James W. VanRoyen, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

James W. VanRoyen—who was convicted of multiple child sexual abuse offenses—appeals the district court's denial of his first K.S.A. 60-1507 motion. Although the district court summarily denied most of the claims for relief asserted in VanRoyen's motion, it held an evidentiary hearing on his remaining claims. On appeal, VanRoyen continues to assert that his trial counsel was ineffective in a variety of ways. In addition, he argues that the State committed a Brady violation. However, based on our review of the record on appeal, we find no reversible error. Thus, we affirm the district court's denial of VanRoyen's K.S.A. 60-1507 motion.

Facts

In 2012, a jury convicted VanRoyen of 16 counts of sexually abusing three of his minor family members. In this opinion, we will refer to the victims as “Minor 1” (YOB 1994), “Minor 2” (YOB 1995), and “Minor 3” (YOB 1997). Moreover, because the parties are familiar with the underlying facts, we will briefly summarize them in this section of the opinion and refer to additional facts as necessary in our analysis.

Specifically, the jury found VanRoyen to be guilty of nine counts of aggravated indecent liberties with a child; three counts of sexual battery; and one count each of indecent solicitation of a child, aggravated indecent solicitation of a child, criminal sodomy, and aggravated criminal sodomy. The minor victims lived with family members in a trailer in rural Elk County. VanRoyen lived with other family members at the house of the minor victims’ grandmother that was located about 3 miles from the trailer. At trial, the three minor victims testified to repeated incidents of sexual abuse by VanRoyen over the course of several years.

Throughout the trial, VanRoyen was represented by retained counsel who cross-examined the State's witnesses and presented the testimony of five witnesses on behalf of the defense. The defense witnesses challenged the allegations against VanRoyen and testified that he was rarely—if ever—alone with the minor victims. During closing arguments, trial counsel highlighted alleged inconsistencies in the minor victims’ version of the events, challenged the State's investigation, argued that the allegations of the minor victims were tainted by leading questions, and suggested that they had a motive to falsely accuse VanRoyen to get away from their grandmother and other family members.

Some of VanRoyen's convictions were for off-grid felonies because the victim was under 14 years of age when the offenses occurred. But the district court ran all of the sentences concurrent. This resulted in a controlling term of life in prison without possibility of parole for 25 years. On direct appeal, a panel of this court reversed two of VanRoyen's convictions involving Minor 2 but affirmed his remaining convictions. See State v. VanRoyen, No. 110,169, 2015 WL 569354, at *10 (Kan. App. 2015) (unpublished opinion).

On February 9, 2018, VanRoyen filed a timely K.S.A. 60-1507 motion. In his motion, VanRoyen raised multiple claims for relief. Material to the issues presented in this appeal, VanRoyen claimed that his trial counsel was ineffective for failing to hire an investigator, failing to retain a child forensic interview expert, failing to negotiate a plea agreement, and failing to file a motion to admit evidence regarding Minor 1’s alleged sexual conduct. In addition, VanRoyen claimed that trial counsel should have obtained Department for Children and Families (DCF) records relating to allegations made by the minor victims that their grandmother had physically abused them.

The district court held an evidentiary hearing on three of VanRoyen's claims and summarily dismissed his other claims. At the evidentiary hearing, which was held on December 9, 2021, the district court heard testimony from VanRoyen, his brother—Wes VanRoyen, and his trial counsel. In addition, VanRoyen called another criminal defense attorney, Patrick Lewis, as an expert witness. Lewis testified regarding the use of expert witnesses in Jessica's Law cases.

Following the evidentiary hearing, the district court denied all of VanRoyen's claims. Relating to the issues presented in this appeal, the district court did not find trial counsel to be ineffective for failing to call a child interview expert, failing to obtain DCF reports, and failing to introduce evidence of alleged prior sexual conduct by one of the minor victims.

Thereafter, VanRoyen timely appealed.

Analysis

On appeal, VanRoyen presents two issues. First, VanRoyen contends that the district court erred when it summarily denied most of the claims for relief stated in his K.S.A. 60-1507 motion. Second, VanRoyen contends that the district court erred by failing to consider his claim that trial counsel had failed to discuss plea negotiations with him prior to proceeding to trial. In response, the State contends that the district court appropriately denied the K.S.A. 60-1507 motion filed by VanRoyen.

Initial Matters

At the outset, we note that VanRoyen has not briefed several of the claims that he had originally asserted in his K.S.A. 60-1507 motion. An issue or claim that is not briefed is deemed to be waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). We thus find that VanRoyen has waived or abandoned any issue or claim not addressed in his appellate brief.

Also, VanRoyen tacitly argues that he is entitled to relief based on the time that elapsed between the filing of his K.S.A. 60-1507 motion and the district court's final ruling. But VanRoyen does not cite any legal authority in support of this argument. Accordingly, we find that this argument is not properly briefed and is not preserved for appeal. See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021).

Standard of Review

Our review of a district court's summary denial of a K.S.A. 60-1507 motion is unlimited. In such cases, we review the record on appeal to determine whether the motion, files, and records conclusively establish that VanRoyen is not entitled to relief. See K.S.A. 60-1507(b); State v. Roberts, 310 Kan. 5, 12, 444 P.3d 982 (2019). As the movant, VanRoyen has the burden to establish that an evidentiary hearing is warranted. To do so, he is required to assert more than conclusory allegations or speculative contentions. Instead, he must show an evidentiary basis to support his claims or point us to an evidentiary basis in the record. Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019).

But a different standard applies to appeals on K.S.A. 60-1507 claims that were considered at an evidentiary hearing. For such claims, we review the district court's findings of fact to determine whether they are supported by substantial competent evidence. Then, our review is unlimited regarding whether that evidence is sufficient to support the district court's conclusions of law. Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

Claims of ineffective assistance of counsel are analyzed under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under the first prong, a defendant must show that the attorney's performance was deficient. If so, we then move to the second prong and determine whether there is a reasonable probability that—absent counsel's alleged deficient performance—the result would have been different. State v. Evans, 315 Kan. 211, 217-18, 506 P.3d 260 (2022).

“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. In determining whether counsel's performance was ineffective, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689. Consequently, in this appeal, VanRoyen must overcome the strong presumption that the actions of his retained trial counsel were reasonable and within the realm of professional judgment. See Khalil-Alsalaami, 313 Kan. at 486.

Failure to Hire an Investigator

VanRoyen asserts that trial counsel was ineffective for failure to perform an adequate investigation or retain an investigator. Under this umbrella assertion, VanRoyen makes five arguments. We will address each of these arguments below.

Witness Preparation

VanRoyen argues that trial counsel failed to adequately prepare the defense witnesses for trial. He acknowledges that some of the defense witnesses testified at trial that they met with trial counsel prior to trial. A review of the record reveals that Dan VanRoyen—one of James VanRoyen's brothers—testified that he met with trial counsel on three occasions before he testified at trial. He further testified that each of these meetings lasted between two to four hours. Similarly, the minor victims’ grandmother testified that she met with trial counsel a “few times” before she testified.

Still, VanRoyen suggests on appeal that because trial counsel met with several witnesses at the same time, it “substantially limited the amount of time” he had to prepare each witness. But he has cited no evidence to support this claim. In addition, VanRoyen alleges that Dan's daughter—who is a cousin to the minor victims—did not know in advance that she would be called to testify at trial.

Although VanRoyen alleges that trial counsel pulled the cousin from school the day of her testimony without giving her prior notice, he again does not cite any evidence in the record to support this allegation. When a movant alleges facts not appearing in the record that, if true, would entitle the movant to relief, the motion must identify other sources of evidence or readily available witnesses whose testimony would support those facts. See Beauclair v. State, 308 Kan. 284, 296, 419 P.3d 1180 (2018); see also Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298 (2007). Here, VanRoyen's argument fails for lack of factual support.

VanRoyen also suggests that the cousin's trial testimony could have been stronger. According to VanRoyen, the cousin should have been able to testify that despite being around the minor victims “every day” she “never witnessed any inappropriate behavior.” VanRoyen also implies that the cousin was lacking in her “demeanor, cadence, tone, tempo, volume, body language, et cetera.” Stated differently, VanRoyen argues that trial counsel was ineffective because the cousin's testimony was not as strong as he believes it could have been.

We find VanRoyen's argument to fall short of establishing that trial counsel's performance was deficient in preparing the defense witnesses to testify. In reviewing the record on appeal, we note that the cousin testified at trial that she was not aware of VanRoyen ever being alone with the minor victims. Likewise, the cousin testified that she never saw VanRoyen engage in inappropriate behavior with them. In other words, although the cousin's testimony may not have been as strong as VanRoyen would have liked, it was consistent with the purposes for which she was called.

As the State notes, the district court judge who conducted the evidentiary hearing on the K.S.A. 60-1507 motion also presided over the trial and heard the testimony of the witnesses. As such, the district court was well-equipped to determine VanRoyen's claims regarding the preparation of witnesses by trial counsel. Consequently, we conclude that the district court did not err in concluding that VanRoyen had failed to establish that trial counsel's witness preparation was deficient or ineffective.

Exclusion of Exhibit F

Next, VanRoyen argues that trial counsel was ineffective for failing to successfully have “Defense Exhibit F” admitted into evidence. He suggests that had trial counsel retained an investigator, it would have aided him in the admission of this exhibit. Unfortunately, our review is hindered by the fact that the exhibit is not included in the record on appeal. Regardless, we do not find VanRoyen's argument to be persuasive.

According to VanRoyen, Exhibit F is a photograph—taken by trial counsel—which depicts the view looking from the top a bridge where Minor 2 and Minor 3 allegedly saw VanRoyen positioned in a manner supporting one of Minor 1’s allegations of sexual abuse. Evidently, the purpose of the photograph was to show that it would be impossible to see under the bridge while standing on top.

The record reveals that none of the witnesses testified—or otherwise implied—that they could see under the bridge while standing on top of it. Instead, Minor 3 testified that she could see the bottom of VanRoyen's legs as he stood under the bridge when looking down from the top but saw nothing else. Regardless, when an appellant fails to designate a record that shows prejudicial error, we find that appellant has failed to show “a reasonable question as to whether prejudicial error exists.” K.S.A. 21-6814(d). Given the conclusory nature of VanRoyen's argument and the testimony presented at trial, we find that there is no reasonable question as to prejudicial error.

Witness Selection

VanRoyen also challenges trial counsel's decision to call Dan VanRoyen and the grandmother as witnesses. He points out that both of these witnesses had credibility issues that undercut their testimony. Although the district court recognized that these witnesses had credibility issues, it found that they testified to matters on behalf of the defense that no other witness could. As to Dan, the district court found that even though there was “a blemish on his testimony, it did not render his testimony useless.” And as to the grandmother, the district court found that regardless of whether the jury liked her or not, she was the only person who could testify that she did not beat her granddaughter after she alleged that VanRoyen had sexually abused her in the family's barn.

Generally, trial counsel's decision to call or not call certain witnesses is considered valid trial strategy. Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008); see also State v. Hedges, 269 Kan. 895, 916, 8 P.3d 1259 (2000). However, to make a sound strategic decision, defense counsel must conduct sufficient investigation to make an informed choice. Wilkins, 286 Kan. at 982. “When counsel lacks the information to make an informed decision due to inadequacies of his or her investigation, any argument of ‘trial strategy’ is inappropriate.” Mullins v. State, 30 Kan. App. 2d 711, 716-17, 46 P.3d 1222 (2002).

Based on our review of the record on appeal, we find that the district court did not err in determining that trial counsel made a valid strategic choice in calling these witnesses. The record reflects that VanRoyen's primary theory of defense to the minor victims’ claims of sexual abuse was that he was rarely—if ever—alone with them nor did anyone see him acting inappropriately with them. As a result, VanRoyen—who did not testify on his own behalf—needed to call witnesses who could support this defense. Under these circumstances, the testimony of Dan and the grandmother was the strongest evidence available.

A review of the record shows that Dan and the grandmother spent the most time with VanRoyen. So, they could account for much of his time while the other witnesses could not do so. As the record reveals, VanRoyen lived with the grandmother and worked on her property. Moreover, VanRoyen spent most of his time with Dan while working.

Dan testified that they worked on the ranch together nearly every day and spent around three-quarters of their workday with each other. In addition, Dan resided in the trailer that the minor victims lived in and was able to account for much of their time. On the other hand, Wes VanRoyen typically worked on the ranch only on the weekends and the minor victims’ father initially worked elsewhere. Then, once the father started working on the ranch, he did not typically work with VanRoyen.

Under the circumstances presented, we find no error in the district court's conclusion that it was sound strategy for trial counsel to present the testimony of Dan and the grandmother to support VanRoyen's theory of defense. In other words, VanRoyen has failed to “overcome the strong presumption that, under the circumstances, counsel's action might be considered sound trial strategy.” State v. James, 319 Kan. 178, 184-85, 553 P.3d 308 (2024).

In conclusion, we do not find that VanRoyen has shown that trial counsel was ineffective in investigating this matter in preparation for trial. Likewise, we do not find that VanRoyen has shown that trial counsel was ineffective for failing to retain an investigator. Even if we were to assume that trial counsel was ineffective, we also find that VanRoyen has not shown that he was denied the right to a fair trial or otherwise prejudiced. See Glasgow v. State, No. 123,311, 2022 WL 982875, at *12-13 (Kan. App. 2022) (unpublished opinion) (addressing a similar claim regarding an allegedly inadequate investigation in a child sex assault case and finding no convincing claim of prejudice). As the district court found, the record reflects that trial counsel adequately presented VanRoyen's defense and attacked the credibility of the State's witnesses. The record also reveals that trial counsel challenged perceived flaws in the State's investigation.

Failure to Hire a Child Forensic Interview Expert

VanRoyen further asserts that trial counsel provided ineffective assistance of counsel by failing to retain a child forensic interview expert to help prepare for cross-examination and to challenge the reliability of the minor victims’ version of the events. He argues that because he maintained his innocence and claimed that the minor victims lied about the abuse, an expert was crucial to his defense. More specifically, he argues that trial counsel's failure to retain an expert prevented him from challenging the reliability of the victims’ interviews to expose their credibility issues.

VanRoyen relies on Mullins. In that case, a panel of this court found defense counsel in a sexual abuse case ineffective for failing to procure an expert on child interviews to address potentially problematic interviewing techniques. 30 Kan. App. 2d at 717-18. Still, as VanRoyen acknowledges, there is no bright-line rule that defense counsel must always retain an expert in sexual abuse cases. See, e.g., Randolph v. State, No. 116,765, 2017 WL 6072956, at *5 (2017) (“Mullins does not establish a bright-line rule that all instances of a counsel's failure to secure and utilize an expert on child-witness interview techniques equates to deficient representation.”).

VanRoyen also argues that failure to hire an expert in this case establishes ineffectiveness of trial counsel under the two-prong Strickland test. But “Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. In many instances cross-examination will be sufficient to expose defects in an expert's presentation.” Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

Here, it is undisputed that trial counsel did not consider hiring a child forensic interview expert. In Mullins, the movant's trial counsel was found to be deficient because the attorney's performance “so undermined the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result. [Citation omitted.]” See Mullins, 30 Kan. App. 2d at 718. In subsequent cases, our appellate courts limited the holding in Mullins to cases involving similar factual and procedural circumstances. See Wilkins, 286 Kan. at 983 (recognizing the limitation and listing preceding Court of Appeals cases recognizing it). In other words, whether Mullins applies depends on the specific facts presented in each case.

In applying Mullins, appellate courts have recognized that expert testimony can be essential in maintaining fairness because a potential for prejudice exists depending on the circumstances presented. See, e.g., State v. Huntley, 39 Kan. App. 2d 180, 189, 177 P.3d 1001 (2008); Chubb v. State, No. 99,912, 2009 WL 929136, at *7 (Kan. App. 2009) (unpublished opinion); Filbert v. State, No. 127,659, 2025 WL 2427662 (Kan. App.) (unpublished opinion), rev. denied 321 Kan. 788 (2025). On the other hand, other appellate courts have declined to apply Mullins based on distinguishing facts and other factors. See Hall v. State, No. 109,168, 2014 WL 1096748, at *8 (Kan. App. 2014) (unpublished opinion); Bemis v. State, No. 123,659, 2022 WL 68337, at *6-7 (Kan. App. 2022) (unpublished opinion); Cardenas v. State, No. 122,033, 2021 WL 833992, *4-5 (Kan. App. 2021) (unpublished opinion).

Here, the district court found Mullins distinguishable based on the corroborating evidence presented at trial, the age of the minor victims, and trial counsel's extensive cross-examination pointing out possible flaws in the interview technique. Based on our review of the record on appeal, we agree with the district court's analysis. In particular, we find it to be significant that the girls were 14, 16, and 17 when they were interviewed. As a result, there were not the same concerns that are often seen when young children are interviewed. Because the girls were teenagers, they were less likely to be susceptible to suggestions than younger children would have been. See State v. Lewis, No. 89,319, 2003 WL 22345468, at *5, *11 (Kan. App. 2003) (unpublished opinion).

We also note that trial counsel conducted an extensive cross-examination of the forensic interviewer. In questioning the interviewer, trial counsel addressed several potential concerns. For example, trial counsel emphasized more than once that training for the protocol and methods used in the interviews. Trial counsel inquired about the minor victims discussing allegations in their second round of interviews that they learned from each other after the first round of interviews. He suggested that the sisters—mainly Minor 3—fed the others false stories. Trial counsel also questioned the interviewer about word choices, pointing out that she used leading and suggestive language during the interviews.

In addition, the jury was able to watch the videos of the first round of interviews of the minor victims. Although they corroborated each other's allegations, there was also evidence presented from several witnesses that corroborated an incident that occurred in a barn. Similarly, Minor 1’s school records corroborated other instances that she had reported.

Finally, it is important to note that VanRoyen has not presented an affidavit or report from an expert witness asserting that the forensic interviews of Minor 1, Minor 2, or Minor 3 were conducted in a way that would foster false accusations. At this stage, a defendant collaterally attacking their conviction cannot rest a K.S.A. 60-1507 claim on the mere possibility some hypothetical expert might impugn the evidence presented at trial. Copeland v. State, No. 126,212, 2025 WL 502651, at *6 (Kan. App. 2025) (unpublished opinion) (“An ‘entirely abstract and hypothetical assertion that some unidentified expert in a particular field might have been of help ․ is insufficient to suggest legal prejudice.’ ”) (quoting Bailey v. State, No. 124,101, 2022 WL 2188031, at *2 [Kan. App. 2022] [unpublished opinion]).

Based on our review of the record, we conclude that even if trial counsel's performance was deficient in failing to consult with a child forensic interview expert, there has been no showing that this resulted in prejudice to VanRoyen's right to a fair trial under the circumstances presented.

Failure to Investigate DCF Records

VanRoyen raises two arguments related to the DCF records related to allegations made by the minor victims that they were physically abused by their grandmother. He argues that the State committed a Brady violation by suppressing discovery of the records. In the alternative, VanRoyen argues that trial counsel was ineffective for failing to subpoena the records. We find neither of these arguments to be compelling.

Brady Violation

The State cannot withhold favorable evidence to an accused “where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “[A] Brady violation is reviewed de novo with deference to a trial court's findings of fact, but the trial court's denial of the defendant's motion for new trial is reviewed under an abuse of discretion standard.” State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012).

There are three elements of a Brady violation: “(1) ‘ “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching” ’; (2) ‘ “that evidence must have been suppressed by the State, either willfully or inadvertently” ’; and (3) the evidence must be material so as to establish prejudice. [Citations omitted.]” Warrior, 294 Kan. at 506. If there is a reasonable probability the outcome of the proceeding would differ had the evidence been disclosed, the evidence is considered material. 294 Kan. at 507.

To establish the right to a new trial based upon newly discovered evidence, a criminal defendant must establish: (1) the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) the newly discovered evidence “ ‘is of such materiality that it would be likely to produce a different result upon retrial.’ ” State v. Dean, 310 Kan. 848, 856, 450 P.3d 819 (2019).

Before considering VanRoyen's argument, we note that Kansas Supreme Court Rule 183(c)(3) (2026 Kan. S. Ct. R. at 241) precludes movants from asserting new arguments regarding alleged trial errors by way of a K.S.A. 60-1507 motion. Absent exceptional circumstances, trial errors must instead be corrected as part of a direct appeal. See Supreme Court Rule 183(c)(3). As a result, VanRoyen must first show exceptional circumstances excusing his failure to raise this argument on direct appeal.

We find nothing in VanRoyen's briefs to suggest that he has asserted exceptional circumstances to justify his failure to raise this argument in his direct appeal. Even though VanRoyen asserted prosecutorial error on direct appeal, he did not argue this or any other Brady violation. See VanRoyen, 2015 WL 569354, at *4-5. Consequently, we will not address this new argument. See Wilkins, 286 Kan. at 989-90 (dismissing Brady claim lacking any identified exceptional circumstances).

Failure to Subpoena DCF Records

VanRoyen also asks us to find trial counsel's performance was deficient because he failed to subpoena the DCF records relating to the grandmother. The district court declined to find trial counsel to be deficient because: (1) he had access to some of the reports; and (2) the grandmother denied the allegations of physically abusing the minor victims at trial. The district court also noted that “lack of substantiation does not mean the events did not occur.” The court also pointed out that some of the DCF records actually “bolstered the consistency of the victims’ claims.”

We agree that the record conclusively shows that VanRoyen is not entitled to relief on this ground. Trial counsel elicited testimony showing that the grandmother was investigated twice for allegedly hitting the minor victims. Further, trial counsel elicited testimony showing the girls did not want to be returned home.

As the State points out in its brief, trial counsel was not required to engage in investigations that appear unlikely to be helpful. Richter, 562 U.S. at 107 (“An attorney can avoid activities that appear ‘distractive from more important duties.’ ․ Counsel [is] entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.”). We find the district court's summary denial of this argument appropriate because the record conclusively shows that trial counsel's performance related to the DCF records was not deficient under the circumstances. We are not persuaded to find ineffectiveness based on a failure to present documents that showed the victims twice reported a different person—albeit another family member—for physical abuse at a defendant's trial for sexual abuse.

Failure to File a Rape Shield Motion

VanRoyen next contends that the district court erred in denying his claim that trial counsel was ineffective for failing to file a motion seeking to present evidence that Minor 1 had allegedly participated in sexual activity with her boyfriend. He argues this evidence would have accounted for the minor victim describing seminal fluid as being white and salty. In response, the State contends that this evidence was inadmissible and, as a result, trial counsel's performance could not have been deficient in not presenting it at trial.

We agree that the evidence that VanRoyen claims trial counsel should have presented at trial was inadmissible. As the district court determined, VanRoyen failed to proffer evidence that would have permitted the admission of evidence under K.S.A. 21-5502. Under K.S.A. 21-5502(b)—known as the rape shield statute—a defendant in a sex crimes prosecution cannot generally introduce evidence of a victim's “previous sexual conduct.” In passing Kansas’ rape shield statute, our Legislature sent a clear message that a victim's prior sexual activity should generally not be admitted into evidence at trial. Before admitting such evidence, the district court must first find it to be relevant and otherwise admissible. See State v. Berriozabal, 291 Kan. 568, Syl. ¶ 11, 243 P.3d 352 (2010).

The rape shield statute “does not preclude the admission of relevant evidence that impeaches the credibility of the witness.” State v. Montes, 28 Kan. App. 2d 768, 773, 21 P.3d 592 (2001). But in cases with child victims, our court has required a defendant to show in camera that the victim previously had been exposed to a sexual act and that the prior act was “ ‘sufficiently similar to the sexual act charged to give the victim the experience and ability to contrive or imagine the act charged.’ ” State v. Foshee, No. 90,270, 2004 WL 1373294, at *2 (Kan. App. 2004) (unpublished opinion); see also State v. Lavery, 19 Kan. App. 2d 673, Syl. ¶ 3, 683, 877 P.2d 443 (1993) (enforcing rape shield statute to exclude alleged evidence that victim's contact with another provided her an alternative source of sexual knowledge where the other contact—hands in the victim's pants—was insufficiently similar to the charge acts—sodomy).

Under this rule, VanRoyen was required to make a proffer establishing sufficient similarities to the allegations against him. The district court reviewed a proffer that VanRoyen submitted in support of his K.S.A. 60-1507 motion but found it to be insufficient to meet the standard for admissibility. The proffer evidence did not describe any particular conduct with specificity that would have allowed the district court to make a finding of admissibility.

We find that the record on appeal supports the district court's conclusion. Moreover, VanRoyen does not address his failure to make a sufficient proffer and instead argues only that the district court erred as a matter of law by assessing the evidence's relevance. His primary contention being, “[c]redibility is always relevant at trial.” We find this argument to be misplaced and conclude that VanRoyen has shown no basis for granting relief.

Failure to Discuss Plea Agreements

In his final argument, VanRoyen contends for the first time that trial counsel was ineffective for failing to discuss plea negotiations with him prior to trial. Again, for issues arising out of the evidentiary hearing, we review whether the district court's findings of fact are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015). To prove ineffective assistance of counsel, VanRoyen must show both a deficient performance and prejudice. See Evans, 315 Kan. at 217-18.

In his K.S.A. 60-1507 motion, VanRoyen alleged that the State offered him a plea deal before trial. He claimed this agreement offered around 50 months’ imprisonment, but he refused the deal per advice that he received from trial counsel. VanRoyen thus initially challenged trial counsel's effectiveness with regard to plea agreements based on this bad advice that trial counsel allegedly provided. The district court denied the claim within the context that VanRoyen initially argued. Following the evidentiary hearing, the district court determined that the State never offered VanRoyen a plea and trial counsel never advised him to reject any plea deal.

These findings are supported by the evidence presented at the hearing. Trial counsel testified to never receiving an offer from the State. Likewise, the State's witness, Judge Amy Hanley—who had worked for the Kansas Attorney General's Office at the time of VanRoyen's trial—testified that a plea was never offered or considered in this case. Hanley also clarified that an offer for less than 12 years would never have been offered in this case.

VanRoyen does not address anything related to those matters and instead presents a new, modified argument. He claims trial counsel never talked to him about plea agreements at all. He seemingly argues that it was error to not encourage him to consider entering a plea as a viable end to this case. He also suggests that he would have agreed to enter a plea for a sentence of up to 165 months’ imprisonment. But this argument was never raised in the district court, so it cannot be raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). VanRoyen also does not address the lack of preservation or argue any reason the argument should be considered. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019); Supreme Court Rule 6.02(a)(5) (2026 Kan. S. Ct. R. at 36). So, we will not review this claim.

The State also correctly contends that by modifying his argument to this extent, VanRoyen essentially tries to take a second bite out of the apple by amending his K.S.A. 60-1507 motion without having been granted leave to do so. See Thompson v. State, 293 Kan. 704, 714, 270 P.3d 1089 (2011) (a K.S.A. 60-1507 motion can only be amended with leave of the court). Moreover, even if preserved, VanRoyen's argument is nonsensical. He claims that trial counsel should have discussed the potential benefits of agreeing to enter a plea. But the State never offered a plea. And according to trial counsel and VanRoyen's testimony at the evidentiary hearing, VanRoyen adamantly maintained that he was innocent of all charges. So, trial counsel was confident that VanRoyen would not have taken a plea even if one had been offered.

Regardless, VanRoyen raises this claim for the first time on appeal without any explanation of why it was not argued to the district court. See Johnson, 309 Kan. at 995. Because VanRoyen has made no attempt to comply with Rule 6.02(a)(5) and other procedural rules, we find the argument unpreserved. Although we have taken note of some of the flaws in the merits of this claim, we decline to grant review.

Cumulative Error

Finally, VanRoyen claims he was denied his constitutional right to a fair trial by trial counsel's cumulative errors. Cumulative trial errors, when considered together, may require reversal of the defendant's conviction when the totality of the circumstances establish that the defendant was substantially prejudiced by the errors and denied a fair trial. State v. Guebara, 318 Kan. 458, 483, 544 P.3d 794 (2024). But, having found at most one deficiency by trial counsel that did not result in prejudice to VanRoyen, this doctrine is inapplicable here. State v. Lowry, 317 Kan. 89, 100, 524 P.3d 416 (2023).

Conclusion

We affirm the district court's order of summary dismissal of the claims presented in this appeal. Specifically, we find the motion, files, and records conclusively establish that VanRoyen is not entitled to relief.

Affirmed.

Per Curiam: