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.
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.
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.
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.
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.
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
"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 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.
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 ).
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. ...