State v. Breeden

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,475

STATE OF KANSAS,
Appellee,

v.

CODY BREEDEN,
Appellant.


SYLLABUS BY THE COURT


1.
Pursuant to the language of K.S.A. 22-3414(3), a lesser included offense
instruction is only required where there is evidence which would reasonably justify a
conviction of a lesser included crime, i.e., where the instruction is factually appropriate.
Therefore, a trial court does not err in refusing to give a lesser included offense
instruction on a crime which is unsupported by the evidence.

2.
Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) requires an appellant
to explain why an issue that was not presented to the trial court should be considered for
the first time on appeal.

3.
A trial court judge who admits K.S.A. 2012 Supp. 60-455(b) evidence must give a
limiting instruction informing the jury of the specific purpose for admission of the
evidence in order to avoid error.

2

4.
The right to a K.S.A. 2012 Supp. 60-455(b) limiting instruction is not based on
whether a party objected to the admission of the evidence that is the subject of the
instruction, and a failure to object to the admission of the evidence does not waive the
right to raise an issue on appeal regarding whether the failing to give an instruction is
clearly erroneous.
5.
If a trial court errs by failing to give a K.S.A. 2012 Supp. 60-455(b) limiting
instruction, an appellate court must review the entire record to determine if the error was
reversible. This requires the appellate court to make a de novo determination of whether
the court is firmly convinced that the jury would have reached a different verdict had a
limiting instruction been given.

6.
A trial court has no duty sua sponte to address a silent defendant and inquire
whether he or she knowingly and intelligently waives the right to testify. An express
waiver, on the record, is not necessary because a defendant's conduct provides a
sufficient basis from which to infer that the right to testify is waived.

7.
Under the factors stated in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978),
for determining whether a sentence violates § 9 of the Kansas Constitution Bill of Rights,
a hard 25 life sentence for committing the crime of aggravated criminal sodomy on a 10-
year-old child is not a cruel and unusual punishment where none of the factors weighs in
favor of the defendant's arguments.



3

8.
An inmate who has received an off-grid indeterminate life sentence can leave
prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a
sentencing court has no authority to order a term of lifetime postrelease supervision in
conjunction with an off-grid indeterminate life sentence.

Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge. Opinion filed June 14, 2013.
Conviction affirmed, sentence affirmed in part and vacated in part, and case remanded with directions.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Jennifer S. Tatum, assistant district attorney, argued the cause, and Michael A. Russell, chief
deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Cody Breeden appeals his conviction for aggravated criminal
sodomy of a child under the age of 14 and his sentence of life imprisonment with a
mandatory minimum term of imprisonment of not less than 25 years. Breeden raises five
issues: (1) The trial court erred by failing to instruct the jury on attempted aggravated
criminal sodomy as a lesser included offense; (2) the trial court erred by failing to give a
limiting instruction regarding the admission of evidence that Breeden battered and
threatened the victim; (3) his constitutional right to testify was violated because the trial
court did not obtain an affirmative waiver of that right on the record; (4) his hard 25 life
sentence violates the Eighth Amendment to the United States Constitution and § 9 of the
Kansas Constitution Bill of Rights; and (5) the sentencing court erred by entering a
journal entry reflecting a sentence that included lifetime postrelease supervision.

4

We find that Breeden's first four issues either lack merit or were not properly
preserved. We, therefore, affirm his conviction and his hard 25 life sentence. As to the
fifth issue, we conclude the sentencing court erred in entering a journal entry that did not
reflect the punishment imposed at the sentencing hearing and instead recorded an illegal
punishment of lifetime postrelease supervision. We, therefore, vacate the journal entry
requirement of lifetime postrelease supervision and remand for entry of a corrected
journal entry.

FACTS AND PROCEDURAL BACKGROUND

The incident that resulted in Breeden's conviction for aggravated criminal sodomy
occurred on March 22, 2009, when Breeden, who was 21 years of age at the time, was
alleged to have sodomized 10-year-old L.B.

Breeden was a friend of L.B.'s older brother and had been to L.B.'s house on many
occasions, even when his friend was not around. On March 22, 2009, Breeden came to
L.B.'s house to visit his friend and found that his friend was not home. Regardless,
Breeden went to his friend's basement bedroom.

According to L.B.'s statements to law enforcement officers and his testimony, L.B.
was lying on his brother's bed when Breeden came into the basement bedroom. Breeden
sat down on a loveseat in the room and, after a while, moved from the loveseat to the bed.
Breeden then pulled down L.B.'s pants and started sucking L.B.'s penis.

About that time, Richard Leslie, L.B.'s godfather and a friend of L.B.'s family,
came down the stairs. He "observed a young man sitting in what appeared to be like a
computer chair, . . . and he was bent over where [L.B.'s brother's] bed was." Leslie
testified that all he could see

5

"was from the chest down, I couldn't see his head or anything of that nature from my
vantage point. But as soon as I reached the bottom of the steps, he jumped and ran past
me. And I stepped on in the room and [L.B.] was laying [sic] on the bed and immediately
he pulled his pants up."

Leslie could not see Breeden's head or L.B.'s body but he thought Breeden "was trying to
commit oral sex" on L.B.

Leslie went back upstairs and told L.B.'s mother that she needed to call L.B.
upstairs. Leslie did not tell her why, only that something inappropriate was happening
and he thought he saw L.B. pulling up his pants. When L.B. came upstairs after being
called, his mother asked him what had happened. At that point, Breeden also came
upstairs to leave and L.B. "clammed up" and would not answer his mother's question.
After that, according to L.B.'s mother, he kept looking at the door Breeden had used to
exit the house and would not talk. She said L.B. seemed distracted and "he was not
wanting to talk to me like he usually would talk to me, he was hiding his head and real
nervous about not talking." Eventually, she took L.B. into another bedroom and asked
what would make it easier for him to tell her what had happened. L.B. put his face in a
pillow and told her that Breeden had "taken him off the chair and punched him in the
stomach and threw him on the bed and held him down and started sucking his [penis]."
L.B.'s mother said she was going to call the police. L.B. asked her not to because Breeden
said he was going to kill L.B. if he told anyone about what happened. Nevertheless, she
made the call.

Breeden did not testify at trial. The jury heard Breeden's explanation of what
happened, however, because the State played a recording of his interview with the law
enforcement officers. In the interview, which was conducted 2 days after the incident,
Breeden stated he was in his friend's bedroom when L.B. came downstairs and got on the
bed beside Breeden. L.B. played with Breeden's phone for a while and then "pulled his
6

pants down and asked me three times to suck his penis." After the third time L.B. asked,
Breeden sucked L.B.'s penis for about 60 seconds, hoping L.B. would stop asking.
Breeden said he stopped because he felt like it was not right; he denied stopping because
they were interrupted.

Based on this evidence, a jury convicted Breeden of aggravated criminal sodomy
of a child under the age of 14, in violation of K.S.A. 21-3506(a)(1). Before sentencing,
Breeden filed a motion for a departure from the statutory life sentence with a mandatory
minimum term of imprisonment of not less than 25 years and lifetime postrelease
supervision. See K.S.A. 21-4643(a)(1)(D) (commonly known as Jessica's Law). In
addition, at the sentencing hearing, Breeden challenged the constitutionality of the hard
25 life sentence under § 9 of the Kansas Constitution Bill of Rights. The sentencing court
denied the departure motion and Breeden's constitutional challenge and sentenced
Breeden to the hard 25 life imprisonment term provided for in Jessica's Law.

Breeden timely appealed his conviction and sentence. This court has jurisdiction
under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment; hard 25 life
sentence imposed for off-grid crime; appeal docketed before July 1, 2011).

ISSUE 1: The Trial Court Did Not Err in Failing to Give Jury Instruction for Attempt

Breeden's first argument is one that was not raised before the trial court. He argues
the evidence supports a lesser included offense of attempted aggravated criminal sodomy
and the trial court committed clear error by not instructing the jury on that lesser included
offense. The State asserts that Breeden's confession to law enforcement officers precludes
a conviction for the lesser offense; thus, the trial court did not err in failing to instruct on
the lesser included offense of attempted aggravated criminal sodomy.

7

Recently, in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), this court set
out the analytical framework to be applied when a claim of error is based on the failure to
give a jury instruction that was not requested at trial. In that decision, after recognizing
the framework for such an analysis is guided by K.S.A. 22-3414(3), we noted that past
applications of the statute had conflated the determinations of appellate reviewability,
error on the merits, and reversibility of the error. In an attempt to differentiate those
analytical steps, Williams stated:

"[T]o determine whether it was clearly erroneous to give or fail to give an instruction, the
reviewing court would necessarily have to first determine whether it was erroneous. In
other words, to determine whether the claim of error is properly reviewable, the court
must first determine whether there is an error, i.e., perform the merits review in the
second step of the normal appellate process. That review for error necessarily presents a
legal question subject to unlimited review.
"Only after determining that the district court erred in giving or failing to give a
particular instruction would the reviewing court engage in the reversibility inquiry. Given
that it has been utilized for decades, the current definition of clearly erroneous sets up the
test to determine whether the instruction error requires reversal, i.e., whether the
reviewing court is firmly convinced that the jury would have reached a different verdict
had the instruction error not occurred. This assessment of whether there has been
injustice would involve a review of the entire record and a de novo determination. Cf.
State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis
performed de novo), cert. denied 132 S. Ct. 1594 (2012)." Williams, 295 Kan. at 515-16.

We further explained how to conduct the first step of the analysis when the issue is
whether it was clearly erroneous to fail to give a lesser included offense instruction,
stating: "[W]e must necessarily look first at whether it was legally and factually
appropriate for the district court to give a lesser included offense instruction." Williams,
295 Kan. at 521 (citing State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]).

8

When an appellate court considers the legal appropriateness of an instruction
"appellate review is unlimited, as with all questions of law." Plummer, 295 Kan. at 161.
In the context of lesser included offense instructions, an appellate court asks whether the
lesser crime is "legally an included offense of the charged crime." Plummer, 295 Kan. at
161. In this case, the question of whether attempted aggravated criminal sodomy is
legally an included offense of the charged crime of aggravated criminal sodomy is easily
answered. K.S.A. 21-3107(2)(c) states: "A lesser included crime is . . . an attempt to
commit the crime charged." Hence, attempted aggravated criminal sodomy is a lesser
included offense of the charged crime of aggravated criminal sodomy. See State v.
Gaona, 293 Kan. 930, 951-52, 270 P.3d 1165 (2012).

Next, we consider whether an instruction on the lesser included offense was
factually appropriate to the case. In Williams, we explained the analytical standard for
this determination by stating:

"[T]he giving of lesser included crime instructions is not a matter of discretion with the
trial judge. K.S.A. 22-3414(3) directs that 'where there is some evidence which would
reasonably justify a conviction of some lesser included crime . . . , the judge shall instruct
the jury as to the crime charged and any such lesser included crime.'" (Emphasis added.)
Williams, 295 Kan. at 521-22.

We explained this further in Plummer and also stated the standard of review to be
applied on appeal:

"[A] district court does not err in refusing to give a lesser included offense instruction on
a crime which is unsupported by the evidence in that particular case. Such an inquiry is
closely akin to the sufficiency of the evidence review frequently performed by appellate
courts in criminal cases where '"the standard of review is whether, after review of all the
evidence, viewed in the light most favorable to the prosecution, the appellate court is
convinced that a rational factfinder could have found the defendant guilty beyond a
reasonable doubt."' State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (quoting
9

State v. Drayton, 285 Kan. 689, 710, 175 P.3d 861 [2008])." Plummer, 295 Kan. at 161-
62.

To place the application of this standard into the context of this case, we begin
with Breeden's arguments. He suggests that attempted aggravated criminal sodomy
should have been instructed on because Leslie did not know whether L.B. was wearing
underwear, which could have been a barrier to the completion of the crime. Breeden
builds this argument from Leslie's testimony that L.B. pulled his pants up when Leslie
entered the room, but Leslie was not sure if L.B. was wearing underwear. Breeden also
points out that L.B. stated he did not pull his pants up until his mother called for him,
which could indicate that what Leslie actually saw was L.B. in underpants that had never
been pulled down. Further, Leslie testified he was not sure what he saw but he saw
enough to make him believe Breeden was trying to commit a crime. Breeden contends
that a "rational factfinder might [merely] conclude that [Breeden] made an overt act
toward engaging in oral contact, but that L.B.'s underwear and [Leslie's] arrival prevented
the completion of the offense."

These arguments do not point to evidence that would justify a conviction for
attempted aggravated criminal sodomy. Even if we accept Breeden's factual premise that
there is some evidence that L.B. was wearing underwear that was never pulled down, this
does not mean there was merely an attempt. Boys' underwear is constructed so that it
would still have been possible for Breeden to sodomize L.B. while L.B. was wearing
underwear. Further, while Leslie could not verify a completed crime, both L.B. and
Breeden stated that the crime was committed, not attempted. L.B. clearly testified that
Breeden made oral contact with his genitalia. More critically, Breeden admitted in his
recorded statement to law enforcement officers that he made oral contact with the male
genitalia of L.B. for approximately 60 seconds. According to Breeden, he stopped
because he did not think what he was doing was right, and he specifically denied stopping
because he had been interrupted. See K.S.A. 21-3501(2) (defining one form of "sodomy"
10

as the "oral contact of the male genitalia"); State v. Hernandez, 294 Kan. 200, 204, 273
P.3d 774 (2012) ("It is a legal impossibility to both attempt the commission of a crime
and complete the commission of the same crime, because the failure to complete
commission of the crime is an element of attempt.").

Simply put:

"[P]ursuant to the language of K.S.A. 22-3414(3), a lesser included offense instruction is
only required 'where there is some evidence which would reasonably justify a conviction
of some lesser included crime.' Therefore, a district court does not err in refusing to give
a lesser included offense instruction on a crime which is unsupported by the evidence in
that particular case." Plummer, 295 Kan. at 161.

And in this case, the evidence does not support the giving of an instruction on attempted
aggravated criminal sodomy; in other words, an instruction on attempted aggravated
criminal sodomy was not factually appropriate in this case. This means the trial court did
not err by failing to give a lesser included offense instruction regarding attempt, and we
need not discuss the reversibility step of the Williams' analysis.

Breeden also contends that the trial court's failure to instruct on the lesser included
offense violated his constitutional rights to due process and trial by jury under the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution. As the State points
out, Breeden raises this argument for the first time on appeal. Supreme Court Rule
6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) requires an appellant to explain why an issue that
was not presented to the trial court should be considered for the first time on appeal.
Breeden fails to do so. Because the issue was not properly preserved under our rules, we
decline to address the question.



11

ISSUE 2: The Trial Court Did Not Err By Failing to Give a Limiting Instruction

At trial, L.B. testified that Breeden threatened to kill him, and L.B.'s mother
testified L.B. told her Breeden had "punched him in the stomach and threw him on the
bed and held him down and started sucking his [penis]." Breeden claims this testimony is
evidence of prior crimes—criminal threat and battery—that is governed by K.S.A. 60-
455 and this court's caselaw regarding application of that statute. That caselaw holds that
a judge who admits K.S.A. 60-455 evidence "to avoid error, . . . must give a limiting
instruction informing the jury of the specific purpose for admission." State v. Gunby, 282
Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006). After the Gunby decision and before the trial in
this case, K.S.A. 60-455 was amended. L. 2009, ch. 103, sec. 12. The parties to this
appeal do not discuss the effect of these amendments. In fact, the parties do not even
discuss whether K.S.A. 60-455 applies in this case. Even though the parties have ignored
these threshold issues, some discussion is necessary to prevent confusion in future cases
that attempt to apply this decision.
A. Application of K.S.A. 2012 Supp. 60-455 and Gunby in this Case
The starting point is the statute. Because K.S.A. 2012 Supp. 60-455 is identical to
the 2009 version (except for applicable citations to repealed and recodified criminal
statutes), which was in effect at the time of Breeden's trial, we will refer to the 2012
Supplement for ease of discussion. The portions of K.S.A. 2012 Supp. 60-455 relevant to
our discussion provide:
"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident.
12

. . . .
"(d) 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. 2012 Supp. 21-6104, 21-6325,
21-6326 or 21-6418 through 21-6421, 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.
. . . .
"(g) As used in this section, an 'act or offense of sexual misconduct' includes:
(1) Any conduct proscribed by article 35 of chapter 21 of the Kansas Statutes
Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes
Annotated, or K.S.A. 2012 Supp. 21-6419 through 21-6421, and amendments thereto;
(2) the sexual gratification component of aggravated human trafficking, as
described in subsection (a)(1)(B) and (a)(2) of K.S.A. 21-3447, prior to its repeal, or
subsection (b)(1)(B) or (b)(2) of K.S.A. 2012 Supp. 21-5426, and amendments thereto;
(3) exposing another to a life threatening communicable disease, as described in
subsection (a)(1) of K.S.A. 21-3435, prior to its repeal, or subsection (a)(1) of K.S.A.
2012 Supp. 21-5424, and amendments thereto;
(4) incest, as described in K.S.A. 21-3602, prior to its repeal, or subsection (a) of
K.S.A. 2012 Supp. 21-5604, and amendments thereto;
(5) aggravated incest, as described in K.S.A. 21-3603, prior to its repeal, or
subsection (b) of K.S.A. 2012 Supp. 21-5604, and amendments thereto;
(6) contact, without consent, between any part of the defendant's body or an
object and the genitals, mouth or anus of the victim;
(7) contact, without consent, between the genitals, mouth or anus of the
defendant and any part of the victim's body;
(8) deriving sexual pleasure or gratification from the infliction of death, bodily
injury or physical pain to the victim;
(9) an attempt, solicitation or conspiracy to engage in conduct described in
paragraphs (1) through (8); or
(10) any federal or other state conviction of an offense, or any violation of a city
ordinance or county resolution, that would constitute an offense under article 35 of
chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter
13

21 of the Kansas Statutes Annotated, or K.S.A. 2012 Supp. 21-6419 through 21-6421,
and amendments thereto, the sexual gratification component of aggravated human
trafficking, as described in subsection (a)(1)(B) and (a)(2) of K.S.A. 21-3447, prior to its
repeal, or subsection (b)(1)(B) or (b)(2) of K.S.A. 2012 Supp. 21-5426, and amendments
thereto; incest, as described in K.S.A. 21-3602, prior to its repeal, or subsection (a) of
K.S.A. 2012 Supp. 21-5604, and amendments thereto; or aggravated incest, as described
in K.S.A. 21-3603, prior to its repeal, or subsection (b) of K.S.A. 2012 Supp. 21-5604,
and amendments thereto, or involved conduct described in paragraphs (6) through (9)."

Subsections (a) and (b) of 60-455 are substantively identical to the provision in
place before the 2009 amendments; the only alterations are stylistic. The remainder of the
amended statute is new and reflects the response to this court's suggestion that the
legislature should "examine the advisability of amend[ing] K.S.A. 60-455" to specifically
address other crimes evidence in sex crime prosecutions. State v. Prine, 287 Kan. 713,
737, 200 P.3d 1 (2009) (Prine I).

One of the carryover provisions, specifically subsection (a), is applicable to the
threshold question of whether K.S.A. 60-455 has any application in this case. That
subsection limits application of the statute to situations involving "evidence that a person
committed a crime or civil wrong on a specified occasion" to infer a person has the
disposition or a propensity to "commit[] another crime or civil wrong on another
specified occasion." (Emphasis added.) K.S.A. 2012 Supp. 60-455(a). Here, the "other
crimes" of criminal threat and battery occurred on the same occasion as the charged
crime of aggravated criminal sodomy rather than on another occasion. As we noted in
State v. Peppers, 294 Kan. 377, 389, 276 P.3d 148 (2012),"[o]ur decision in Gunby
eliminated res gestae as an independent basis for the admission of evidence. It did not
eliminate the admission of evidence of events surrounding a commission of the crime
under the applicable rules of evidence." We need not unravel the interplay of these
concepts in this appeal, however, because the State has not questioned the applicability of
60-455. Consequently, like the parties to this appeal, we will assume, without deciding,
14

that 60-455 applies. Nevertheless, we point out the unresolved question so that this case
is not cited as support for application of a rule that was not meant to be determined by
this decision.

The other threshold question that is not discussed by the parties is whether the
Gunby analysis applies in light of the 2009 amendments regarding other crimes evidence
in sex crime cases. The significance of this question is revealed by our recent decision in
State v. Prine, 297 Kan. ___, Syl. ¶ 4, ___ P.3d ___ (No. 103,242, filed May 31, 2013)
(Prine II), in which we held the Gunby holding that requires a limiting instruction does
not apply if evidence of acts or offenses of sexual misconduct is admitted under K.S.A.
2009 Supp. 60-455(d) in a sex crime prosecution. In reaching this conclusion we
contrasted the provisions considered in Gunby, which are now found in K.S.A. 2012
Supp. 60-455(a) and (b), with the provisions now found in K.S.A. 2012 Supp. 60-455(d),
stating:

"The basic prohibition contained in the original statute, now subsection (a), is
straightforward: Evidence that a defendant committed a crime or civil wrong on a
specified occasion is generally inadmissible to prove that person's disposition or
propensity to commit the charged crime. As a rule of exclusion, the prohibition on
propensity evidence is based on the principle that such evidence is irrelevant and unduly
prejudicial; and, historically, the rule has been strictly enforced. See State v. Gunby, 282
Kan. 39, 50, 144 P.3d 647 (2006) (citing cases).
"But the legislature's intention to relax the prohibition on evidence of other
sexual misconduct to show propensity, indeed, and 'any matter to which it is relevant and
probative' in sex crime cases is explicit in the statute's new subsection (d)." Prine II, 297
Kan. at ___, slip op. at 21-22.

We further explained the impact of subsection (d)'s broad allowance of other
sexual misconduct evidence to show propensity on the rule requiring a limiting
instruction, stating:

15

"[W]hen evidence was admitted under the [prior version of the] statute, in order to avoid
the jury's consideration of the evidence for prohibited propensity, we required a limiting
instruction listing the material facts in issue for which the evidence could be considered.
See Prine I, 287 Kan. at 724-25. Although neither party challenges the continuation of
this judicially created safeguard, its obsolescence under the amended statute is clear. In a
sex crime prosecution governed by new subsection (d), there remains no reason to tell
jurors to ignore the bearing prior sexual misconduct may have on the defendant's
propensity to commit the charged crime or crimes. If other sex crimes or civil wrongs are
relevant, i.e., material and probative of propensity, the jury may consider them for that.
We no longer need the workaround the limiting instruction hoped to ensure." Prine II,
297 Kan. at ___, slip op. at 25.

Hence, Breeden's argument fails if subsection (d) applies to this case. That
provision, now found in K.S.A. 2012 Supp. 60-455(d) and quoted above, applies only if
(1) "the defendant is accused of a sex offense" and (2) there is "evidence of the
defendant's commission of another act or offense of sexual misconduct." Here, the first
requirement is met because Breeden was accused of a sex offense. But it is questionable
that the second requirement is satisfied because the evidence of other crimes or civil
wrongs that Breeden points to relate to a threat and a nonsexual battery, a punch to L.B.'s
abdomen. See K.S.A. 2012 Supp. 60-455(g) (defining "'act or offense of sexual
misconduct'"). Given that and the fact the State has not suggested to us that K.S.A. 2012
Supp. 60-455(d) applies in this case, we will not apply subsection (d). Instead, our
analysis is governed by the provisions discussed in Gunby and other cases imposing the
requirement of a limiting instruction. Nothing in K.S.A. 2012 Supp. 60-455 or Prine II
suggests a reason for departing from the Gunby holding in cases other than those
controlled by K.S.A. 2012 Supp. 60-455(d). Hence, we hold a trial court judge who
admits K.S.A. 2012 Supp. 60-455(b) evidence must give a limiting instruction informing
the jury of the specific purpose for admission of the evidence in order to avoid error.


16

B. A Contemporaneous Objection to Other Crimes Evidence Not Required to
Preserve Jury Instruction Issue

We turn to the only argument made by the State in response to Breeden's argument
that the trial court erred in failing to give a limiting instruction: The State merely points
out that Breeden failed to object to the admission of this other crimes evidence at trial.
Therefore, according to the State, he failed to preserve an evidentiary issue for appeal.
See K.S.A. 60-404 (verdict or judgment shall not be reversed "by reason of the erroneous
admission of evidence unless there appears of record objection to the evidence timely
interposed and so stated as to make clear the specific ground of objection"); State v. King,
288 Kan. 333, 336, 204 P.3d 585 (2009) (compliance with K.S.A. 60-404 required to
preserve evidentiary issues for appellate review). The State also argues that Breeden
should not be able to "evade" the requirements of K.S.A. 60-404 by framing the issue as
a jury instruction error. According to the State, the failure to make the evidentiary
objection resulted in a waiver of Breeden's argument regarding the instruction as well.
While we agree with the State to some extent, we conclude Breeden can raise an
argument regarding the trial court's failure to give a limiting instruction even if he did not
object to the admission of the other crimes evidence.

To explain more fully, our agreement with the State is limited to concluding that
Breeden waived a very short argument he inserts in his appellate brief. In passing,
Breeden argues the evidence regarding the battery and threat "does not seem relevant to
any disputed material fact. Mr. Breeden's defense was a general denial, so intent and
other issues of mental state were not in dispute." As the State appropriately points out,
this relevancy objection cannot be considered for the first time on appeal. See K.S.A. 60-
404; King, 288 Kan. at 336. Consequently, we will not consider Breeden's evidentiary
argument.

17

Nor would we allow Breeden to merely disguise an evidentiary argument as an
instructional issue. See State v. Rojas-Marceleno, 295 Kan. 525, 538, 285 P.3d 361
(2012) (refusing to consider issue framed as error in failing to give limiting instruction;
concluding arguments were merely a challenge to the admission of other crimes evidence
where argument was that the "'jury should have been instructed to disregard' the evidence
because the evidence was prejudicial and irrelevant").

Here, however, Breeden does more than assert an evidentiary objection or disguise
his evidentiary argument as an instructional issue. Other than this brief reference to
relevancy, Breeden focuses on the trial court's failure to give a limiting instruction as
required by Gunby and subsequent cases. Specifically, Breeden argues the trial court
"should have instructed the jury that evidence had been admitted tending to prove that the
defendant committed crimes other than the crime charged, and that the jury was not to
consider that evidence of Mr. Breeden's propensity to commit a criminal act." Breeden
further argues the trial court's failure to give the instruction was clearly erroneous.

These arguments are distinct from any complaint Breeden may have regarding the
admission of evidence. Because the issues are distinct, we do not agree with the State's
assertion that the failure to object to the admission of the other crimes evidence waives an
appellate argument regarding the failure to give a limiting instruction. There are several
reasons for this conclusion.

First, the Kansas Legislature has distinguished between the failure to object to the
admissibility of evidence and the failure to object to an instruction and has enacted
different preservation rules for the two situations. As we have noted in our summary of
the State's argument, K.S.A. 60-404 requires a party to timely object to the admission of
evidence in order to seek reversal of a judgment based on its erroneous admission. K.S.A.
60-404 does not address jury instructions, however, even if the instruction is related to
evidence that was admitted. Instead, jury instructions are addressed in K.S.A. 22-3414(3),
18

which, as we discussed in the previous issue, provides in part that "[n]o party may assign
as error the giving or failure to give an instruction . . . unless the party objects thereto . . .
or the failure to give an instruction is clearly erroneous." Hence, unlike a failure to object
to evidence, a failure to object to an instruction does not bar appellate review of the
instruction. It does, however, raise the persuasive bar the complaining party must hurdle
on appeal; the appellate court must be convinced the instruction is clearly erroneous. See
State v. Williams, 295 Kan. 506, 510, 515-16, 286 P.3d 195 (2012). Neither K.S.A. 60-
404 nor other statutes support the State's position.

Second, this court has distinguished the two situations when considering K.S.A.
60-455 issues. In evidentiary situations, this court has adhered to the K.S.A. 60-404
mandate. See, e.g., State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012) ("failure to
specifically and contemporaneously object at trial to the admission of the uncharged
crime evidence offered under K.S.A. 60-455 precludes appellate review"). On the other
hand, no objection requirement has been imposed as a condition to preserving an
instructional issue, including one relating to admission of K.S.A. 60-455 evidence.
Rather, in Gunby and in subsequent cases applying Gunby, this court has held that a trial
court is to instruct the jury on the specific purpose for admission "whenever 60-455
evidence comes in." State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008) (citing State
v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 [2007]; Gunby, 282 Kan. at 48, 56-57); but see
Prine II, 297 Kan. ___, Syl. ¶ 4 (when acts or offenses of sexual misconduct are admitted
under K.S.A. 2009 Supp. 60-455[d] in a sex crime prosecution, the trial court need not
give a limiting instruction). These holdings have not been restricted to situations where
60-455 evidence comes in over objection. In fact, in Gunby, we stated that although a
trial court should give a limiting instruction, "the failure to do so, though error, will no
longer demand automatic reversal. Where the complaining party neither requested the
instruction nor objected to its omission, the failure to give the instruction will be
reversible only if clearly erroneous." Gunby, 282 Kan. at 58. Thus, the caselaw of this
court does not support the State's argument that Breeden failed to preserve an appellate
19

issue regarding the failure to give a required K.S.A. 2012 Supp. 60-455(b) limiting
instruction by failing to object to the admission of the 60-455 evidence.

Third, restricting appellate enforcement of our Gunby instruction requirement to
only those cases where a party has objected to the admission of the 60-455 evidence
would be contrary to the overarching purpose of the limiting instruction, which is to
"'eliminate the danger that the evidence will be considered to prove the defendant's mere
propensity to commit the charged crime.'" Reid, 286 Kan. at 503 (quoting Gunby, 282
Kan. at 48). This danger arises even if the K.S.A. 2012 Supp. 60-455(b) evidence is
unequivocally admissible and a party could not state a good-faith objection to the
evidence. In other words, even admissible K.S.A. 2012 Supp. 60-455(b) evidence carries
the potential of suggesting to a juror that the defendant probably committed the charged
act because he or she has committed other crimes or civil wrongs. Our caselaw demands
that jurors be instructed not to adopt this mindset. Cf. Prine II, 297 Kan. ___, Syl. ¶ 3
(interpreting K.S.A. 2012 Supp. 60-455[d] to allow the admission of prior sexual
misconduct as evidence of propensity in certain sex offense prosecutions where relevant
and probative).

Fourth, we decline to adopt a rule that would require a party to assert an objection
to admissible evidence—an objection that would be frivolous—in order to preserve a
request for a K.S.A. 2012 Supp. 60-455(b) limiting instruction.

We, therefore, hold that the right to challenge the lack of a K.S.A. 2012 Supp. 60-
455(b) limiting instruction is not based on whether a party has objected to the admission
of the evidence that is the subject of the instruction, and a failure to object to the
admission of the evidence does not waive the right to raise an issue on appeal regarding
whether the failure to give a limiting instruction was clearly erroneous.

20

In reaching this holding, we are mindful that various Court of Appeals panels have
held that the failure to object to the admission of 60-455 evidence also waives any
appellate issue regarding the failure to give a limiting instruction. See, e.g., State v.
Whetstone, 43 Kan. App. 2d 650, 653-54, 229 P.3d 399 (2010), rev. granted January 20,
2012; State v. Charles, No. 105,148, 2012 WL 2325877, at *8 (Kan. App. 2012)
(unpublished opinion), rev. granted May 20, 2013; State v. Praylow, No. 105,711, 2012
WL 1072762, at *10 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. ___
(April 1, 2013); State v. Case, 104,464, 2011 WL 3891885, at *3 (Kan. App. 2011)
(unpublished opinion), petition for rev. filed October 3, 2011; State v. Hood, 103,378,
2011 WL 2793234, at *6 (Kan. App. 2011) (unpublished opinion), rev. granted January
20, 2012; State v. Gonzalez, No. 99,654, 2009 WL 2144022, at *2 (Kan. App. 2009)
(unpublished opinion), rev. denied 290 Kan. 1098 (2010); State v. Elmore, No. 99,453,
2009 WL 929089, at *4 (Kan. App. 2009) (unpublished opinion), rev. denied 291 Kan.
913 (2010); State v. Rutledge, No. 98,396, 2008 WL 4849123, at *10 (Kan. App. 2008)
(unpublished opinion), rev. denied 288 Kan. 835 (2009); State v. McKinney, No. 96,829,
2007 WL 2915581, at *10 (Kan. App. 2007) (unpublished opinion), rev. denied 286 Kan.
1183 (2008). None of these decisions explain the rationale for conflating the preservation
consideration for the evidentiary and instructional issues. As we have indicated, we find
several reasons for maintaining a distinction and, consequently, we overrule the holdings
in these cases.

C. Failure to Give Limiting Instruction in This Case Was Error But Not
Reversible Error

Hence, we will consider Breeden's argument that the trial court committed clear
error by failing to give a limiting instruction in this case, applying the Plummer and
Williams framework to the analysis.

21

We begin with whether a K.S.A. 2012 Supp. 60-455(b) instruction was legally and
factually appropriate. See Williams, 295 Kan. at 521; State v. Plummer, 295 Kan. 156,
Syl. ¶ 1, 283 P.3d 202 (2012). As our previous discussion revealed, we are assuming due
to the lack of argument that a limiting instruction was required under Gunby and its
progeny.

Given that there was assumed error, we must next review the entire record to
determine if the error is reversible. This requires us to make a de novo determination of
whether we are firmly convinced the jury would have reached a different verdict had a
limiting instruction been given. Williams, 295 Kan. at 515-16; see State v. Trujillo, 296
Kan. 625, 630-31, 294 P.3d 281 (2013) (emphasizing that clearly erroneous inquiry
involves a de novo review of the entire record; holding that there is no practical
difference between Williams' standard and past statements that an instruction is clearly
erroneous only if "'the reviewing court is firmly convinced that there is a real possibility
the jury would have returned a different verdict if the instruction had been given'"; and
rejecting continued use of "real possibility" language because of potential confusion with
harmless error standard in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012).

Applying the standard to the facts of this case, we are firmly convinced that the
jury would not have reached a different verdict had a limiting instruction been given and,
therefore, are not persuaded by Breeden's argument that the failure to give the instruction
was clearly erroneous. In making this argument, Breeden notes the evidence of the threat
was used by the State to explain, at least in part, the reason for L.B.'s initial reluctance to
tell his mother what happened. But Breeden does not explain why, even if a limiting
instruction had been given, the jury would not have been allowed to consider the
evidence for this purpose. Additionally, Breeden complains that the State used the
testimony of both the threat and the battery to paint Breeden "as a violent person, one
who could harm a child because he had threatened violence and backed it up with a
22

punch." While this danger exists, neither of the other crimes points specifically to a
propensity to commit the charged crime of sodomy. Thus, neither of these points causes
us to conclude Breeden was prejudiced. In addition, even if there was some slight
prejudice, we are convinced the impact of that prejudice on the verdict would have been
minimal in light of Breeden's confession.

In light of the overwhelming evidence, including Breeden's confession, we
conclude the failure to give a limiting instruction was not clearly erroneous.

ISSUE 3: Breeden's Constitutional Right to Testify Was Not Violated

Next, Breeden argues for the first time on appeal that his constitutional right to
testify was violated because the record does not show that the trial court advised him of
his right to testify or that he knowingly waived it. The State contends a trial court is not
required to advise a defendant of his or her right to testify or make a record of a waiver of
that right, citing Taylor v. State, 252 Kan. 98, Syl. ¶ 5, 843 P.2d 682 (1992). In addition,
the State argues that the trial transcript shows the court did address Breeden's right to
testify on the record, the court received an affirmative response from Breeden that he
understood this right, and at that time, Breeden and defense counsel were still discussing
whether he would testify.

Like the prior issues, this issue is raised for the first time on appeal. Breeden
recognizes this and, in his appellate brief, argues it is appropriate to consider the issue for
the first time on appeal because it involves a constitutional issue that is "purely [a] legal
question, the consideration of which is necessary to prevent the denial of [Breeden's]
fundamental right to testify." See State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198
(1982) (recognizing three circumstances in which an appellate court may consider a
constitutional issue raised for the first time on appeal). The State does not dispute the
applicability of these exceptions. In addition, in a recent decision filed after the briefs in
23

this appeal were submitted, this court found under similar facts that these arguments
warranted the consideration of the issue for the first time on appeal. See State v.
Anderson, 294 Kan. 450, 465, 276 P.3d 200 (2012) (accepting defense argument that
issue involved defendant's fundamental right to testify and a legal question).

After concluding the argument could be considered, the Anderson court rejected
the argument. In doing so, we reaffirmed our decision in Taylor, in which this court held:

"A trial court has no duty sua sponte to address a silent defendant and inquire
whether he or she knowingly and intelligently waives the right to testify. An express
waiver, on the record, is not necessary because a defendant's conduct provides a
sufficient basis from which to infer that the right to testify is waived. There is a danger
that by asking a defendant if he or she is aware of his right to testify, a trial court may
inadvertently influence a defendant to waive the equally fundamental right against self-
incrimination." Taylor, 252 Kan. 98, Syl. ¶ 5.

Breeden does not present any new persuasive arguments or any reason we should
reexamine our recent decision in Anderson and our long-standing decision in Taylor. We,
therefore, hold Breeden's constitutional right to testify was not violated even if the trial
judge, who advised Breeden of his rights, failed to obtain an explicit waiver of the right
to testify on the record.

ISSUE 4: Breeden's Life Sentence Is Not a Cruel and Unusual Punishment

Next, Breeden argues his hard 25 life sentence imposed under Jessica's Law,
specifically K.S.A. 21-4643(a)(1)(D), constitutes cruel and/or unusual punishment under
the Eighth Amendment to the United States Constitution and § 9 of the Kansas
Constitution Bill of Rights.

24

As with the previous issues, we must first address whether these arguments have
been fully preserved. At the sentencing hearing, Breeden only argued the constitutionality
of his sentence under § 9 of the Kansas Constitution Bill of Rights; he did not argue or
brief a federal constitutional challenge to his sentence before the sentencing court.
Consequently, the court only made findings regarding the state constitutional challenge.
In addition, Breeden only briefly references the Eighth Amendment in his appellate brief
and in those arguments does not explain why we should consider the Eighth Amendment
for the first time on appeal. Hence, he has failed to preserve and present his Eighth
Amendment arguments. See Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38)
(requiring an appellant to explain why an issue not raised in district court should be
considered for the first time on appeal).

Breeden presented and preserved his arguments under § 9 of the Kansas
Constitution Bill of Rights, however. Under that provision, "a punishment may be
constitutionally impermissible, although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity." State v. Gomez, 290 Kan. 858, Syl. ¶ 9,
235 P.3d 1203 (2010). To aid in administering this principle, this court set out three
factors in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), stating:

"(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and
25

"(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense."

Ultimately, one of these factors "may weigh so heavily that it directs the final
conclusion," but "consideration should be given to each prong of the test." State v.
Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).

The first factor is factual and the other two raise legal questions. See State v.
Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010); Ortega-Cadelan, 287 Kan. at 161.
Because there are both legal and factual components, a bifurcated standard of review
applies: An appellate court reviews the factual underpinnings of the sentencing court's
findings under a substantial competent evidence standard and reviews the sentencing
court's ultimate legal conclusion drawn from those facts under a de novo standard. State
v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012).

First Freeman Factor

The first Freeman factor requires us to consider the nature of the offense and the
character of the offender. The sentencing judge in this case, who had presided over the
jury trial, believed that Breeden had committed psychological violence that would have
lifelong consequences for L.B.: "[Y]ou can't ignore the violent nature of the offense if
you include consequences to the victim in the analysis. So I think this was a violent
offense." In addition, the judge found the extent of the culpability to be solely attributable
to Breeden. Finally, the judge considered the penological purposes of the prescribed
punishment and concluded they justified the lifetime sentence.

Breeden disputes the judge's findings, arguing the sexual contact was brief, there
was no physical harm, and evidence suggests L.B. solicited the contact. These arguments
are not persuasive.
26


While the incident was brief and there is no evidence of physical harm to L.B., the
State presented evidence at the sentencing hearing that L.B. has suffered psychological
damage. Among other things, there was evidence that L.B. has to be reassured on a
regular basis that Breeden remains in jail because he fears that Breeden is going to come
get him. Evidence was also presented that L.B. had been receiving regular therapy and
that the incident had caused nightmares. The therapist opined that the full extent of L.B.'s
injury will not be known until he is a teenager.

Additionally, regarding the violent nature of the offense, we note that the
legislature has categorized aggravated criminal sodomy as a sexually violent crime. See
K.S.A. 22-3717(d)(1)(G)(2)(E) (parole or postrelease supervision; meaning of "sexually
violent crime"). Consistent with this conclusion, this court has recognized that "society
has a penological interest in punishing those who commit sex offenses against minors
because they 'present a special problem and danger to society' and their actions produce
'"particularly devastating effects"' on victims, including physical and psychological harm.
[Citations omitted.]" State v. Mossman, 294 Kan. 901, 909, 281 P.3d 153 (2012). Simply
because Breeden could have committed the act more violently does not detract from the
fact that he committed a "sexually violent offense."

The other aspect of Breeden's arguments—that L.B. solicited the contact—has no
legal bearing. L.B. was 10 years old at the time of the incident and Kansas law treats 10-
year-old children as minors and "recognizes them as deserving of the State's protection
and legally incapable of consenting to sexual intercourse." Mossman, 294 Kan. at 910
(citing K.S.A. 21-3502[a]; K.S.A. 21-3520[a]; K.S.A. 21-3522[a]); see State v. Limon,
280 Kan. 275, 297, 122 P.3d 22 (2005) ("Certainly, the State has a significant interest in
prohibiting sex between adults and minors, not only because of the potentially coercive
effect of an adult's influence but also because of concern regarding the minor's ability to
arrive at an informed consent."). Indeed, adults who come into contact with minors are
27

"expected to protect the child from the child's poor judgment, not take advantage of that
poor judgment." Mossman, 294 Kan. at 910. In this case, if Breeden's allegation that L.B.
solicited the contact is true, Breeden, as an adult who was nearly 11 years older than
L.B., should have rejected the child's demands. Accordingly, Breeden's attempt to
minimize the seriousness of his crime fails.

In summary, there is substantial competent evidence to support the sentencing
court's factual findings. Other considerations relevant to the first Freeman factor also
support the sentencing court's legal conclusion and weigh against Breeden's argument.
The State presented evidence of prior sexual misconduct by Breeden when he was
approximately 12 years old and, in his statement to law enforcement officers, Breeden
admitted that he needs help so he will not reoffend. This evidence bears on one of the
penological purposes for the hard 25 life sentence imposed under Jessica's Law: The
legislative history of Jessica's Law reveals an interest in using incarceration as a means of
protecting minors from sexual offenders. See State v. Spencer, 291 Kan. 796, 823-24, 248
P.3d 256 (2011) (quoting House J. 2006, p. 1323). Consistent with the legislative
rationale, the United States Supreme Court has recognized society has "grave concerns
over the high rate of recidivism among convicted sex offenders and their dangerousness
as a class. The risk of recidivism posed by sex offenders is 'frightening and high.'" Smith
v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (quoting McKune v.
Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]), reh. denied 538 U.S.
1009 (2003); see Mossman, 294 Kan. at 909-10.

Hence, the nature of the offense, the degree of danger Breeden presents to society,
the sexually violent nature of his offense, the psychological harm caused to L.B.,
Breeden's culpability for the injury, and the penological purposes of the prescribed
punishment all weigh against Breeden's arguments regarding the first Freeman factor.


28

Second Freeman Factor

Breeden's arguments under the second Freeman factor have a stronger basis but
still fall short of convincing us his sentence is unconstitutional. Under this factor, this
court compares the Jessica's Law sentencing scheme for aggravated criminal sodomy
with sentences for "more serious crimes" in Kansas. In this regard, Breeden argues that if
he had been convicted of intentional second-degree murder in violation of K.S.A. 21-
3402(a), the presumptive sentencing range would have been 165-155-147 months'
imprisonment instead of life imprisonment. See K.S.A. 21-4704(a). He contends that
punishing his conduct more severely than second-degree murder is shocking and
outrageous.

The State acknowledges there are other serious crimes in Kansas, including
second-degree murder and some other homicides, with less severe sentences under the
Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. The State points out, however,
that there are other nonhomicide crimes, including rape of an adult in violation of K.S.A.
21-3502 and aggravated kidnapping in violation of K.S.A. 21-3421, that also have
guidelines sentences that are equal to or longer than second-degree murder in violation of
K.S.A. 21-3402, voluntary manslaughter in violation of K.S.A. 21-3403, or involuntary
manslaughter in violation of K.S.A. 21-3404. The State contends that the legislature
recognized child sex crimes "as uniquely deserving of heightened punishments."

Similar arguments have been previously considered by this court. In Woodard,
where the defendant had been sentenced to a hard 25 life sentence under Jessica's Law for
aggravated indecent liberties with a child, we rejected the same argument that the
Jessica's Law sentence was unconstitutionally disproportionate to certain homicide
crimes, stating:

29

"This argument suffers from several flaws. In the first place, it assumes that
murderers necessarily receive more lenient sentences in Kansas than violators of Jessica's
Law. This is not the case. In fact, the Kansas Criminal Code sets out a list of
transgressions that constitute capital murder, which is an off-grid offense. K.S.A. 21-
3439. Capital murder is subject to punishment by death. K.S.A. 21-4624. The penalty for
homicide in Kansas may thus be much more severe than the penalties under Jessica's
Law. See K.S.A. 21-4638; K.S.A. 21-4643. The fact that the penalty for certain
categories of homicide may be less severe than the penalties for other, nonhomicide
crimes does not automatically render the penalties for the nonhomicide crimes
unconstitutional. There is no strict linear order of criminal activity that ranks all
homicides as the most serious crimes and all nonhomicide crimes as less serious, with the
corresponding penalties necessarily ranking in diminishing durations of imprisonment.
"Furthermore, as the State points out, Jessica's Law is not the only Kansas statute
that provides for more severe penalties for nonhomicide crimes than for certain categories
of homicide. Compare, e.g., rape, K.S.A. 21-3502, and aggravated kidnapping, K.S.A.
21-3420, which are severity level 1 offenses, with reckless second-degree murder, K.S.A.
21-3402(b), which is a severity level 2 offense." Woodard, 294 Kan. at 723-24.

In Woodard, we concluded the Jessica's Law penalty for aggravated indecent
liberties with a child was not disproportionately harsh when compared to punishments for
other offenses in Kansas. Woodard, 294 Kan. at 724. Recently, in State v. Seward, 296
Kan. 979, 988, 297 P.3d 272 (2013), after discussing the holding in Woodard, we held:
"This holds true for the rape [of an 11-year-old child] and aggravated criminal sodomy
[of the same child] for which Seward pleaded guilty; both of these crimes are at least as
serious as aggravated indecent liberties." We similarly reject Breeden's argument.

Third Freeman Factor

Under the third Freeman factor, this court compares the penalty under Jessica's
Law for aggravated criminal sodomy with the penalties for the same offenses in other
30

jurisdictions. Freeman, 223 Kan. at 367; see Seward, 296 Kan. at 988 (clarifying that the
comparison must be between the "same" offenses, not "similar" offenses).

In this case, the sentencing court found that "there are facts that demonstrate that
our penalty is comparable with punishments in other jurisdictions for this offense." This
conclusion flowed from Breeden's concession that "[i]t appears that many states have
adopted some form of 'Jessica's Law' imposing similar punishments as the sentences at
issue . . . . This third factor, therefore, weighs in favor of the lifetime sentences."

Consistent with his position before the sentencing court, in his appellate brief
Breeden does not present an argument that his sentence is disproportionate to sentences
imposed for the same offense in other states. Thus, any challenge to the third Freeman
factor before this court is deemed waived. See Gomez, 290 Kan. 858, Syl. ¶ 8 (to preserve
an issue for appellate review, the party must present an argument; otherwise, the
argument will be deemed abandoned).

Because none of the Freeman factors weighs in favor of Breeden's arguments, we
hold that his life sentence with a mandatory minimum term of 25 years under K.S.A. 21-
4643(a)(1)(D) does not constitute cruel and/or unusual punishment under § 9 of the
Kansas Constitution Bill of Rights.

ISSUE 5: The Sentencing Court Erred in Imposing Lifetime Postrelease Supervision

Breeden's final issue on appeal is that the sentencing court erred by entering a
journal entry that stated Breeden was subject to lifetime postrelease supervision rather
than reflecting the sentence announced by the court during the hearing, which was a
sentence of "life imprisonment with no possibility of parole until you have served 25
years." As the State concedes, this court has previously decided this issue in Breeden's
favor, concluding that "'[a]n inmate who has received an off-grid indeterminate life
31

sentence can leave prison only if the [Kansas Prisoner Review] Board grants the inmate
parole. Therefore, a sentencing court has no authority to order a term of [lifetime]
postrelease supervision in conjunction with an off-grid indeterminate life sentence.'" State
v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326,
Syl. ¶ 2, 263 P.3d 786 [2011]).

Because the journal entry in this case inaccurately reflected the announced
sentence and recorded an illegal sentence, we vacate the journal entry and remand with
directions to enter a nunc pro tunc order that conforms the journal entry to the announced
sentence. See K.S.A. 22-3504(1) (correction of sentence); State v. Brown, 295 Kan. 181,
215-16, 284 P.3d 977 (2012) (providing same relief for same error); Abasolo v. State, 284
Kan. 299, 304, 160 P.3d 471 (2007) ("where the sentence announced from the bench
differs from the sentence later described in the journal entry, the orally pronounced
sentence controls").

Conviction affirmed, sentence affirmed in part and vacated in part, and case
remanded with directions.