Andrew Boyer v. Brian Belleque
FILED OPINION (RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ) AFFIRMED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW LEE BOYER,
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
BOYER v. BELLEQUE
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Tonia L. Moro, Assistant Federal Public Defender, Medford,
Oregon, for the petitioner-appellant.
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BOYER v. BELLEQUE
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Assistant Attorney
General, Salem, Oregon, for the defendant-appellee.
GOULD, Circuit Judge:
Oregon state prisoner Andrew Lee Boyer appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. 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 interpreted 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 aggravated murder was an objectively reasonable application of
Jackson v. Virginia, 443 U.S. 307 (1979). We affirm.
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], knowing that he . . . was infected with [AIDS1], a fatal disease that
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
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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 convictions.
Because Boyer claims that the evidence presented at trial
was constitutionally insufficient to support his attempted
aggravated murder convictions, we review the evidence presented 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 favorable 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).
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 vulnerable victims likely to succumb to the abuser’s advances, and
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.
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BOYER v. BELLEQUE
testimony showed that Boyer used such techniques in
approaching his victims.
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 having sexual intercourse with B.B. because “the kid was too little, 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 ejaculated 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 penetration 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.
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
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on him. Boyer threatened to kill R.M., and later R.M.’s parents, if R.M. told anyone about the abuse. R.M. estimated that
he visited Boyer’s home about fifty times and that Boyer performed oral sex on him about twenty times in total. R.M. testified 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 condom.
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 psychiatric assessment on R.M., also testified, noting that R.M. said
he had been involved, as the passive recipient, in anal intercourse and oral sex with Boyer. Victim G.T. also testified that
Boyer had bragged about raping R.M.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 bedroom. Boyer unsuccessfully tried to have B.B. anally penetrate Boyer, and then Boyer performed oral and anal sex on
B.B. B.B. testified that Boyer did not ask his permission to
Victim G.T. testified that, in regard to R.M., Boyer stated, “I butt
fucked him pretty good. It was pretty good.”
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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 testimony did not mention this incident.
Dr. Michael Lukschu testified that he conducted an examination and evaluation of B.B. for suspected child abuse and
that B.B. disclosed that Boyer had penetrated his anus.
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 December 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
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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.
Boyer’s journal was admitted into evidence. In parts of it
from 1995 that were read aloud to the jury, Boyer acknowledged that he had been HIV-positive for ten years with fullblown 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. testified that Boyer never told them that he was sick or had AIDS.
G.T. testified that Boyer said he had cancer and not AIDS.
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.
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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
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
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
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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 corpus, which the district court rejected on the merits.
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. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). In assessing the legality of a state court conviction, we review the “last reasoned
state court decision,” which, in this case, was the trial court’s
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.
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
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 aggravated murder sentence.
The two attempted aggravated murder sentences were imposed consecutively and in addition to the sentences given for Boyer’s crimes against
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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 evidence 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 proceedings” 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.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410 (internal quotation marks omitted)
(emphasis in original)). Under this highly deferential standard, 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
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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 determination 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
To add perspective on the claim before us, we borrow a literary 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 heinous 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
See Alexandre Dumas, The Count of Monte Cristo (Peter Washington
trans., Everyman’s Library 2009) (1844-45).
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BOYER v. BELLEQUE
attempted aggravated murder and that question requires evaluating whether the evidence submitted to the jury was sufficient for it to find all elements of that crime, as it has been
defined and interpreted by the state of Oregon, beyond a reasonable doubt. For among the hallmarks of the American judicial 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 consideration of whether, under the restricting lenses of Jackson
and of AEDPA, this appeal presents such a case.
Oregon’s Law of Attempted Aggravated Murder
Boyer contends that his convictions for attempted aggravated 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 argument misapprehends the nature of our court’s review for substantial 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 assessing 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
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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 spoken as to the required elements, the federal issue of sufficiency of evidence remains: Was the evidence sufficient for
a rational jury to find each required element beyond a reasonable doubt? To answer this question, we look to Oregon’s law
of attempted aggravated murder to determine what the prosecution was required to prove, vis-à-vis intent, to convict
Boyer for that crime.
 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 substantial 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, intentionally 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
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 circumstances manifesting extreme indifference to the value of human life,
causes the death of” a person with certain statutorily defined characteristics. Or. Rev. Stat. § 163.115 (1996).
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BOYER v. BELLEQUE
described.” Or. Rev. Stat. § 161.085(7) (1996). Such action
must be “ ‘strongly corrobative of the actor’s criminal purpose.’ ” 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 indifference 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.
 Thus, under Oregon law, the evidence presented in support 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.
Sufficiency of the Evidence
 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 convict.” (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
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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 transmission remains where the Oregon Court of Appeals left it in
 Hinkhouse, in our view, clearly establishes the principle that a person with AIDS having unprotected sex with others, 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 circumstances 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 concluded 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.
Boyer’s case is not fairly distinguishable from
In Hinkhouse, the state appellate court found that the following was “sufficient evidence for a rational trier of fact to
find that defendant intended to cause both physical injury and
[Hinkhouse] knew that he was HIV positive and that
his condition was terminal. He knew that if he transmitted the virus to another person, that person even-
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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 condoms, or pretended to wear them, penetrating
women without protection and against their protestations. 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
 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 full8
The state appellate court initially considered evidence that Hinkhouse
expressly stated that he intended to transmit the disease through his conduct. Hinkhouse, 912 P.2d at 925. Upon reconsideration, the state appellate 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.” Hinkhouse, 915 P.2d at 490.
BOYER v. BELLEQUE
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blown AIDS by 1993 and he believed his condition to be terminal; 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 predatory 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 likelihood of transmission; Boyer’s sexual encounters with his victims were rough and violent, as he raped R.M., and his anal
penetration of B.B. was painful; and Boyer bragged about
 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 evidence to sustain that of Boyer under Oregon law.
We are not in a position to say that Hinkhouse was
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 sufficient in Hinkhouse, and the similar evidence here, is inadequate 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 Jackson v. Virginia, deciding the evidence here was sufficient for
a rational jury to find guilt on the intent element beyond a rea-
Page: 19 of 20
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 determined 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.
 We conclude that the state courts’ application of Jackson v. Virginia was not objectively unreasonable. See Harrington, 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 victims 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 compounded by the Hinkhouse precedent, is that the state appellate court concluded that the evidence in this case supported
BOYER v. BELLEQUE
Page: 20 of 20
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.
 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 distinguished 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.
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