NOT DESIGNATED FOR PUBLICATION
No. 126,835
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
WILLIAM EARL WINSHIP,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JACOB PETERSON, judge. Submitted without oral argument.
Opinion filed August 21, 2026. Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.
Before SCHROEDER, P.J., GARDNER and CLINE, JJ.
CLINE, J.: William E. Winship appeals the admission of prior sexual misconduct evidence under K.S.A. 60-455 at his jury trial. A jury convicted Winship of rape, aggravated sodomy, and aggravated indecent liberties with a child for acts committed against his sister (whom we call Renee) after Winship turned 18 years old. At trial, the State admitted evidence of prior acts of sexual misconduct that Winship committed against his other sisters.
Winship claims the evidence was highly prejudicial and was not probative to what he characterizes as the central issue in the trial: whether he was 18 when he committed
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the charged crimes. But a review of the record reveals there were other contested issues to which this evidence was both relevant and probative—including Renee's credibility, which Winship criticized at trial. While the evidence was indeed prejudicial, we do not find the district court abused its discretion when it found that prejudice did not substantially outweigh the evidence's probative value. See State v. White, 316 Kan. 208, 215, 514 P.3d 368 (2022). We therefore affirm Winship's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
At the time Winship was charged, the Winship family included two married parents (Mother and Father) and eight children: Debra (1988), Anna (1990), William (Defendant) (1992), Charlotte (1994), Abby (1997), Marge (1999), Renee (2001), and Esther (2003) (referred to by pseudonyms).
In July 2011, Abby was the first sister to report abuse by Winship. Abby attended a youth conference with her family's church out-of-state and disclosed to the youth pastor that her brother had abused her. Mother and Father were informed of the accusations, but Abby alleged that "her parents 'ignored' the reports and told her to 'cover up' when [Winship] visited the house." Mother and Father sent Abby to a counselor at the church for six months, but no actions beyond this were taken, and Winship was allowed to move back into the house.
In April 2019, Abby and Renee called in a welfare check for their youngest sister, fearing that their parents were physically and emotionally abusing her, and during this investigation by the Saline County Sheriff's Department, both Abby and Renee disclosed sexual abuse by their brother. Abby alleged that Mother and Father were both aware of the sexual abuse and did nothing about it.
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Mother admitted that Abby had disclosed the sexual abuse years ago to the church and had also informed Mother that three other sisters had also been sexually abused, but Mother confirmed nothing was ever reported to law enforcement. The deputies that responded to this call referred the matter to adult protective services (APS), but APS closed the case since Abby and Renee no longer lived in the home and could make reports on their own.
In June 2022, Renee made a formal report to the Saline County Sheriff's Department, alleging a continuous cycle of sexual abuse by Winship that began when she was in first grade. Todd Walsh, Saline County Sheriff Investigator, then interviewed each sister other than Marge (who initially indicated she would come in for an interview but never showed). The other sisters, however, each recounted extensive sexual abuse by Winship.
Winship was eventually charged with one count of rape under K.S.A. 21-
5503(a)(3) and (b)(2), one count of aggravated criminal sodomy under K.S.A. 21- 5504(b)(1) and (c)(3), and one count of aggravated indecent liberties with a child under K.S.A. 21-5506(b)(3)(A) and (c)(3).
Before trial, the State moved to admit the testimony of Debra, Anna, Charlotte, Abby, and Esther regarding previous sexual misconduct as propensity evidence. The district court held a K.S.A. 60-455 motion hearing, at which each of these sisters testified. The district court weighed the probative value and the prejudicial effect of each instance of testimony sought to be admitted, allowing some to be admitted and denying others.
At trial, Walsh was the first witness who testified. Winship objected to the admission of Walsh's testimony about the prior sexual misconduct reported to him and then requested a continuing objection for all the evidence admitted under K.S.A. 60-455.
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The court granted Winship's request for a continuing objection. Then, on day three of trial, another sister (Marge) decided to testify about the abuse she had endured. Her testimony had not been included in the State's K.S.A. 60-455 motion, so the court briefly delayed trial to hold a K.S.A. 60-455 motion hearing and determine whether her testimony could be admitted. It ultimately allowed Marge's testimony.
After trial, the jury convicted Winship on all three counts, and the district court sentenced him to three concurrent life sentences with possibility of parole after 25 years.
REVIEW OF WINSHIP'S APPELLATE CHALLENGES
Winship argues that the admission of prior sexual misconduct against his other sisters turned the trial into an inquisition on the uncharged conduct, thereby overwhelming the evidence of the charged act and violating his right to a fair trial.
Standard of Review
When an appellant questions the district court's weighing of probative value and prejudice, an appellate court reviews the ruling for an abuse of discretion. State v. Alfaro- Valleda, 314 Kan. 526, 535, 502 P.3d 66 (2022). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Younger, 320 Kan. 98, 137-38, 564 P.3d 744 (2025).
Admission of Prior Sexual Misconduct Evidence
The Kansas Legislature, in 2009, recognized the unique nature of other crimes evidence in sex offense cases by enacting K.S.A. 2009 Supp. 60-455 section (d). K.S.A. 60-455(d) provides:
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"Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326 or 21-6419 through 21-6422, and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative."
Given the broad wording of K.S.A. 60-455(d), evidence is usually admissible.
State v. Satchell, 311 Kan. 633, 641, 466 P.3d 459 (2020). Before admitting propensity evidence, however, the district court must still consider whether the evidence's potential prejudice substantially outweighs the probative value of that evidence. White, 316 Kan. at 215. The risk of undue prejudice is not whether the evidence is damaging but whether the evidence will likely "'contribute to an improper jury verdict or distract from the central issues at trial.'" State v. Perez, 306 Kan. 655, 671, 396 P.3d 78 (2017).
When gauging the probative value of evidence about a defendant's prior sexual misconduct, the district court must consider several factors: (1) "how clearly the prior act was proved"; (2) "how probative the evidence is of the material fact sought to be proved"; (3) "how seriously disputed the material fact is"; and (4) "whether the [State] can obtain any less prejudicial evidence." State v. Boysaw, 309 Kan. 526, 541, 439 P.3d 909 (2019).
Turning then to an assessment of prejudice, the district court must decide whether the evidence has potential for undue prejudice. In other words, the district court should consider: (1) "the likelihood that such evidence will contribute to an improperly based jury verdict"; (2) "the extent to which such evidence may distract the jury from the central issues of the trial"; and (3) "how time consuming it will be to prove the prior conduct." 309 Kan. at 541.
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The district court thoroughly applied the Boysaw factors in balancing the probative value with the prejudicial effect.
After the five sisters testified at the hearing on the State's pretrial motion to admit their testimony about previous sexual misconduct under K.S.A. 60-455, the district court asked the State to submit a list of the specific incidents it intended to admit so that the court could analyze and apply the balancing test to each incident. After the State submitted its list, the court then held a hearing where it announced its ruling.
At the hearing, the district court examined each incident the State sought to admit, addressing the testimony from each sister in turn. For each incident, the court explained how it weighed the probative value of the evidence against its prejudicial effect. When examining the probative value, the court examined, for example, how similar the prior sexual misconduct was to the charged allegations as well as the ages of the sisters and Winship at the time of the prior acts. It also noted the clarity of the sisters' testimony about the incidents when weighing the probative value.
The court excluded some evidence after finding its prejudicial effect outweighed its probative value. For example, some incidents were excluded because Winship was only 10 years old when he engaged in the misconduct and the alleged acts were not similar to the charged conduct. When faced with what it felt was a close call on some incidents, the court excluded the evidence because it remained mindful of the volume of evidence it agreed to admit and the overall risk that evidence of Winship's prior sexual misconduct would distract the jury from its duty to decide whether Winship was guilty of the charged conduct.
Later, when Marge decided to testify at trial, the district court addressed both the timeliness and admissibility of her testimony. As for timeliness, it found good cause to allow the testimony because Marge had been uncooperative with the investigation.
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Instead, the court found Marge actually had more contact with the defense and put them on notice about what she would say, resulting in the traditional safeguards of the 10 days before trial deadline for K.S.A. 60-455 evidence admission being unnecessary.
As for the content of Marge's testimony, the court applied the balancing test from Boysaw and found her proposed testimony admissible.
On appeal, Winship challenges how the district court analyzed each Boysaw factor, so we address them in turn.
Admission of prior sexual misconduct does not require a conviction.
Winship argues that the district court's finding that each woman clearly testified to the abuse does not lend itself to fulfilling the first probative factor—"how clear[ly] the prior act was proved"—because mere allegations should not favor admissibility. In support, he cites State v. Brown, 58 Kan. App. 2d 599, 473 P.3d 910 (2020), where the defendant had pled guilty to the prior conduct thus clearly proving the prior act, implying that this factor should only weigh in favor of finding probative value when prior sexual misconduct was the subject of a conviction.
However, convictions are not required for the State to admit evidence of prior sexual misconduct. See State v. Brown, 59 Kan. App. 2d 418, 491, 486 P.3d 624 (2021) ("In turn, under the plain language of K.S.A. 2017 Supp. 60-455[d], the State may admit evidence of a defendant's prior sexual misconduct even if that defendant was never charged and convicted for that sexual misconduct."); see also K.S.A. 60-455(d) (providing there only needs to be "evidence of the defendant's commission of another act or offense of sexual misconduct"). Thus, our Supreme Court has allowed admission of evidence of prior uncharged sexual misconduct based solely on the victim's testimony.
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See, e.g., State v. Spear, 297 Kan. 780, 788-89, 304 P.3d 1246 (2013); State v. Prine, 297 Kan. 460, 481, 303 P.3d 662 (2013).
In State v. Barlow, No. 120,166, 2020 WL 593946, at *8 (Kan. App. 2020)
(unpublished opinion), the defendant similarly challenged the first factor, arguing that "because [K.S.A. 60-455] evidence came solely from . . . testimony, instead of from a previous conviction," the "allegations of prior bad acts . . . were neither proved beyond a reasonable doubt nor admitted," and thus have "little probative value." In response, this court held:
"K.S.A. 2018 Supp. 60-455(d) does not require that prior bad acts be proved beyond a reasonable doubt. K.S.A. 2018 Supp. 60-455(d) does not differentiate evidence of prior sexual misconduct based (1) on the form from which that evidence arises or (2) if a prior fact-finder has found the evidence reached a certain burden of proof. Instead, the statute states that 'evidence of the defendant's commission of another act or offense of sexual misconduct is admissible.'" 2020 WL 593946, at *9.
The court then reviewed the testimony for specificity and clarity of the events when it noted that the testimony "was not specific in exactly how and when the sexual contact began" but the witness was able to recall that it began in Wichita. 2020 WL 593946, at *9. And when considered in conjunction with other testimony, the details given helped corroborate previous sexual misconduct. 2020 WL 593946, at *9.
Similarly, here, the district court related how clearly an act was proven to the witness' ability to recount specific details and events when weighing the probative value of that evidence. For example, the court found Debra's recollection of an incident was more probative than Anna's because it was more specific and it noted Anna had memory issues associated with a car wreck. And it found Charlotte's testimony probative because it "was incredibly clear" since she "was definitive that this abuse occurred using body parts, hands, genitals, touching breasts, and other objects," she was "definitive about
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penetration, about when it occurred when the parents weren't home, and who was left in charge," and there "were definitive written rules that governed how the sisters and him were to behave while it was happening." The district court also emphasized that "she maintained those allegations, even under fairly rigorous cross-examination."
Thus, the district court did not err when considering the first probative Boysaw factor because it differentiated specific and credible testimony from testimony that was not as clear and weighed the first factor in favor of those who could recall events clearly.
Winship has too narrowly framed the material facts and issues for trial.
Winship next argues that the district court's most serious error in admitting the K.S.A. 60-455 evidence—which he claims "taints all of the judge's 60-455 rulings"—was its misunderstanding of the central issue of the trial. Winship claims the central issue was whether he was over 18 when the charged abuse occurred. He claims this means that the district court assigned the prior sexual misconduct evidence greater probative value than it was entitled to receive because he alleges this evidence was not relevant to his age at the time of the charged abuse. As a result, he alleges that the second and third probative factors—"how probative the evidence is of the material fact [sought] to be proved and how seriously disputed the material fact is"—should have weighed against admission of the sisters' testimony. He also argues this evidence was prejudicial because it distracted the jury from what he characterizes as the central issue at trial.
The State, for its part, argues that disputed facts might change as evidence unfolds, and without any concessions on elements of the charged crimes, a defendant cannot simply declare one element as the only issue and foreclose the State from putting on evidence to prove the remaining elements.
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Winship was charged with rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. In addition to proving Winship's age, the State also had to prove the remaining elements beyond a reasonable doubt: that Winship engaged in intercourse and sodomy with Renee—intentionally, engaged in lewd fondling or touching of Renee—with the intent to arouse or satisfy the sexual desires of Renee or Winship, and that Renee was under the age of 14 for all of these incidents.
Winship did not waive his right to a jury trial on those elements and pled not guilty at the preliminary hearing. Thus, the State had to prove that Winship's conduct satisfied all the elements and is permitted to do so using prior sexual misconduct under K.S.A. 60-455(d).
Along with his age, the question of whether Winship sexually assaulted Renee in the charged manner remained a key question at trial. And even defense counsel's argument at the K.S.A. 60-455 hearing—which Winship quotes in his brief—mentions whether the alleged abuse of Renee "actually occurred" would be an issue at trial, as would her age at the time of the charged abuse. While Winship characterized his age was the "central fact," the State still had to prove the other elements of the crime.
Further, defense counsel questioned Renee's credibility in closing, emphasizing her credibility was more important than Winship's age. When discussing her recollection of the charged conduct, counsel stated:
"[W]hether [Winship] was 18 or under 18 at the time these allegations of the attic incident occurred, really doesn't matter. Because it hinges on [Marge] being there and [Marge] says it flat out never happened. It did not happen.
"So, here's really what it comes down to. If you don't find [Renee's] version of events to be entirely credible, because she was only 90 percent certain to begin with and 80 percent of that was changed, then you have to find [Winship] not guilty. If you find [Marge] to be credible, then you have to find [Winship] not guilty. And if after sitting
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here through two full days of testimony, and really after sitting through [Renee's] testimony and [Marge's] testimony, you're left with that feeling that, I don't really know which one of them to believe. That, ladies and gentlemen, is reasonable doubt. And that also requires you to find [Winship] not guilty . . . ."
The district court found the prior sexual misconduct evidence probative because it demonstrated similar conduct to Renee's recollection of the charged abuse. As such, it was relevant to a disputed material issue which Winship's counsel emphasized in closing—whether Winship had sexually assaulted Renee.
Winship makes specific arguments about each sister's testimony, but we find them unavailing. For example, he claims Anna's testimony about Winship touching her breasts in the basement was not probative because he was under 18 years old. The district court acknowledged that Winship's age at the time of this act reduced the testimony's probative value, but it found the testimony still demonstrated similar conduct "in which [Winship] isolates a female sibling without clothes and touches them to satisfy some kind of sexual exploration or sexual desires."
With regard to Charlotte's testimony, Winship makes the same argument: that this conduct occurred when he was under the age of 18. Again, while true, Winship cannot unilaterally bar the State from presenting evidence of prior sexual misconduct without some stipulation or waiver to the other elements of the charged conduct. As such, the fact that there were nearly identical allegations and corroborating information pertaining to the types of abuse and the so called "bad game" meant the testimony was still highly probative.
As for Abby's testimony, Winship does not argue his age but points to the district court's statement when weighing the prejudicial factors that the evidence could "'be distracting in a sense the jury could become preoccupied with the length and egregiousness of the conduct.'" He also argues that the previous reports made by Abby
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were not properly considered in the prejudicial analysis. However, the district court found this testimony was "extremely probative" because it showed a pattern of abuse and the conduct closely matched the charged conduct. And while Winship alleges that the probative value of Marge's testimony was overstated, the district court highlighted that the evidence was probative as it demonstrated the same types of sexual acts alleged by Renee, which went to a key element that the State had the burden to prove.
Winship did not discuss the testimony of Debra, text messages between Debra and his fiancée, Charlotte's allegations that she observed abuse perpetrated against Abby and Marge, Charlotte's therapy, or Charlotte's reporting of the abuse in 2019. We therefore find he waived any argument about the admission of this evidence because an issue not briefed is deemed waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).
All in all, we find Winship has too narrowly framed the disputed issues at trial and ignored the State's burden to prove all the elements of the charged crimes. As such, we do not find his arguments that the district court erred in weighing the probative value of the prior misconduct evidence persuasive.
The district court did not abuse its discretion in weighing the prejudicial impact of the prior misconduct evidence.
Winship also argues that the district court abused its discretion in weighing the prejudicial impact of the prior misconduct evidence because he alleges that the district court failed to properly consider the time-consuming nature of the testimony, given its volume. To support his argument, Winship cites Brown, 58 Kan. App. 2d at 601, in which the defendant was accused of two rapes, an attempted rape, aggravated indecent liberties, and intimidation of a witness. In that case, the State sought to admit previous domestic property damage crimes to show why the victim feared the defendant and
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delayed reporting. 58 Kan. App. 2d at 605-07. This court reversed because there was no assertion that the victim delayed reporting out of fear, so the evidence did not lend itself to a key disputed fact. 58 Kan. App. 2d at 613. Winship likens the ratio of previous misconduct testimony to current charge testimony to that in Brown, in which this court found "the extensive presentation of the prior crimes evidence was such that, rather than focus on the merits of the State's proof that Brown committed sexual offenses, the jury's attention was necessarily distracted by the details and magnitude of Brown's collateral wrongdoing." 58 Kan. App. 2d at 616.
Unlike Brown, the prior misconduct in this case is highly probative to a material issue—whether sexual misconduct occurred—and it demonstrates a pattern of abuse in a similar manner, against his sisters before they hit puberty. The testimony from Debra, Anna, Charlotte, Abby, and Marge, regarding previous sexual misconduct under K.S.A. 60-455, took about 29 pages in the transcript, whereas the remaining testimony on non- K.S.A. 60-455 evidence took approximately 198 pages—not including the remaining testimony of Debra, Anna, Charlotte, Abby, or Marge, voir dire, opening statements, closing arguments, or the brief K.S.A. 60-455 hearing during the third day of trial. There is no clear standard for determining when K.S.A. 60-455 overtakes evidence of the charged crimes; however, this case is substantially different than Brown in which there were 40 pages of testimony, 25 photos, and a handwritten statement admitted to prove the previous domestic conduct compared to the 4 transcript pages in which the victim discussed her fear of disclosing her sexual abuse. See 58 Kan. App. 2d at 615.
Moreover, the district court addressed how time consuming the admission of each incident would be when it explained its pretrial ruling. For the incidents it agreed to admit, the court did not find this factor was significant. And, as mentioned, when it found admissibility of an incident to be a close call, it erred on the side of caution and determined the evidence inadmissible due to the volume of prior sexual misconduct evidence it was admitting.
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For these reasons, we find the district court thoughtfully reviewed each Boysaw factor, and we do not find that it abused its discretion when doing so.
Affirmed.