.

Second, Robertson's motions were filed outside the one-year period for seeking 60-1507 relief and Robertson does not argue manifest injustice would support extending this limitation. See K.S.A. 2018 Supp. 60-1507(f)(1), (2). Thus, Robertson would be procedurally barred from relief even if we convert it to a motion under K.S.A. 2018 Supp. 60-1507. See Trotter , 296 Kan. at 904-05, 295 P.3d 1039.

CONCLUSION

Robertson has failed to establish that his sentence was illegal. And even if we liberally construe his motion to reverse his conviction as a 60-1507 motion, he cannot overcome the procedural hurdles of the motion being successive and being filed outside the statutory time limit. We, therefore, hold that the district court did not err in summarily dismissing Robertson's motion.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Murad RAZZAQ, Appellant.
    No. 114,325
    Supreme Court of Kansas.
    Opinion filed April 19, 2019
    Corrine E. Gunning, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant, and Murad Razzaq, appellant, was on a supplemental brief pro se.
    Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Rosen, J.:

Murad Razzaq challenges his conviction and sentence for one count of aggravated indecent liberties with a child. Finding no error, we affirm. This case presents issues in common with State v. Boysaw , 52 Kan.App.2d 635, 372 P.3d 1261 (2016), this day decided), slip op. at 9 : whether K.S.A. 2018 Supp. 60-455(d) constitutionally allows evidence showing the propensity of a defendant to commit crimes of a sexual nature.

FACTS

In 2005, Razzaq was convicted and sentenced in Missouri for one felony count of statutory sodomy and one misdemeanor count of child molestation. The victims were two girls under the age of 12. While still subject to the jurisdiction of the Missouri Department of Corrections, he spent time with his mother in Derby, Kansas.

At around 2 in the morning of May 27, 2011, the night before B.D.'s 15th birthday, B.D.'s mother noticed that her daughter was not in the girl's bedroom. The mother woke up her husband, T.D., and the two discovered that a window in B.D.'s bedroom was unlocked.

The parents started to call B.D.'s friends, including Murad Razzaq's brother, and eventually learned of a couple of addresses where she might be found. By early afternoon, the parents had checked out one of the addresses, located in a mobile home park, but it turned out to be incorrect. They called 911 and reported that their daughter was missing but that they were proceeding to an address where they thought they would find her and wanted police assistance. They then drove to that address, where they found the front door ajar and saw B.D. standing in the living room. Razzaq, who was 27 years old at the time, was sitting on a couch, and two other men were sitting across from them. The father directed the mother to escort B.D. out to the car. The mother returned to the house, where her husband asked Razzaq if there had been sexual contact between Razzaq and B.D. Razzaq said, "Yes, I've had sexual relations with your daughter."

The police subsequently arrived and, after talking with different people at the scene, took Razzaq into custody. Initially reluctant to speak with detectives about whether sexual intercourse had occurred-saying that it was "none of their business"-B.D. eventually confirmed that she and Razzaq had engaged in sexual relations. Razzaq was taken to a local hospital, where, pursuant to a search warrant, clothing, swabs, and hair samples were collected from him. Testing later showed that swabs from Razzaq's penis had major contribution from B.D. and minor contribution from Razzaq.

B.D. was also taken to the hospital, where she cooperated with a nurse who conducted a physical examination of her. In response to the nurse's questions, B.D. said that she had been "intimate" with Razzaq, which she clarified to mean that she had sexual intercourse with him. She informed the nurse that she had sneaked out of her house through her bedroom window and that Razzaq picked her up and drove her to his mother's house at about 1 that morning. She said that she and Razzaq had sex at several places around the home. Testifying at trial, B.D. confirmed this account: she called Razzaq from her bedroom and then left through a bedroom window to meet him. She testified that she was under the influence of alcohol and drugs and that she and Razzaq engaged in sexual intercourse several times.

ANALYSIS

On June 1, 2011, the State filed a complaint charging Razzaq under K.S.A. 21-3504(a)(1) with one count of aggravated indecent liberties with a child who was 14 or more years of age but less than 16 years of age. On March 7, 2014, the State filed a motion seeking admission of evidence under K.S.A. 2013 Supp. 60-455(d). Razzaq countered with a motion asking the court to bar the presentation of any prior-acts evidence. Following a hearing, the court granted the State's motion, finding that the evidence was material and had probative value.

A jury found Razzaq guilty of aggravated indecent liberties. The court sentenced him to a midrange sentence of 176 months. Razzaq filed a timely notice of appeal. The Court of Appeals affirmed the conviction in State v. Razzaq, No. 114,325, 2016 WL 6139148 (Kan. App. 2016) (unpublished opinion). This court granted review on all issues.

Probative Value of Prior Convictions Versus Prejudicial Effect

After a witness testified that he had determined that Razzaq had been convicted of two sex crimes in Missouri, the court interjected a lengthy explanation to the jury. The court gave the statutory definition of the Missouri crimes:

" 'A person commits the crime of statutory sodomy in the first degree if he has devious sexual intercourse with another person who is less than 14 years old.' The crime of child molestation, second degree, is defined by statutes in the state of Missouri as follows: 'A person commits the crime of child molestation in the second degree if he or she subjects another person, who is less than 17 years of age, to sexual contact.' "

The court went on to state that the evidence could be considered for its bearing on Razzaq's disposition or propensity to commit a crime such as the one charged in the case at bar. The court informed the jury that it was the jury's prerogative to decide how much weight to give the evidence. The court cautioned the jury that Razzaq was not on trial for other crimes and it should not convict him based solely on the evidence of the other crimes.

Razzaq argues on appeal that the district court abused its discretion when it allowed the State to introduce, through a witness, the fact of his prior convictions in Missouri for sex crimes. This issue is similar to an issue raised in Boysaw , 372 P.3d at 1266-67. The discussion below incorporates but does not repeat all aspects of the Boysaw analysis.

This court reviews for abuse of discretion a district court determination that the probative value of evidence outweighs its potential for producing undue prejudice. A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Bowen , 299 Kan. 339, 348-49, 323 P.3d 853 (2014).

As noted in Boysaw , this court has created safeguards for defendants when the State seeks to introduce evidence of other bad acts. These safeguards resemble those of Federal Rule of Evidence 403, and they require a district court to weigh the probative value of such evidence against the danger of unfair prejudice from it. See, e.g., State v. Gunby , 282 Kan. 39, 48, 144 P.3d 647 (2006).

No single test exists for weighing probative value against prejudicial effect. The Tenth Circuit has suggested certain factors to be considered, such as the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of the prior acts, the presence or lack of intervening events, and the need for evidence beyond the testimony of the defendant and alleged victim. See, e.g., United States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998).

In State v. Prine , 297 Kan. 460, 478, 303 P.3d 662 (2013), this court referred favorably to United States v. Benally , 500 F.3d 1085, 1090-91 (10th Cir. 2007), which incorporated other tests into the weighing test for propensity evidence in sex crimes. Citing prior decisions, the Benally court recommended considering specific factors in analyzing the two elements to be weighed.

In evaluating the probative value, 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. In considering the possible prejudicial effect, the district court should consider: 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. Benally , 500 F.3d at 1090-91.

In the present case, Razzaq's attorney argued several reasons why he considered the evidence either weakly probative or strongly prejudicial: consent was not an issue in his case; the victims in the Missouri case were girls six years of age and the facts of the cases were therefore dissimilar; and simply reading the fact of conviction and the relevant Missouri statutes would give the jury little or misleading information about Razzaq's propensity to commit such crimes.

The district court made two explicit findings: the Missouri convictions were relevant, and the Missouri convictions had probative value in helping to prove that Razzaq committed the crime of aggravated indecent liberties in the case at bar. The court found that the elements of the Missouri crimes were sufficiently similar to those being charged in Kansas to give the evidence probative value. The court noted the balancing test at the beginning of its explanation of its decision and admitted the evidence. Although the district court did not explicitly determine that the probative value outweighed the prejudicial effect, this court may presume that the district court made all the necessary factual findings to support its judgment in the absence of an objection to inadequate findings. State v. Neighbors , 299 Kan. 234, 240, 328 P.3d 1081 (2014). We conclude that the district court implicitly rejected Razzaq's argument of prejudice when it denied his motion.

The Benally factors to be evaluated for prejudicial effect include 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. 500 F.3d at 1090-91.

In the present case, it was unlikely that the evidence contributed to a jury verdict based on improper evidence or law. The State presented a day and a half of witness testimony tending to prove guilt. The evidence of the Missouri convictions made up a small part of the State's case, and it was presented in just a few transcript lines. The court instructed the jury not to base its verdict solely on that evidence.

Although the district court would not have known at the time of its ruling the defense that Razzaq would raise if he chose to testify, his testimony gave the propensity evidence greater probative value. Razzaq apparently thought he could prove that he had not done what B.D. and the biological evidence said he did. He testified at trial that he never had sexual relations with B.D. He testified that he repeatedly told T.D. that he did not have sex with B.D. and finally said that he did only when T.D. became so verbally abusive that Razzaq feared he might become the victim of violence. Razzaq also testified that, in his opinion, a great conspiracy had taken place among police, laboratory workers, and other witnesses to place him in criminal jeopardy. He further testified that it was likely that B.D. made up her allegations against him because she was "transferring" her parents' and the police accusations. These claims of a conspiracy bolstered the case for admitting the evidence of the Missouri convictions. The evidence made it less likely that everyone involved in the process was engaged in a great conspiracy and made it more likely that Razzaq was somebody who liked to have sex with underage girls and tried to get away with it.

The district court implicitly weighed the probative value of the evidence of the Missouri convictions against the danger of undue prejudice and did not abuse its discretion in admitting the evidence.

The Constitutionality of K.S.A. 2018 Supp. 60-455(d) Under the Kansas Constitution

This issue is much the same as the one addressed in Boysaw . As did Boysaw, Razzaq conflates federal and Kansas due process law. The Boysaw analysis is not repeated here: the history of "lustful disposition" evidence in Kansas suggests that K.S.A. 2018 Supp. 60-455(d) does not violate the Bill of Rights contained in the Kansas Constitution. Razzaq offers this court no explanation of why the analytical pattern for determining the constitutionality of K.S.A. 2018 Supp. 60-455(d) under the Kansas Constitution should differ from that under the United States Constitution. As we explain in Boysaw , 372 P.3d at 1269-70, the historical development of prior-crimes evidence in Kansas leads us to conclude that K.S.A. 2018 Supp. 60-455(d) satisfies the due process requirements of the federal Constitution. To the extent that Razzaq asserts that other states have found state constitutional violations in their bad-acts evidentiary statutes, he fails to show that those state constitutions have similar wording, origins, or histories of construction as the Kansas Constitution. If the Kansas Constitution calls for a more strict review than or an analysis otherwise at odds with the federal Constitution, Razzaq does not present this court with support for such a proposition. As argued in this case, we find no violation of the Kansas Constitution.

Asserted Speedy Trial Violations

With the permission of the Court of Appeals, Razzaq filed a supplemental brief in which he raised a speedy trial issue, and the State filed a supplemental reply brief in response. The Court of Appeals held that Razzaq failed to demonstrate error. This court granted Razzaq's petition for review, including an argument that the Court of Appeals inadequately addressed the issue raised in the supplemental brief.

The violation of a defendant's right to a speedy trial is a question of law subject to de novo review. State v. Sievers , 299 Kan. 305, 307, 323 P.3d 170 (2014).

The district court held a hearing and then engaged in a detailed breakdown of the delays in bringing Razzaq to trial. The district court detailed Razzaq's numerous claims of ineffective assistance of counsel, the dismissals of counsel, and continuances granted to bring new counsel up to speed. The court concluded that 1,222 days elapsed between arraignment and trial. Of those, 1,062 days were attributed to the defendant, leaving 160 days counted against the State. Razzaq was in the custody of Missouri for a significant portion of the time, and he obtained an appearance bond when his Missouri term expired. The 160 days was well within the statutory 180-day requirement of K.S.A. 2018 Supp. 22-3402(b).

In his brief, Razzaq argues that the speedy trial statute contains mandatory language: in the event that a person charged with a crime is not brought to trial within 180 days after arraignment, "such person shall be entitled to be discharged from further liability to be tried for the crime charged ...." K.S.A. 2018 Supp. 22-3402(b). He ignores the language of the same sentence, "unless the delay shall happen as a result of the application or fault of the defendant ...."

The Court of Appeals deemed the argument waived because Razzaq did not provide citations to the record identifying errors, and it is this conclusion that he raises on review. The Court of Appeals went on to note, however:

"The statute clearly provides any error by the district court in charging the delay to Razzaq may not be used by him to support dismissal of the charges. Here, the delays were attributable to Razzaq's direct requests-continuances required as he went through seven attorneys between arraignment and trial-and he cannot now use his requested continuances during the 3-1/2 years between arraignment and trial to support dismissal of the charges. Razzaq's speedy trial claim is without merit." Razzaq , 2016 WL 6139148, at *5.

Neither in his briefing nor in his petition for review does Razzaq identify any error in the district court's calculations of days attributable to the parties, and he does not identify any particular delays that were improperly attributed to him or any particular days that were counted incorrectly. Razzaq makes only bald assertions that the statutory time was exceeded and that he did not consent to any of the delays. A review of the records shows, however, that he was present at hearings on replacement of counsel and that the delays were necessitated by his and his attorneys' requests.

The district court and the Court of Appeals correctly determined that the record does not support Razzaq's speedy trial claims.

Use of Prior Convictions to Enhance Sentences

Finally, Razzaq asks this court to reconsider our holding in State v. Ivory , 273 Kan. 44, 45-47, 41 P.3d 781 (2002) (right to a factual determination by a jury does not apply when sentence based in part on defendant's criminal history score). As in Boysaw , we decline to do so here.

CONCLUSION

Razzaq fails to convince us that any error occurred in the conduct of his trial that requires reversal. We therefore affirm the judgment of the Court of Appeals and the judgment of the district court.


text:
    STATE of Kansas, Appellee, v. Kenneth BOYSAW, Appellant.
    No. 112,834
    Supreme Court of Kansas.
    Opinion filed April 19, 2019.
    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.
   The opinion of the court was delivered by 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 desires. State v. Clark , 298 Kan. 843, 850, 317 P.3d 776 (2014).

Boysaw's contention notwithstanding, the record contained substantial evidence from which a rational juror could have concluded beyond a reasonable doubt that Boysaw was seeking to arouse or to satisfy his sexual desires. G.E.M. testified at the trial. She told the jury that she was sitting on the couch facing away from Boysaw, and he "was messing with me." He "was doing something bad to me." She explained that this meant he was "touching where he shouldn't be touching," which was her "private part," the place "[w]here we go potty at." He was "rubbing" her potty with his whole hand.

G.E.M.'s mother testified at trial that G.E.M. was sitting on Boysaw's lap, with her pants and underwear down around her ankles. His hands were positioned on G.E.M.'s waist, one hand on each hip. When G.E.M. stood up, her mother noticed that Boysaw's pants were undone and she could see his undershorts. When he stood up, she observed him adjust his penis through his undershorts so that he could fasten his pants.

When G.E.M. had suffered an injury to her shoulder, it was reasonable for the jury to conclude that her sitting on Boysaw's lap with her pants and underwear pulled down would serve no purpose other than to provide him with sexual gratification. "Rubbing" her genitals would be inconsistent with incidental contact. G.E.M.'s mother's testimony that she saw Boysaw having to "adjust" his penis before he could fasten his pants reinforces the circumstantial evidence that he was engaging in conduct that he found sexually arousing. The evidence may have been circumstantial, but it was compelling. And it was far more than sufficient to prove the elements of the crime.

Constitutionality of K.S.A. 2018 Supp. 60-455(d)

K.S.A. 2018 Supp. 60-455 governs the admissibility of evidence of other crimes or civil wrongs. Subsection (a) states that evidence showing that a person committed a crime or civil wrong on one occasion "is inadmissible to prove such person's 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."

This was the core of the law in effect in 2009, when this court issued State v. Prine , 287 Kan. 713, 200 P.3d 1 (2009) ( Prine I ). In Prine I , the State introduced evidence that the defendant had engaged in sexual abuse of the victim's half-sister. The Prine I court held that such evidence was not admissible under K.S.A. 60-455 because it tended to show propensity to commit the crime at issue and it did not satisfy other valid statutory grounds for admitting prior bad acts evidence. The court suggested, however, that such evidence could be valuable to a jury and that the Legislature might provide an exception to the exclusion of propensity evidence:

"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 to K.S.A. 60-455 or some other appropriate adjustment to the statutory scheme." 287 Kan. at 737, 200 P.3d 1.

Prine I was issued in January 2009. That same year, the Legislature amended the statute to include a new section (d), which governs prior acts of sexual misconduct:

"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, 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." L. 2009, ch. 103, § 12.

The effect of this provision is to allow a jury to consider similar prior conduct for the purpose of determining whether a defendant has a propensity to engage in the conduct charged in the case on trial.

Prine was retried, and the evidence was admitted under the newly enacted paragraph of K.S.A. 60-455. He again appealed, and this court addressed federal constitutional claims in State v. Prine , 297 Kan. 460, 303 P.3d 662 (2013) (Prine II ). The court upheld the conviction over claims that the newly amended statute violated federal ex post facto prohibitions. The court examined the conditions that could render a procedural change unconstitutional and concluded that new section (d) did not attach criminality to any act previously done that was innocent when it was done, did not aggravate any crime theretofore committed, did not provide greater punishment than was prescribed at the time the crime was committed, and did not alter the degree or lessen the quantity or measure of the proof necessary for conviction when the crime was committed. 297 Kan. at 470-71, 303 P.3d 662 (citing Carmell v. Texas , 529 U.S. 513, 543, 120 S.Ct. 1620, 146 L.Ed.2d 577 [2000] ; Thompson v. Missouri , 171 U.S. 380, 381, 18 S.Ct. 922, 43 L.Ed. 204 [1898] ). The court noted that the fact that a change in the law may work to the defendant's disadvantage does not, by itself, make the amendment unconstitutional. 297 Kan. at 471, 303 P.3d 662.

In his pretrial motion in the present case, Boysaw argued that admission of the propensity evidence would violate his right to a fair trial guaranteed by the United States Constitution. He also mentioned, in passing, that such evidence would violate state constitutional protections. Although the appellate briefing interweaves the federal and state constitutional arguments, we choose to address the objections under the two constitutions separately. Our review on both grounds is de novo. See State v. Limon , 280 Kan. 275, 283, 122 P.3d 22 (2005). 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. See, e.g., State v. Hill , 189 Kan. 403, 407, 369 P.2d 365 (1962).

A. Federal Constitutional Due Process

To establish a federal due process violation, a party has the burden of demonstrating that the challenged statute or rule violates those " 'fundamental conceptions of justice which lie at the base of our civil and political institutions ... and which define "the community's sense of fair play and decency." ' " Dowling v. United States , 493 U.S. 342, 352-53, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990) ; United States v. Lovasco , 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

The Supreme Court has not decided and has expressly reserved the question of whether a state law admitting propensity evidence violates the federal Due Process Clause. Estelle v. McGuire , 502 U.S. 62, 75 n.5, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Most state and federal courts that have considered the question have found no violation of essential federal constitutional rights in the admission of propensity evidence. See, e.g., People v. Falsetta , 21 Cal. 4th 903, 915-22, 89 Cal.Rptr.2d 847, 986 P.2d 182, (1999) (state statute admitting propensity evidence of sex crimes does not violate due process); People v. Donoho , 204 Ill. 2d 159, 179-82, 788 N.E.2d 707, 273 Ill.Dec. 116 (2003) (state statute admitting propensity evidence of sex crimes constitutional under the federal and Illinois Constitutions); State v. Williams , 357 Or. 1, 346 P.3d 455 (2015) (no federal due process violation in admitting propensity evidence when procedural safeguards screen out evidence of relatively little probative and relatively great prejudicial danger); Belcher v. State , 474 S.W.3d 840 (Tex. App. 2015) (procedural safeguards suffice to satisfy constitutional requirements).

Federal Rule of Evidence 403 permits a court to exclude relevant evidence if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Federal Rule 413 broadly allows the admission of evidence of other sexual assaults by the defendant when the defendant is accused of sexual assault. In matters of child molestation, Federal Rule 414(a) similarly allows, for consideration of any matter to which it is relevant, evidence that the defendant committed any other child molestation.

These rules have consistently withstood due process challenges. See, e.g., United States v. Schaffer , 851 F.3d 166, 179-80 (2nd Cir. 2017) (admission of evidence of prior sexual assaults on minors does not violate defendant's due process rights in prosecution for coercing minor to engage in illegal sexual activity: weighing of probative value against unfair prejudice provides adequate safeguard); Leavitt v. Arave , 383 F.3d 809, 829 (9th Cir. 2004), cert. denied 545 U.S. 1105, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005) (admission of other acts evidence renders trial fundamentally unfair when evidence "goes only to character and 'there are no permissible inferences the jury may draw' from it"; such evidence does not in itself necessarily render trial so fundamentally unfair as to deny due process); United States v. LeMay , 260 F.3d 1018, 1026-27 (9th Cir. 2001) (admission of defendant's other instances of molestation does not violate his due process rights; "[a]s long as the protections of Rule 403 remain in place to ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safeguarded"); United States v. Castillo , 140 F.3d 874, 881-83 (10th Cir. 1998) (Rule 414 does not violate due process because of Rule 403 safeguards and because history of admitting sexual propensity evidence suggests its exclusion is not so rooted in legal custom as to be regarded fundamental); United States v. Enjady , 134 F.3d 1427, 1433 (10th Cir. 1998) (Rule 413 does not on its face violate the due process rights of a defendant because of built-in safeguards).

Keeping in mind the widespread acceptance of special rules allowing propensity evidence in prosecutions for sex crimes, we look to whether the Kansas statute in particular violates constitutional fairness requirements.

A statute violates due process when it offends a principle of justice so rooted in the traditions and conscience of the people that it must be deemed fundamental. See Patterson v. New York , 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The primary guide in determining whether a principle in question is fundamental is "historical practice." Montana v. Egelhoff , 518 U.S. 37, 43-44, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996).

Kansas has a long history of allowing propensity evidence in these kinds of cases.

In State v. Borchert , 68 Kan. 360, 361, 74 P. 1108 (1904), the court held that evidence showing "a course of illicit commerce between the sexes" is an exception to the rule that a prior conduct is not admissible for the purpose of enabling the jury to infer that, because the defendant "had committed one crime he would be likely to commit another." 68 Kan. at 361, 74 P. 1108. The court qualified that statement by arguing that such evidence essentially goes to prove the commission of the crime at issue, when many sex crimes lack concrete evidence that a crime was committed, and the propensity evidence therefore is more demonstrative and necessary than propensity evidence in other kinds of prosecutions. 68 Kan. at 362, 74 P. 1108.

In State v. Waldron , 118 Kan. 641, 649, 236 P. 855 (1925), the court allowed the admission of letters demonstrating the defendant

"had the mind of a vulgar libertine, so far removed from the mental and moral standards required of a minister of the gospel as light is from darkness, and of course, the letters tended to discredit his asseverations of innocence by revealing with damning clarity his grossly indelicate attitude towards young women of his congregation with whom his ministerial calling gave him special and trusted social contacts."

In State v. Funk , 154 Kan. 300, 302, 118 P.2d 562 (1941), the defendant was convicted of forcible rape after he induced his victim to go for a ride in his car. This court found no error in the admission of the testimony of other young women who stated that the defendant followed them and attempted to induce them to get into his car. The evidence was "designed to show his lustful disposition." 154 Kan. at 301, 118 P.2d 562.

The common law history of admitting propensity evidence in sex crime prosecutions suggests that the principle of excluding such evidence is not so imbedded in the Kansas legal tradition as to take on a constitutional dimension. As the Tenth Circuit noted in Castillo ,

"[T]he history of evidentiary rules regarding a criminal defendant's sexual propensities is ambiguous at best, particularly with regard to sexual abuse of children. The existence of this ambiguity does not leave us uncertain of the constitutional result, however; rather, it favors the government. As the Supreme Court stated in Egelhoff , [518 U.S. at 47, 116 S.Ct. 2013 ], 'It is not the [government] which bears the burden of demonstrating that its rule is "deeply rooted," but rather [the defendant] who must show that the principle of procedure violated by the rule (and allegedly required by due process) is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." ' 140 F.3d at 881-82.

It thus was not common law or constitutional considerations that led to a bar on admitting sexual propensity evidence; it was legislative action. In 1963, the Legislature placed limitations on the purposes for which evidence of prior misconduct could be used when it enacted K.S.A. 60-455. L. 1963, ch. 303. See State v. Taylor , 198 Kan. 290, 292, 424 P.2d 612 (1967) ( K.S.A. 60-455 made "lustful disposition" evidence inadmissible, notwithstanding its admissibility at common law.). In 2009, the Legislature reversed its earlier ban on propensity evidence in sex crime prosecutions. What the Legislature gave, the Legislature may take away.

Boysaw urges this court to follow the lead of two other states, Iowa and Missouri, which have held that the use of propensity evidence violated constitutional fair-trial mandates based on long-standing state bars to the admission of such evidence. See State v. Cox , 781 N.W.2d 757 (Iowa 2010) ; State v. Ellison , 239 S.W.3d 603, 607-08 (Mo. 2007). In Cox , the Iowa Supreme Court traced a different history of the use of propensity evidence in that state. It therefore serves as an inapt precedent for this court. Likewise, the Missouri Supreme Court has construed its constitution to prohibit propensity evidence because such evidence violates a defendant's right to know the nature of the crime of which the defendant is accused. Kansas does not have a similar history of locating a bar to propensity evidence in its constitution.

The history of the use of propensity evidence in Kansas, coupled with the procedural safeguard of weighing the probative against the prejudicial effect of the evidence, leads us to conclude that 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 this state that it may be deemed fundamental. K.S.A. 2018 Supp. 60-455(d) does not violate federal constitutional protections.

B. Kansas Constitution Bill of Rights

Boysaw also couched his argument in terms of the Kansas Constitution. Although he urges this court to rely on our state Constitution to strike down K.S.A. 2018 Supp. 60-455(d), he does not explain what distinguishes analysis under our state constitutional provisions from analysis under similar federal constitutional provisions. When arguing his cause in district court, he made only passing mention of the Kansas Constitution without elaborating on what sections he considered to be offended by the propensity evidence statute.

On appeal, he directs our attention to sections 10 and 18 of the Kansas Constitution Bill of Rights.

Section 10 of the Kansas Constitution Bill of Rights states:

"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."

Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law."

Boysaw points to nothing in the history of the Kansas Constitution or in our caselaw that would suggest a different analytic framework for questions of fundamental fairness, due process, or double jeopardy. He points to analysis of the Iowa Constitution in Cox , but Cox applied federal rules for construing the dimensions of due process. In short, Boysaw does not articulate grounds explaining why a different result should follow if state, rather than federal, guidelines are to govern the constitutionality of propensity evidence.

Boysaw did not give the state constitutional argument sufficient substance for the district court to consider it, and, on appeal, he conflates the state argument with the federal one. When a party does not preserve or adequately brief an issue, we deem it waived. See, e.g., State v. Kingsley , 299 Kan. 896, 900, 326 P.3d 1083 (2014) ; see also State v. Thomas , 288 Kan. 157, 159-60, 199 P.3d 1265 (2009) (merely mentioning constitutional concepts without elaborating on them and changing the constitutional theory on appeal precludes effective appellate review). We therefore do not decide this question at this time.

As possible considerations for any future argument on this issue, we note that the Kansas Constitution Bill of Rights, including sections 10 and 18, was largely modeled on the Ohio Constitution. Brown v. Wichita State University , 219 Kan. 2, 12, 547 P.2d 1015 (1976) ; In re Oberst , 133 Kan. 364, 367, 299 P. 959 (1931). Ohio has a statute that resembles K.S.A. 2018 Supp. 60-455 in allowing evidence of prior misconduct for the purpose of showing motive, intent, absence of mistake, or scheme or plan. See Ohio Rev. Code Ann. § 2945.59. Ohio does not, however, have a statutory provision allowing such evidence strictly for the purpose of demonstrating propensity. See State v. Williams , 134 Ohio St. 3d 521, 524-26, 983 N.E.2d 1278 (2012) ; State v. Hart , 118 N.E.3d 454 (Ohio App. 2018). Furthermore, our cursory research fails to disclose any common law exception in Ohio allowing evidence akin to "lustful disposition" for purposes of establishing propensity to commit sex crimes.

We also note that section 18 of the Kansas Constitution Bill of Rights did not create new rights but merely recognized systems of laws established prior to the adoption of the Constitution. Brown , 219 Kan. at 10, 547 P.2d 1015.

Historically, our courts have analyzed sections 10 and 18 as coextensive with their federal counterparts. See, e.g., State v. Wilkinson , 269 Kan. 603, 608-09, 9 P.3d 1 (2000) (applying same analysis to federal due process challenge and section 18 challenge); Murphy v. Nelson , 260 Kan. 589, 597-98, 921 P.2d 1225 (1996) (court declines to construe section 18 differently from federal constitutional due process protections and applies federal law to section 18 challenge); State v. Morris , 255 Kan. 964, 981, 880 P.2d 1244 (1994) (provisions of section 10"grant no greater protection against self-incrimination than is afforded by the Fifth Amendment to the United States Constitution"); State v. Busse , 231 Kan. 108, 110, 642 P.2d 972 (1982) ; State v. Haze , 218 Kan. 60, 62, 542 P.2d 720 (1975) ; Hill , 189 Kan. at 411-12, 369 P.2d 365 ; State v. Blanchette , 35 Kan. App. 2d 686, 699, 134 P.3d 19 (2006) (caselaw demonstrates "the protections given under both constitutions with regard to confronting witnesses are the same").

Any future challenge to the admission of propensity evidence under K.S.A. 2018 Supp. 60-455(d) that is based on state constitutional provisions will need to explain why this court should depart from its long history of coextensive analysis of rights under the two constitutions.

Probative Value of Prior Conviction Versus Prejudicial Effect

At a separate, pretrial motions hearing, the district court took up the question of the admissibility of the evidence of the two previous convictions. The court engaged in an extensive comparison of the earlier crimes with the allegations made in the present case. The court then analyzed whether the evidence was more probative than prejudicial and concluded that the Shawnee County conviction lacked sufficient probative value to be admitted but that the Nebraska conviction was similar enough to be helpful to the jury in determining whether Boysaw was guilty.

After the completion of witness testimony, the district court read a stipulation to the jury:

"The following facts have been agreed to and stipulated to by the parties and are to be considered by you as true: One, that the defendant, Kenneth Boysaw, was convicted of the crime of sexual assault of a child on February 12, 1987.
"Two, specifically the defendant, Kenneth Boysaw, on August 25th, 1986, a date when he was 36 years of age, touched a child by the initials of BJH, in a sexual manner. BJH was a female, age nine years at the time of the touching. In the basement of his home he removed BJH'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.
"And the stipulation was made on December 12, 2013, by counsel and Mr. Boysaw. Again those are to be considered as proven and true facts by the jury."

Boysaw argues on appeal that the district court improperly concluded that the prejudicial effect of the stipulation did not outweigh its probative value.

This court reviews for abuse of discretion a district court determination that the probative value of evidence outweighs its potential for producing undue prejudice. A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Bowen , 299 Kan. 339, 348-49, 323 P.3d 853 (2014).

Paragraph (d) of K.S.A. 2018 Supp. 60-455 permits admission of evidence that the defendant committed another act or offense of sexual misconduct for the bearing that the evidence has "on any matter to which it is relevant and probative." The language is expansive and places little limitation on admitting such evidence.

This court has established safeguards limiting the introduction of K.S.A. 60-455 evidence: 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. See, e.g., State v. Gunby , 282 Kan. 39, 48, 144 P.3d 647 (2006). This rule closely resembles Federal Rule of Evidence 403, which states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

No Kansas statute expressly provides for the exclusion of unduly prejudicial evidence in the same way that Rule 403 does, and K.S.A. 2018 Supp. 60-455(d) allows the admission of any propensity evidence that is relevant and probative. See State v. Moyer , 306 Kan. 342, 365, 410 P.3d 71 (2017) ("as long as it is 'relevant and probative,' " propensity evidence under K.S.A. 2013 Supp. 60-455 [d] is admissible in sexual abuse cases). The only limitation similar to Rule 403 is contained in K.S.A. 60-445, which allows discretionary exclusion if the trial judge finds that the probative value of the evidence is substantially outweighed by the risk that the evidence will "unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered." This limitation is less restrictive than the federal rule and addresses only surprise.

The plain statutory language of K.S.A. 2018 Supp. 60-455(d) appears to allow such evidence without requiring a weighing of probity versus prejudice. A similar reading of the federal rules allowing propensity evidence has been raised. See Judicial Conference of the United States, Report of the Judicial Conference on the Admission of Character Evidence in Certain Sexual Misconduct Cases , 159 F.R.D. 51, 53 (1995) (noting that the advisory committee believed the above position to be "arguable").

Nevertheless, without specifically deciding the issue, this court has continued to require a weighing of probative value versus prejudicial effect. See, e.g., State v. Dern , 303 Kan. 384, 394, 362 P.3d 566 (2015) ; State v. Dean , 298 Kan. 1023, 1033, 324 P.3d 1023 (2014) ; State v. Remmert , 298 Kan. 621, 628, 316 P.3d 154 (2014), disapproved of on other grounds by State v. Jolly , 301 Kan. 313, 342 P.3d 935 (2015) ; State v. Spear , 297 Kan. 780, 789, 304 P.3d 1246 (2013) (trial judge must weigh probative value of propensity evidence against threat of undue prejudice).

This position is consistent with the position taken by federal courts, although the federal analysis is grounded in the language of the rules, while the Kansas weighing rule is a judicial construct. See, e.g., United States v. Meacham , 115 F.3d 1488, 1495 (10th Cir. 1997). It should be noted that such a weighing process has been an integral part of the analysis of those courts that have upheld the admissibility of propensity evidence, as the exclusion of unduly prejudicial prior acts evidence has been deemed a protection of due process rights. See, e.g., United States v. LeMay , 260 F.3d 1018, 1026 (9th Cir. 2001) ("As long as the protections of [the balancing test] remain in place to ensure that potentially devastating evidence of little probative value will not reach the jury, the right to a fair trial remains adequately safeguarded."); State v. Mound , 149 F.3d 799, 801 (8th Cir. 1998) ; Robisheaux v. State , 483 S.W.3d 205, 212 (Tex. App. 2016).

No set test exists for weighing probative value against prejudicial effect. The Tenth Circuit has suggested certain factors to be considered, such as the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of the prior acts, the presence or lack of intervening events, and the need for evidence beyond the testimony of the defendant and alleged victim. See, e.g., United States v. Guardia , 135 F.3d 1326, 1331 (10th Cir. 1998).

In Prine II , 297 Kan. at 478, 303 P.3d 662, this court referred favorably to United States v. Benally , 500 F.3d 1085, 1090-91 (10th Cir. 2007), which incorporated other tests into the weighing test for propensity evidence in sex crimes. Citing prior decisions, the Benally court recommended considering specific factors in analyzing the two elements to be weighed.

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. 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. Benally , 500 F.3d at 1090-91.

In this case, the district court undertook a careful and meticulous examination of the factors to be weighed, giving both parties additional time to supplement their arguments. Far from committing error, the district court provided a model for conducting analysis of the admissibility of K.S.A. 2018 Supp. 60-455(d) evidence. It listed factors on both sides of the equation and explained in detail why it was admitting the evidence over Boysaw's objection.

Boysaw complains that the evidence of his Nebraska conviction was weakly probative and strongly prejudicial. Keeping in mind that the standard of review is abuse of discretion, we deem the probative value of the Nebraska conviction to be great.

The prior act was proved by Boysaw's stipulation to his conviction. The Nebraska incident involved a girl nine years of age; the current case involved a girl six years of age. In each incident, the girl's underwear was removed or pulled down, and in each incident, Boysaw rubbed the girl's vaginas with his hand. In each incident, Boysaw opened up his pants. The Nebraska conviction therefore suggested both a propensity to engage in certain conduct with a particular class of victims and a lack of mistake or inadvertence in the conduct toward G.E.M.

To be sure, Boysaw points out factors that somewhat undermine the value of the evidence: the Nebraska conviction was entered 26 years before the current case, and, in the intervening years, Boysaw spent time in prison and experienced a decline in health. Nevertheless the probative evidence was material and valuable, and we cannot conclude that no reasonable person would have weighed the evidence in the manner that the district court did or that the admission of the evidence was improper as a matter of law. The district court did not abuse its discretion in admitting the evidence.

Sentencing Challenges

Boysaw complains that the district court improperly sentenced him as an aggravated habitual sex offender when his Nebraska conviction did not qualify as a sexually violent crime in Kansas. The Court of Appeals analyzed this issue at length, concluding that the Nebraska conviction was for a sexually violent crime. Boysaw , 52 Kan. App. 2d at 651-52, 372 P.3d 1261. In his petition for review, Boysaw conceded that he had misconstrued which Nebraska statute was at issue but, without further argument, nevertheless urged this court to reverse.

When a party fails to support an argument with relevant authority or show why the argument is sound despite a lack of supporting authority or in the face of contrary authority, this court deems the argument waived and abandoned for failure to brief the issue. State v. Tappendick , 306 Kan. 1054, Syl. ¶ 2, 400 P.3d 180 (2017). Here, the reasoning of the Court of Appeals was sound and Boysaw provided no authority or analysis to challenge it. We therefore conclude that he abandoned this argument and there are no grounds for reversal on this issue.

Boysaw, finally, asks us to decide that K.S.A. 2018 Supp. 21-6626, which imposes mandatory life sentences without the possibility of parole on aggravated sex offenders, violates the federal constitutional right to trial by a jury because a judge, not a jury, decides whether a defendant has been convicted of two or more sexually violent crimes. This court has repeatedly upheld the predecessor statute, K.S.A. 2009 Supp. 21-4642, against similar constitutional challenges. See State v. Weber , 297 Kan. 805, 818, 304 P.3d 1262 (2013) (setting out cases finding no constitutional error in statute). He also asks us to reconsider our holding in State v. Ivory , 273 Kan. 44, 45-47, 41 P.3d 781 (2002) (right to a factual determination by a jury does not apply when sentence based in part on defendant's criminal history score). Boysaw offers no new grounds for reconsidering those holdings, and we decline to find any constitutional violation.

CONCLUSION

We find no error in the conduct of the trial, and we are not persuaded that the statute allowing the introduction of evidence of propensity to commit sex crimes is unconstitutional. We therefore affirm the judgment of the Court of Appeals and the judgment of the district court.