State v. Razzaq

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,325

STATE OF KANSAS,
Appellee,

v.

MURAD RAZZAQ,
Appellant.

SYLLABUS BY THE COURT

1.
Under K.S.A. 2018 Supp. 22-3402(b), a defendant is not subject to prosecution if
the defendant is not brought to trial within 180 days after arraignment unless the delay
happens as a result of the application or fault of the defendant.

2.
Under judicially created safeguards for the rights of defendants applicable when
the State seeks to introduce evidence of other bad acts, a district court must weigh the
probative value of such evidence against the danger of unfair prejudice from it.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 21,
2016. Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed April 19, 2019.
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district
court is affirmed.

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.

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 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, 309 Kan. ___, ___ P.3d ___ (No. 112,834, 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

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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.

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 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.'"

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 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, 309 Kan. at
___, slip op. at 9. 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
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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.

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 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
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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, 309 Kan. at ___, slip op. at 14, 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
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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).

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 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.
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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.

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