State v. Breeden, 297 Kan. 567

Breeden was convicted of aggravated criminal sodomy of a 10-year-old victim and sentenced to life with a minimum 25-year term under Jessica’s Law.
He appealed alleging five issues: no lesser-included instruction for attempted aggravated criminal sodomy; no limiting instruction for 60-455 evidence; improper waiver of right to testify; constitutional challenges to the hard 25 life sentence; and an improper journal entry reflecting lifetime postrelease supervision.
The State argued Breeden confessed, which felled the basis for a lesser-included instruction; limiting instruction was required under Gunby; waiver of the right to testify did not require on-record waiver; the sentence is constitutional; and the journal entry error required correction.
The court affirmed the conviction and hard 25 life sentence, but vacated and remanded to correct the journal entry to remove lifetime postrelease supervision.
Key factual development included the March 22, 2009 incident, Leslie’s observations, Breeden’s recorded confession, and the sentencing hearing where Jessica’s Law terms were imposed.
The appellate court followed Williams, Plummer, Gunby, Reid, and Prine line of cases to analyze preservation, admissibility of other-crimes evidence, and limits on instructional error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lesser included instruction for attempted aggravated criminal sodomy	Breeden: evidence supports attempt; instruction required	State: confession defeats likelihood of lesser offense	Instruction not warranted; no error
Limiting instruction on K.S.A. 60-455 evidence	Breeden: court should limit 60-455 evidence	State: preserved; no need to object to admission	Limiting instruction required; error but not reversible
Breeden’s right to testify and waiver on record	Breeden: right not affirmatively waived on record	Taylor/Anderson permit implied waiver	No violation; waiver inferred; no explicit on-record waiver required
Constitutionality of hard 25 life sentence under Eighth Amendment	Breeden: sentence unconstitutional	§9 challenge preserved; Freeman factors favor upholding	Not unconstitutional under §9; factors weigh against Breeden; no federal issue preserved
Lifetime post-release supervision in journal entry	Journal entry inaccurately imposed lifetime postrelease	Off-grid life sentence cannot include postrelease supervision	Vacate journal entry; remand for nunc pro tunc entry reflecting announced sentence

State v. Williams, 295 Kan. 506 (2012) (framework for reviewing unpreserved instructional error; unlimited legal review; de novo reversibility analysis)
State v. Plummer, 295 Kan. 156 (2012) (test for lesser-included instructions; sufficiency-based analysis)
State v. Gunby, 282 Kan. 39 (2006) (holding that 60-455 evidence requires a limiting instruction to target its purpose)
State v. Reid, 286 Kan. 494 (2008) (cites Gunby; supports limiting instruction requirement for 60-455 evidence)
State v. Prine, 287 Kan. 713 (2009) (Prine I; discussed amendments to 60-455 limiting instruction)
State v. Anderson, 294 Kan. 450 (2012) (accepts first-principles consideration of right to testify when raised on appeal)