                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          July 21, 2005
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 WILLIE J. SIMKINS,

                  Petitioner-Appellant,                 No. 04-3505
          v.                                            (D. of Kan.)
 L. E. BRUCE; ATTORNEY                         (D.C. No. 03-CV-3235-GTV)
 GENERAL OF KANSAS,

                  Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                 *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.          **




      A Kansas jury, applying state law, convicted Willie J. Simkins of

aggravated indecent liberties with a child and aggravated intimidation of a

witness. Simkins was sentenced to 85 months in prison. On direct appeal,

Simkins challenged the sufficiency of the evidence to sustain his convictions.



      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Both the Kansas Court of Appeals and the Kansas Supreme Court affirmed the

convictions.

        In May 2003, filing pro se in the United States District Court for the

District of Kansas, Simkins sought federal habeas corpus relief under 28 U.S.C.

§ 2254. He made four claims, three of which were deemed waived for failure to

fully exhaust his state court remedies. The fourth and instant claim, insufficiency

of the evidence, was denied by the district court. For the reasons set forth below,

we find that Simkins has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

483–84 (2000). Thus, we deny a certificate of appealability (COA) and dismiss

the appeal.

                                    I. Discussion

        The original information filed against Simkins charged him with five

crimes. The first, second, and fourth charges were aggravated indecent liberties

with a child. The third charge was aggravated criminal sodomy, and the fifth was

aggravated intimidation of a witness or victim. Simkins was found guilty of the

first and fifth charges and not guilty of charges two, three, and four. Simkins

seeks a COA to challenge the sufficiency of the evidence for charges one and

five.




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       A. Standard of Review

       The Kansas courts adjudicated Simkins’ case on the merits, so our review,

which is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA), is limited to two grounds. Parker v. Scott, 394 F.3d 1302, 1308 (10th

Cir. 2005). We may only grant a COA if the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

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)(2).

       B. Application

       In applying AEDPA, this court has not decided whether sufficiency of the

evidence is a question of law or fact. Webber v. Scott, 390 F.3d 1169, 1178 (10th

Cir. 2004). For purposes of a § 2254 claim, it can be either, as the Supreme

Court’s holding in Jackson illustrates.    See Jackson v. Virginia , 443 U.S. 307, 319

(1979). There, the Court held that “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution,   any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”    Id. If sufficiency of the evidence is treated as a legal claim,

then under § 2254(d)(1) the court must evaluate whether the state court

unreasonably applied the standard from      Jackson . Webber , 390 F.3d at 1178


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(citations omitted). If sufficiency of the evidence is treated as a factual finding,

then the analysis falls under § 2254(d)(2), which asks whether the state court’s

decision was an unreasonable determination of the facts.     Id. (citations omitted).

Here, Simkins’ claim fails under either analysis.

       In applying the Jackson standard, we look to Kansas law to determine the

substantive elements of the crimes.     Turrentine v. Mullin , 390 F.3d 1181, 1197

(10th Cir. 2004). Under Kansas law, a charge of aggravated indecent liberties

with a child requires the state to prove beyond a reasonable doubt that Simkins

had “[s]exual intercourse with a child who is 14 or more years of age but less than

16 years of age.” Kan. Stat. Ann. § 21-3504(a)(1). Since here the age of the

minor is not in question, the sole issue is whether Simkins and the minor engaged

in sexual intercourse. To prove sexual intercourse, the state relied on the

uncorroborated testimony of the minor. It is established Kansas law that the

uncorroborated testimony of the alleged victim may alone be sufficient to convict

a defendant of sexual assault, as long as that evidence is clear and convincing and

not so incredible or improbable as to defy belief.   See Kansas v. Borthwick , 880

P.2d 1261, 1269–68 (Kan. 1994);       Kansas v. Matlock , 660 P.2d 945, 946 (Kan.

1983). Simkins asks us to grant the COA based on the insufficiency of this

uncorroborated evidence. He contends the evidence is so contradictory and

unconvincing as to make it insufficient as a matter of law. We do not agree.


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      As to the first charge, aggravated indecent liberties with a child, we have

reviewed the evidence and conclude that a rational jury could credit the minor’s

trial testimony as both consistent and believable. She told similar, detailed

accounts to police, at a preliminary hearing, and during both direct and cross-

examination at trial. The jury concluded with respect to the other charges of

sexual misconduct, however, that the prosecution had not met its burden of proof.

Just because a witness’s testimony is disregarded as to one charge does not mean

that the jury’s verdict on another charge is unreliable as a matter of law. We

therefore find that a reasonable jury could have believed the minor’s testimony as

to the first charge even if it did not believe that same witness’s testimony

regarding other similar allegations.

      The fifth charge, aggravated intimidation of a witness in violation of Kan.

Stat. Ann. § 21-3832(a)(1), requires that the state prove Simkins knowingly and

maliciously attempted to dissuade a witness or victim from giving testimonial

evidence. Here, the state presented much more than uncorroborated testimony to

sustain a guilty verdict. Simkins himself wrote literally dozens of letters to the

minor from jail, including one seeking her hand in marriage, and another asking

her to change her story. Clearly, a reasonable jury could infer from his actions

that Simkins knowingly and maliciously attempted to dissuade the minor from




                                          -5-
giving true and complete testimonial evidence. Thus, Simkins is not entitled to a

COA on this ground.

      In sum, we find Simkins has not made a “substantial      showing of the denial

of a constitutional right” because the district court’s rejection of his sufficiency

of the evidence claim was not an unreasonable application of     Jackson , nor an

unreasonable determination of the facts.

      Therefore, we DENY Simkins’ COA and DISMISS the appeal. We also

GRANT his motion to proceed in forma pauperis.        Appellant’s “Notice to Court,”

construed as a motion to supplement the record, previously granted in part, is

hereby granted.



                                                 Entered for the Court


                                                 Timothy M. Tymkovich
                                                 United States Circuit Judge




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