Boyer v. Belleque

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW LEE BOYER,  No. 10-35574

Petitioner-Appellant,

v.  D.C. No.

3:06-cv-00035-PK

BRIAN BELLEQUE,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, Senior District Judge, Presiding

Argued and Submitted

June 8, 2011—Portland, Oregon

Filed October 28, 2011

Before: Raymond C. Fisher, Ronald M. Gould, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Gould

19615

BOYER v. BELLEQUE 19617

COUNSEL

Tonia L. Moro, Assistant Federal Public Defender, Medford,

Oregon, for the petitioner-appellant.

19618 BOYER v. BELLEQUE

John R. Kroger, Attorney General, Mary H. Williams, Solici-

tor General, and David B. Thompson, Assistant Attorney

General, Salem, Oregon, for the defendant-appellee.

OPINION

GOULD, Circuit Judge:

Oregon state prisoner Andrew Lee Boyer appeals the dis-

trict court’s denial of his 28 U.S.C. § 2254 habeas corpus peti-

tion. He argues that the evidence presented was

constitutionally insufficient for a rational jury to find him

guilty of attempted aggravated murder beyond a reasonable

doubt. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253(a). Our review of the evidence convinces us that the

prosecution presented evidence of specific intent to kill, as

that element has been defined by Oregon state law and inter-

preted by the state appellate court. Accordingly, the state

court’s determination that there was sufficient evidence of

Boyer’s intent to support a conviction for attempted aggra-

vated murder was an objectively reasonable application of

Jackson v. Virginia, 443 U.S. 307 (1979). We affirm.

I. Factual and Procedural History

In 1997, a jury convicted Boyer of more than twenty counts

of sexual offenses, including sexual abuse, sodomy, and

attempted sodomy. Boyer was also convicted of two counts of

attempted aggravated murder, based on the theory that, in the

course of and in furtherance of the crimes of sexual abuse and

sodomy, he attempted to cause the death of two individuals

“by performing anal sodomy on the said [individuals], know-

ing that he . . . was infected with [AIDS1], a fatal disease that

1

The acquired immune deficiency syndrome (“AIDS”) is the final stage

of human immunodeficiency virus (“HIV”) infection. See AIDS,

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001620/ (last visited

October 20, 2011).

BOYER v. BELLEQUE 19619

is transmitted to another person by the transfer of body fluids

such as semen.”2 On appeal, Boyer challenges only the denial

of habeas relief on the attempted aggravated murder convic-

tions.

Because Boyer claims that the evidence presented at trial

was constitutionally insufficient to support his attempted

aggravated murder convictions, we review the evidence pre-

sented on those counts in detail. As is required of us on

habeas review when assessing the sufficiency of the evidence

of conviction, we view the evidence in the light most favor-

able to the prosecution. See Jackson, 443 U.S. at 326 (“[A]

federal habeas corpus court faced with a record of historical

facts that supports conflicting inferences must presume—even

if it does not affirmatively appear in the record—that the trier

of fact resolved any such conflicts in favor of the prosecution,

and must defer to that resolution.”); see also Juan H. v. Allen,

408 F.3d 1262, 1266 n.1 (9th Cir. 2005).

A. Evidence Presented at Trial

At trial, the State presented nineteen witnesses over several

days. The evidence established that Boyer sexually abused

four victims, through touching and oral sex, and that he also

anally penetrated two of them. His victims were friends with

one another, attended special education programs at school,

and were incapable of consenting to sexual conduct due to age

or mental defect. At the time of the abuse in 1996, victim B.B.

was twelve years old, victims R.K. and G.T. were thirteen

years old, and victim R.M. was an eighteen-year-old with the

mental capacity of a first or second grader. Boyer was in his

mid-thirties. Medical professionals testified about “grooming”

techniques often employed by sexual abusers to gain vulnera-

ble victims likely to succumb to the abuser’s advances, and

2

AIDS is not transmitted via the transfer of bodily fluids. Instead, HIV

can be spread through bodily fluids, such as blood and semen, and later

cause AIDS. See AIDS, supra n.1.

19620 BOYER v. BELLEQUE

testimony showed that Boyer used such techniques in

approaching his victims.

1. The Police Investigation

A transcript of Detective Baltzell’s initial interview of

Boyer, when Boyer was arrested, was admitted in evidence.

Boyer then admitted to engaging in sexual activity with R.K.,

B.B., and R.M. but said it was consensual. Boyer denied hav-

ing sexual intercourse with B.B. because “the kid was too lit-

tle, I wouldn’t even think about it.” Boyer also said that he

had AIDS and “[t]hat’s why I’m particularly careful, would

not sodomize anybody . . . .”

At trial, Detective Baltzell testified that he interviewed all

four victims. Victim B.B. was reticent at first to tell Detective

Baltzell of the abuse he had experienced but said that Boyer

had anally penetrated B.B. without B.B.’s permission. B.B.

also said that, after the anal intercourse occurred, Boyer ejac-

ulated by masturbation and used a towel to clean up the

semen. B.B. did not know if Boyer had ejaculated inside of

him. Victim R.M. told Detective Baltzell that Boyer had

threatened to kill him when R.M. said he wanted to tell the

police about the abuse. After first denying that anal penetra-

tion had occurred, R.M. disclosed in an interview about two

weeks before trial that he and Boyer had anal intercourse. On

cross-examination, Detective Baltzell said that none of the

victims claimed that Boyer ejaculated inside of them.

2. Evidence related to victim R.M.

Victim R.M. testified that Boyer performed oral sex on him

many times and anally raped him on one occasion. R.M. said

that he considered Boyer a friend and that R.M. would visit

Boyer when bored. R.M. met Boyer through fellow victim

R.K. Boyer offered R.M. marijuana and alcohol, but R.M.

declined. R.M. went to Boyer’s home, where Boyer showed

him magazines, took R.M.’s pants off, and performed oral sex

BOYER v. BELLEQUE 19621

on him. Boyer threatened to kill R.M., and later R.M.’s par-

ents, if R.M. told anyone about the abuse. R.M. estimated that

he visited Boyer’s home about fifty times and that Boyer per-

formed oral sex on him about twenty times in total. R.M. tes-

tified that, on one occasion when he and R.K. were spending

the night at Boyer’s apartment, Boyer anally penetrated R.M.

R.M. described the encounter as a rape. R.M. told Boyer to

“stop, please” and said “ouch” loudly enough to wake up R.K.

R.M. testified that the anal penetration was painful, and that

Boyer did not ejaculate while penetrating R.M. but instead

ejaculated into the bed afterwards. Boyer did not wear a con-

dom.

Though his account of the timing of the incident differed

from that given by R.M., R.K. testified that, while sleeping at

Boyer’s home, he was awakened by a person he believed was

R.M. saying “owe [sic], stop” and that R.M. later told R.K.

that R.M. had been raped. Dr. George Suckow, a physician

specializing in psychiatry who did a comprehensive psychiat-

ric assessment on R.M., also testified, noting that R.M. said

he had been involved, as the passive recipient, in anal inter-

course and oral sex with Boyer. Victim G.T. also testified that

Boyer had bragged about raping R.M.3

3. Evidence related to victim B.B.

Victim B.B. testified that Boyer sexually abused him on

two occasions. The first time, B.B. skipped school with fellow

victim R.K., and they went to Boyer’s home. Boyer gave

them lunch and cigarettes. They watched television and

looked at magazines about “[d]ifferent types of sex.” B.B.,

Boyer, and R.K. masturbated, and all three went into the bed-

room. Boyer unsuccessfully tried to have B.B. anally pene-

trate Boyer, and then Boyer performed oral and anal sex on

B.B. B.B. testified that Boyer did not ask his permission to

3

Victim G.T. testified that, in regard to R.M., Boyer stated, “I butt

fucked him pretty good. It was pretty good.”

19622 BOYER v. BELLEQUE

engage in anal sex, that he did not know if Boyer ejaculated

into him, and that there were no stains in B.B.’s underpants

afterwards. B.B. also testified that the anal penetration was

painful. R.K. testified that he witnessed Boyer performing

oral and anal sex on B.B. B.B. testified that he went back to

Boyer’s apartment with R.K. a day or two later for the second

and last time and that Boyer touched B.B.’s penis. R.K.’s tes-

timony did not mention this incident.

Dr. Michael Lukschu testified that he conducted an exami-

nation and evaluation of B.B. for suspected child abuse and

that B.B. disclosed that Boyer had penetrated his anus.

4. Testimony by Boyer’s treating physician

At trial, Dr. David Gilbert, Boyer’s treating physician since

January 1992, testified about Boyer’s medical history and

about HIV and AIDS generally. Dr. Gilbert stated that Boyer

was first diagnosed with HIV around 1986 and that he had

AIDS by July of 1993. Dr. Gilbert testified that in 1993,

Boyer’s prognosis was that he most likely had two more years

to live. Boyer stopped complying with his drug treatment in

July of 1996 and had a high blood viral count in early Decem-

ber of 1996.

Dr. Gilbert stated that HIV may be passed through bodily

secretions, that there is a higher risk of transmission when the

viral count in the blood is higher, and that “the two major

modes of transmission are sexual activity and contaminated

blood.” Dr. Gilbert said that Boyer was given information that

his viral count would go up if he did not take his medication,

but Dr. Gilbert could not remember whether he told Boyer

that the risk of infecting others would also be higher. He

stated that he counseled Boyer in January of 1992 “regarding

the need to use condoms and practice safe sex” and gave him

some pamphlets on it. Dr. Gilbert testified that safe sex

involved the use of condoms and that he would expect Boyer

to know the dangers of unprotected anal intercourse.

BOYER v. BELLEQUE 19623

When asked whether a person who was the recipient of anal

sex by an HIV-positive person had a high risk of contracting

the disease, Dr. Gilbert stated that “for each sexual exposure,

there is somewhere between a one [in] a 100 and one in a

1,000 chance of acquiring the disease through that sort of

activity.” He testified that although the risk of infection would

be lower during anal sex if no ejaculation occurred, “prior to

ejaculation, there are secretions that come out of the penis that

do have HIV in it [sic]. So you would be decreasing the

amount, but not eliminating the risk entirely.” He also stated

that oral sex was a low-risk activity, and that he had provided

such general information to Boyer before the sexual assaults.

5. Other evidence

Boyer’s journal was admitted into evidence. In parts of it

from 1995 that were read aloud to the jury, Boyer acknowl-

edged that he had been HIV-positive for ten years with full-

blown AIDS for two and a half years. Boyer wrote that he

hoped to volunteer time to other people with HIV, that he was

scared when his T-cell count went down to fifty-one, and that

“he [felt] an urge to get things taken care of.” In his journal,

Boyer also commented on the high number of deaths from

AIDS as reflected in materials he viewed while visiting the

Cascade AIDS project. Boyer wrote, “you have to try not to

think about the deaths so much or you’ll never get anything

done in life,” and “[t]he lower my T-cell count, the more I

worry about every little ache and pain.” R.M. and B.B. testi-

fied that Boyer never told them that he was sick or had AIDS.

G.T. testified that Boyer said he had cancer and not AIDS.

B. Motion for Judgement of Acquittal

At the close of evidence, Boyer moved for a judgment of

acquittal on the charges for the attempted murders of R.M.

and B.B. He argued that, taking the evidence in the light most

favorable to the State, the State had failed to prove the

required intent element, having proved only recklessness.

19624 BOYER v. BELLEQUE

The State opposed the motion, arguing:

[T]he Defendant knowingly and deliberately inserted

his penis in the rectum of these two individuals. And

inserting bodily fluid from his penis into them, and

[sic] thereby caused the AIDS virus to be placed

inside each of these two children.

This was a knowing act, a deliberate act. There was

absolutely nothing more that he could do to prevent

the death of these children if they contracted the

AIDS virus.

The State analogized Boyer’s actions to placing a time bomb

in a city street and not knowing if someone would be there

when it went off.

The trial court denied Boyer’s motion on the ground that:

Intent is a very difficult thing to prove at best. . . .

[I]t is very rare anybody states expressly what their

intentions were. And typically it has to be inferred

from the evidence. . . . [G]iven the knowledge that

is attributable to Mr. Boyer regarding his infectious

disease, the jury could infer an intent here to cause

the deaths.

Allowing the attempted murder counts to go to the jury, the

judge instructed the jury that “[a] person acts intentionally or

with intent when that person acts with a conscious objective,

either, one, to cause a particular result, or two, to engage in

particular conduct.” He also stated that “Oregon law provides

that a person commits the crime of Attempted Aggravated

Murder if that person intentionally attempts to cause the death

of another human being under or accompanied by certain

BOYER v. BELLEQUE 19625

defined circumstance.” The jury found Boyer guilty of both

attempted aggravated murder counts.4

For all the crimes for which he was convicted, Boyer was

sentenced to a total of 604 months, or just over fifty years.5

Boyer directly appealed his convictions on the ground, inter

alia, that the evidence was legally insufficient to sustain a

guilty verdict for attempted aggravated murder. The Oregon

Court of Appeals affirmed without opinion, and the Oregon

Supreme Court denied review. State v. Boyer, 9 P.3d 157 (Or.

Ct. App. 2000), rev. denied, 18 P.3d 1099 (Or. 2000). Boyer

then filed in federal court a petition for a writ of habeas cor-

pus, which the district court rejected on the merits.

II. Standard of Review

We review the district court’s decision to grant or deny a

petition for writ of habeas corpus de novo. Lambert v. Blod-

gett, 393 F.3d 943, 964 (9th Cir. 2004). In assessing the legal-

ity of a state court conviction, we review the “last reasoned

state court decision,” which, in this case, was the trial court’s

4

The jury also found Boyer guilty of the attempted murder of B.B. for

the same underlying conduct. The state court set aside this conviction prior

to sentencing under the doctrine of merger.

5

For his conviction for the attempted aggravated murder of R.M., Boyer

received a sentence of 121 months’ imprisonment. For his other offenses

against R.M., Boyer was sentenced to one term of 75 months and one term

of 31 months, to be served concurrently with the attempted aggravated

murder sentence.

For his conviction for the attempted aggravated murder of B.B., Boyer

received a sentence of 120 months’ imprisonment. For his other offenses

against B.B., Boyer was sentenced to three terms of 75 months and one

term of 13 months, to be served concurrently with the attempted aggra-

vated murder sentence.

The two attempted aggravated murder sentences were imposed consecu-

tively and in addition to the sentences given for Boyer’s crimes against

other victims.

19626 BOYER v. BELLEQUE

denial of Boyer’s motion for judgment of acquittal on the

attempted aggravated murder counts. Delgadillo v. Woodford,

527 F.3d 919, 925 (9th Cir. 2008).

“A petitioner for a federal writ of habeas corpus faces a

heavy burden when challenging the sufficiency of the evi-

dence used to obtain a state conviction on federal due process

grounds,” particularly where, as here, the petition is governed

by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Juan H., 408 F.3d at 1274. Under AEDPA, a

writ of habeas corpus “shall not be granted with respect to any

claim that was adjudicated on the merits in State court pro-

ceedings” unless such adjudication resulted in a decision that

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

Boyer contends that the state court’s decision involved an

unreasonable application of federal law. A state court decision

is an unreasonable application of Supreme Court precedent if

the court “correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s

case.” Williams v. Taylor, 529 U.S. 362, 407-08 (2000); see

Penry v. Johnson, 532 U.S. 782, 792 (2001). “For purposes of

§ 2254(d)(1), an unreasonable application of federal law is

different from an incorrect application of federal law.” Har-

rington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Wil-

liams, 529 U.S. at 410 (internal quotation marks omitted)

(emphasis in original)). Under this highly deferential stan-

dard, the state court’s decision must “be given the benefit of

the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

Moreover, because Boyer bases his claim on insufficiency of

the evidence, we will only grant relief if the state court’s

application of Jackson was “objectively unreasonable.” Juan

H., 408 F.3d at 1275 n.13 (9th Cir. 2005). Under Jackson, a

petitioner “is entitled to habeas corpus relief if it is found that

BOYER v. BELLEQUE 19627

upon the record evidence adduced at the trial no rational trier

of fact could have found proof of guilt beyond a reasonable

doubt.” 443 U.S. at 324. “The Jackson standard ‘must be

applied with explicit reference to the substantive elements of

the criminal offense as defined by state law.’ ” Chein v.

Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (quoting Jackson,

443 U.S. at 324 n.16).

Thus, when we assess a sufficiency of evidence challenge

in the case of a state prisoner seeking federal habeas corpus

relief subject to the strictures of AEDPA, there is a double

dose of deference that can rarely be surmounted. The Jackson

v. Virginia standard is itself deferential, as it only permits

relief when “no rational trier of fact” could have found the

elements necessary for guilt satisfied beyond a reasonable

doubt. Jackson, 443 U.S. at 324. AEDPA adds a second level

of deference, as it is not enough if we conclude that we would

have found the evidence insufficient or that we think the state

court made a mistake. Rather, the state court’s application of

the Jackson standard must be “objectively unreasonable” to

warrant habeas relief for a state prisoner. Stated another way,

to grant relief, we must conclude that the state court’s deter-

mination that a rational jury could have found that there was

sufficient evidence of guilt, i.e., that each required element

was proven beyond a reasonable doubt, was objectively

unreasonable.

To add perspective on the claim before us, we borrow a lit-

erary allusion. Boyer is certainly no innocent Edmond Dantès,

wrongfully imprisoned, though innocent of crime, because of

a conspiratorial prosecution with witnesses lying to advance

their self interest.6 Boyer is undoubtedly guilty of many hei-

nous sexual offenses, and he does not here challenge those

convictions. But still the question presented in his federal

habeas petition is whether he was wrongly convicted of

6

See Alexandre Dumas, The Count of Monte Cristo (Peter Washington

trans., Everyman’s Library 2009) (1844-45).

19628 BOYER v. BELLEQUE

attempted aggravated murder and that question requires eval-

uating whether the evidence submitted to the jury was suffi-

cient for it to find all elements of that crime, as it has been

defined and interpreted by the state of Oregon, beyond a rea-

sonable doubt. For among the hallmarks of the American judi-

cial system is this premise: Even a bad person who has

committed many crimes should not be imprisoned for a crime

that he did not commit. With this in mind, we turn to a con-

sideration of whether, under the restricting lenses of Jackson

and of AEDPA, this appeal presents such a case.

III. Oregon’s Law of Attempted Aggravated Murder

Boyer contends that his convictions for attempted aggra-

vated murder violate due process because the prosecution’s

evidence did not prove a material element of the crime,

namely that Boyer intended to cause the deaths of R.M. and

B.B. The State argues that the state courts’ determination that

the evidence was sufficient to prove the crime of attempted

aggravated murder under Oregon law is a state-law issue that

is not reviewable in a federal habeas proceeding. This argu-

ment misapprehends the nature of our court’s review for sub-

stantial evidence. We assess whether record evidence is so

lacking that habeas relief is merited under Jackson “with

explicit reference to the substantive elements of the criminal

offense as defined by state law.” Id. at 324 n.16. When assess-

ing a petition for a writ of habeas corpus, we thus “look to

[state] law only to establish the elements of [the crime] and

then turn to the federal question of whether the [state] court

was objectively unreasonable in concluding that sufficient

evidence supported [its decision].” Juan H., 408 F.3d at 1278

n.14. To accept the State’s argument that sufficiency of the

evidence is entirely a state law issue would nullify the federal

constitutional prohibition against convicting persons absent

proof of guilt beyond a reasonable doubt, a principle firmly

established by the United States Supreme Court’s precedent.

In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process

Clause protects the accused against conviction except upon

BOYER v. BELLEQUE 19629

proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.”).

AEDPA requires that we treat the decisions of state courts

with deference, but it does not insulate them totally from our

review when federal constitutional rights are implicated. The

state of course is free to define the required elements of

attempted murder in its state law. But once the state has spo-

ken as to the required elements, the federal issue of suffi-

ciency of evidence remains: Was the evidence sufficient for

a rational jury to find each required element beyond a reason-

able doubt? To answer this question, we look to Oregon’s law

of attempted aggravated murder to determine what the prose-

cution was required to prove, vis-à-vis intent, to convict

Boyer for that crime.

[1] Boyer was charged with attempted aggravated murder

pursuant to Oregon Revised Statutes § 163.095 (defining

“Aggravated murder”), § 163.115 (defining “Murder”), and

§ 161.405 (defining “Attempt”). Under Oregon law, a person

is “guilty of an attempt to commit a crime when the person

intentionally engages in conduct which constitutes a substan-

tial step toward commission of the crime.” Or. Rev. Stat.

§ 161.405 (1996). “A person commits attempted murder when

he or she attempts, without justification or excuse, intention-

ally to cause the death of another human being.” State v.

Hinkhouse, 912 P.2d 921, 924 (Or. Ct. App. 1996) (citing Or.

Rev. Stat. § 163.115), modified, 915 P.2d 489 (Or. Ct. App.

1996), review denied by 925 P.2d 908 (Or. 1996).7 Oregon

law defines “intentionally” as “act[ing] with a conscious

objective to cause the result or to engage in the conduct so

7

Criminal homicide constitutes murder (1) “[w]hen it is committed

intentionally;” (2) when it is committed in the course of an enumerated

felony or attempted felony; or (3) “when a person, recklessly under cir-

cumstances manifesting extreme indifference to the value of human life,

causes the death of” a person with certain statutorily defined characteris-

tics. Or. Rev. Stat. § 163.115 (1996).

19630 BOYER v. BELLEQUE

described.” Or. Rev. Stat. § 161.085(7) (1996). Such action

must be “ ‘strongly corrobative of the actor’s criminal pur-

pose.’ ” See State v. Walters, 804 P.2d 1164, 1167 (Or. 1991)

(quoting Model Penal Code § 5.01(2)). Under Oregon law,

one cannot attempt reckless murder; where a defendant

engages in reckless conduct manifesting an extreme indiffer-

ence to the value of human life but does not injure anyone, he

may only be charged with reckless endangerment. State v.

Smith, 534 P.2d 1180, 1182-84 (Or. Ct. App. 1975). Rather,

Oregon’s law of attempted murder requires an actual intent to

cause a person’s death. See Hinkhouse, 912 P.2d at 924.

[2] Thus, under Oregon law, the evidence presented in sup-

port of Boyer’s attempted aggravated murder convictions is

legally sufficient if, viewed in the light most favorable to the

prosecution, it can support a finding that Boyer acted “with a

conscious objective to cause” the death of R.M. and B.B. Or.

Rev. Stat. § 161.085(7). We must deny Boyer’s petition for

the writ unless the state court’s determination that a rational

jury could find such intent was objectively unreasonable.

IV. Sufficiency of the Evidence

[3] A state is generally free to define the elements of

attempted murder as an offense under state law. See Stanton

v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (“While a state

is generally free within broad limits to define the elements of

a particular offense, once it has defined them, due process

requires that the jury be instructed on each element and find

each element beyond a reasonable doubt before it can con-

vict.” (citing Winship, 397 U.S. at 364)). Here, Oregon has

said that attempted murder requires the element of intent to

kill. In Hinkhouse, a case involving attempted murder through

the risk of transmission of HIV, the Oregon Court of Appeals

held that repeated unprotected sex by a person knowing he

had AIDS was sufficient to satisfy the intent element. 912

P.2d at 924-25 (Or. Ct. App. 1996). The Oregon State

Supreme Court denied review in Hinkhouse, and to our

BOYER v. BELLEQUE 19631

knowledge has decided no case to the contrary. It appears

then that the Oregon law on sufficiency of evidence to show

intent for an attempted murder charge related to HIV trans-

mission remains where the Oregon Court of Appeals left it in

Hinkhouse.

[4] Hinkhouse, in our view, clearly establishes the princi-

ple that a person with AIDS having unprotected sex with oth-

ers, knowing that the disease could spread this way, and

knowing it could be fatal, can be held to have satisfied the

Oregon substantive element of intent for an attempted murder

charge. We cannot say such a conclusion is wholly irrational,

for the question is simply whether a rational jury in these cir-

cumstances could find an intent to kill beyond a reasonable

doubt. The issue is not so much what Boyer subjectively

intended in fact, but what a rational jury could have con-

cluded he intended. Boyer’s challenge to sufficiency of the

evidence largely boils down to whether his case is sufficiently

different from Hinkhouse to say that the intent element was

not satisfied by adequate evidence. We will first assess

whether Boyer’s case is fairly distinguishable from that of

Hinkhouse. If it is not, we will further assess whether we are

in a position to say that the Hinkhouse court’s conclusion was

an objectively unreasonable application of Jackson such that

a rational jury in these circumstances could not find intent to

kill beyond a reasonable doubt.

A. Boyer’s case is not fairly distinguishable from

Hinkhouse.

In Hinkhouse, the state appellate court found that the fol-

lowing was “sufficient evidence for a rational trier of fact to

find that defendant intended to cause both physical injury and

death”:

[Hinkhouse] knew that he was HIV positive and that

his condition was terminal. He knew that if he trans-

mitted the virus to another person, that person even-

19632 BOYER v. BELLEQUE

tually would die as well. He understood that having

unprotected sex would expose his sexual partners to

the virus and that a single sexual encounter could

transmit the virus. . . .

In spite of that awareness, [Hinkhouse] engaged in a

persistent pattern of recruiting sexual partners over

a period of many months. He consistently concealed

or lied about his HIV status. He refused to wear con-

doms, or pretended to wear them, penetrating

women without protection and against their protesta-

tions. He engaged in unprotected sex, including

rough and violent intercourse, which increased the

chances of passing the virus to his partners. He

bragged about his sexual prowess, even after

acknowledging his HIV status . . .

Particularly in the light of the pattern of exploitation

over a long period of time, a rational fact finder

could conclude beyond a reasonable doubt that

defendant did not act impulsively merely to satisfy

his sexual desires, but instead acted deliberately to

cause his victims serious bodily injury and death.

Hinkhouse, 912 P.2d at 924-25.8

[5] The record here contains similar facts to those that the

Oregon Court of Appeals found sustained the conviction for

attempted murder in Hinkhouse. Viewing the evidence in the

light most favorable to the prosecution, a rational jury could

have concluded that Boyer knew that he had developed full-

8

The state appellate court initially considered evidence that Hinkhouse

expressly stated that he intended to transmit the disease through his con-

duct. Hinkhouse, 912 P.2d at 925. Upon reconsideration, the state appel-

late court affirmed the conviction, stating that even assuming

consideration of this statement should be precluded, “the evidence . . .

[was] sufficient to enable a jury to conclude, beyond a reasonable doubt,

that [Hinkhouse] intended to cause serious bodily injury and death.” Hink-

house, 915 P.2d at 490.

BOYER v. BELLEQUE 19633

blown AIDS by 1993 and he believed his condition to be ter-

minal; Boyer understood that he could transmit the disease

through even a single instance of unprotected sex, regardless

of whether or not he ejaculated, and his partner consequently

could develop AIDS and die as a result; Boyer targeted

extremely vulnerable victims, indeed children, over a period

of several months, through deliberate “grooming” and preda-

tory activities; Boyer sexually abused B.B. and R.M., anally

penetrating each of them once without a condom, despite

knowing that he had full-blown AIDS; Boyer concealed from

his victims and lied to his victims about the fact that he had

AIDS; when Boyer raped R.M. and had anal sex with B.B.,

he knew his viral count was high, which increased the likeli-

hood of transmission; Boyer’s sexual encounters with his vic-

tims were rough and violent, as he raped R.M., and his anal

penetration of B.B. was painful; and Boyer bragged about

raping R.M.

[6] The facts here are strikingly similar to those recognized

in Hinkhouse as probative of intent. Accordingly, we do not

think that Boyer’s case can be fairly distinguished from the

facts of Hinkhouse. If there was sufficient evidence to sustain

the element of intent to kill in Hinkhouse’s attempted murder

conviction, then we conclude that there was also adequate evi-

dence to sustain that of Boyer under Oregon law.

B. We are not in a position to say that Hinkhouse was

wrongly decided.

There remains the question whether, despite the similarity

of this case to Hinkhouse, the United States Supreme Court

could take the view that the evidence determined to be suffi-

cient in Hinkhouse, and the similar evidence here, is inade-

quate as a matter of federal constitutional law to show intent

to kill. Yet this is a case under AEDPA, and we cannot grant

relief unless we conclude that Oregon’s application of Jack-

son v. Virginia, deciding the evidence here was sufficient for

a rational jury to find guilt on the intent element beyond a rea-

19634 BOYER v. BELLEQUE

sonable doubt, is an objectively unreasonable application of

Supreme Court precedent. We are unaware of any Supreme

Court case suggesting that intent to kill could not be deter-

mined by a rational jury from the factual circumstances set

forth above, involving repeated unprotected sex by a person

knowing that he had AIDS and that its transmission could be

fatal. Accordingly, we cannot determine without more that the

state has unreasonably applied Jackson.

[7] We conclude that the state courts’ application of Jack-

son v. Virginia was not objectively unreasonable. See Har-

rington, 131 S. Ct. at 785. It was not unreasonable, in the light

of Hinkhouse, to conclude that a rational jury could find

beyond a reasonable doubt that Boyer intended to kill his vic-

tims based on proof that he anally penetrated several victims

with knowledge that he could infect them with AIDS.

That intent to kill is the required mens rea for the crime of

attempted murder is basic to our criminal law:

[O]n a charge of attempted murder it is not sufficient

to show that the defendant intended to do serious

bodily harm, that he acted in reckless disregard for

human life, or that he was committing a dangerous

felony. Again, this is because intent is needed for the

crime of attempt, so that attempted murder requires

an attempt to bring about that result described by the

crime of murder (i.e., the death of another).

See Wayne R. LaFave, Substantive Criminal Law § 11.3(a)

(2d ed. 2003). The Oregon criminal code likewise separately

defines “[i]ntentionally,” “[k]nowingly,” and “[r]ecklessly,”

Or. Rev. Stat. § 161.085(7), (8), (9), and conviction in Oregon

for attempted murder requires proof of the defendant’s intent

to cause the death of his victims, Hinkhouse, 912 P.2d at 924.

But the problem in this case for Boyer, a problem com-

pounded by the Hinkhouse precedent, is that the state appel-

late court concluded that the evidence in this case supported

BOYER v. BELLEQUE 19635

a rational inference of intent to kill. Although the United

States Supreme Court would be free to issue a new precedent

giving relief to Boyer on his theory, the constraints of

AEDPA preclude our doing so.

V. Conclusion

[8] With some reluctance because of the thin nature of the

evidence of intent, but concluding that state courts have a

broad general entitlement to deference to define their own

state criminal law and that this case cannot be fairly distin-

guished from Hinkhouse, we conclude that the state courts’

determination that sufficient evidence existed to support

Boyer’s convictions for attempted aggravated murder was not

objectively unreasonable, and habeas relief is not warranted.

AFFIRMED.