Opinion
No. 108,078.
2013-07-19
STATE of Kansas, Appellee, v. Charles O. HAMILTON, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
After serving prison time for a federal conviction related to similar events, Charles O. Hamilton was convicted by a Kansas jury in 2011 of three counts of sexual exploitation of a child, two counts of aggravated burglary, two counts of theft, and one count of burglary. Twelve years earlier, Hamilton broke into two homes in Derby where he took photographs of young children posing both in the nude and while wearing diapers. In addition, Hamilton stole family photographs and children's underwear from the homes. Because we find that the district court committed no reversible error, we affirm Hamilton's convictions and sentence.
Facts
Around 1 a.m. in late February 1999, Michele Chidester was awakened in her home by the sound of barking dogs. Looking out of her bedroom window, she saw a car parked on the street. According to Chidester, it was unusual for cars to park in the street in her neighborhood because of the size of the driveways. When Chidester awoke the next morning, the car was gone.
The following night, Chidester was again awakened by the sound of barking dogs. When she looked out her window, she saw the same car parked on the street that had been there the previous night. This time, however, Chidester saw a man run from the car to the open garage door of the house across the street. Chidester called 911, and the police arrived shortly thereafter to look around. Although the police did not locate the driver, they recorded the suspicious car's Maryland license plate number: DPA 263. After the police had left, Chidester saw someone run back to the car and drive away.
On March 19, 1999, a man brought three rolls of film to the photo department of a Dillon's grocery store in Derby. As a store employee developed the pictures, she observed that there were images of a seemingly unhappy young boy who was naked from the waist down in some photos and posed in unnatural positions. The employee made an extra copy of the prints and gave them to the district manager. After the man picked up the photographs, the district manager watched him get into his car and drive to a secluded area at the back of the store. According to the district manager, the man looked at the prints for about 15 minutes and it appeared that he may have been masturbating.
The district manager reported the car's plate number—which matched the number that the Derby police department previously recorded from the suspicious car parked near Chidester's home—to the head of security at Dillon's. In turn, the head of security contacted Detective Tom Prunier, who researched the Maryland plate number. In doing so, he discovered that the license plate was registered to Charles O. Hamilton, who resided at Andrews Air Force Base near Washington, D.C. Detective Prunier then contacted law enforcement in Prince George County, Maryland.
Around the same time, Hamilton was arrested in Maryland. At the time of his arrest, Hamilton was hiding in a dryer in a house he had broken into. Hamilton had in his possession a camera, a flashlight, and latex gloves. A ski mask that belonged to Hamilton was also found in the house. In Hamilton's car, officers found a variety of items, including covers to pornographic videos, baby diapers, adult diapers, high-school yearbooks, baby wipes, pet supplies, camping supplies, and clothes.
Moreover, officers found the prints developed in Derby in Hamilton's car wrapped in children's underwear. Some of the photos had names of Derby resident's on the back. Many of the prints depicted a 4–year–old boy either naked from the waist down or wearing diapers. And it appeared that some of the photos were taken at different times because the furniture in the background was arranged differently.
Officers in Maryland also searched a storage unit rented by Hamilton that contained both adult and children's diapers. In the storage unit, law enforcement officers found cardboard boxes filled with approximately 2500 used and unused baby and adult diapers. Some of the diapers had names and dates written on them. Additionally, the storage unit contained videotapes entitled “First Steps,” “Potty Training,” “Toddlers at Work,” “First Six Months,” and “Terrible Twos.”
Hamilton told Officer Sean Chaney of the Prince George County Maryland Police Department that he had a compulsion to go inside homes and steal pictures from family photo albums. He also admitted that he had an attraction to diapers. Furthermore, Hamilton admitted that he had been in two houses in Derby, one on three different occasions where he took pictures of a young boy in different poses wearing diapers.
Hamilton informed Officer Chaney that he bought diapers at a convenience store in Derby and broke into the child's home at night. He undressed the boy and took pictures of him in the nude. Hamilton then put diapers on the boy and took more pictures. To ensure the flash from his camera did not wake anyone else in the house, Hamilton covered the crack under the door with a blanket. All totaled, Hamilton took about 120 photos of the boy—which were part of a collection of 6,000 photos he had taken—and he also took the child's diapers and underwear.
Meanwhile in Kansas, after receiving a picture of Hamilton from Andrews Air Force Base, Detective Prunier made a photo lineup to take to the district manager and the photo department employee at Dillon's. Both immediately picked Hamilton out as the man who had the photographs of the young boy developed. Detective Prunier then met with the family identified from the photos, and the parents looked at photos Hamilton had developed at Dillon's and identified their son. The parents told Detective Prunier that although they had noticed pry marks around some of their windows, they did not think to report them to the police. Additionally, after looking through their family photo albums, the parents noticed that numerous pictures were missing.
Detective Prunier also discovered that Hamilton's ex-wife lived in Derby. She revealed that Hamilton had come to stay with her from about December 1998 to March 1999. In speaking with the ex-wife's neighbors, another set of parents told Detective Prunier that their young son had said that a man had come into his room at night wearing a ski mask. After looking, these parents also noticed that numerous pictures were missing from their family photo albums.
Although Hamilton was charged in Kansas on November 30, 1999, he was convicted of production of a visual depiction of a minor engaged in sexually explicit conduct in federal court in 2001 and spent the next 8 years in federal prison. As such, Hamilton's jury trial in Kansas did not begin until September 27, 2011. In the Kansas trial, the witnesses included Hamilton's ex-wife, law enforcement officers from Maryland and Kansas, and the parents residing at the Derby homes. At the conclusion of the evidence, the jury found Hamilton guilty of two counts of aggravated burglary, one count of burglary, three counts of sexual exploitation of a child, and two counts of theft.
The district court then asked the jury to make a special finding as to whether the two aggravated burglaries and one burglary were sexually motivated. During these proceedings, in addition to Hamilton's ex-wife's trial testimony that Hamilton used diapers to become sexually aroused, the State presented further evidence about Hamilton's arrest and the items seized during the searches of his car and storage facility. After hearing the additional evidence, the jury found—beyond a reasonable doubt—that Hamilton's burglaries were sexually motivated.
Sentencing was delayed in order to obtain appropriate mental and physical evaluations of Hamilton as part of his presentence investigation report. Because evaluators found nothing that would preclude Hamilton from receiving a routine sentencing, the court proceeded. On April 20, 2012, the district court sentenced Hamilton to a total term of imprisonment of 489 months. Hamilton timely appealed his convictions and sentence.
Analysis
Issues Presented
This appeal requires us to resolve four issues. First, whether Hamilton clearly and unequivocally asserted his right to self-representation. Second, whether sufficient evidence supported one of the counts of misdemeanor theft. Third, whether the jury convicted Hamilton of an alternative means crime. Fourth, whether Hamilton's sentence violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Right to Self-representation
Hamilton contends that the district court ignored his request to represent himself at trial. As such, Hamilton argues he is entitled to a new trial because the denial of the Sixth Amendment right to self-representation is structural error. Our review over the scope of a defendant's right to counsel and its counterpart—the right to self-representation—is unlimited. See State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010).
The Sixth Amendment to the United States Constitution guarantees to a defendant the right to self-representation. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (reaffirming that a defendant has a Sixth Amendment right to conduct his or her own defense). “A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel.” (Emphasis added.) Jones, 290 Kan. at 373, Syl. ¶ 2. Moreover, courts “must indulge every reasonable presumption against waiver of the right to counsel.” State v. Rollins, 9 Kan.App.2d 487, Syl. ¶ 3, 4, 489, 681 P.2d 687 (1984); State v. Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006).
Here, Hamilton claims he asserted his right to represent himself by sending a letter to the district judge requesting the dismissal of his case. In the letter, he said he was “questioning the actions of the State attorneys and Governors offices for Kansas and North Carolina regarding [his] so-called capture....” And in concluding his letter, Hamilton stated: “How many times are Constitutional rights under the so-call laws of this country going to be set aside under this case which has been on-going for eleven years now? Furthermore, if this wrangling is permitted to continue I would like permission to act as my own defense (partially).”
Hamilton's statement about representing himself— partially—was not only equivocal but also conditional; “ if this wrangling is permitted to continue.” It is unclear what Hamilton was referring to when he used the word “wrangling,” but it appears to be a reference to his claim that his constitutional rights had been violated by the various jurisdictions that were pursuing charges against him related to sexual exploitation of children. Hence, it appears that he may have desired to reserve his right to partially represent himself as to perceived violations of his constitutional rights.
At no point did Hamilton indicate that he wanted to defend himself at trial, and multiple attorneys assisted him with his case after he sent the letter to the district judge. In fact, he never raised the issue of self-representation again until he filed this appeal. Accordingly, we do not find that Hamilton clearly and unequivocally invoked his right to represent himself at trial.
Furthermore, because Hamilton never advised the court that the conditions of his partial request for self-representation had been met, we assume he waived his right to self-representation. See State v. McCormick, 37 Kan.App.2d 828, 839, 159 P.3d 194 (2007) (“[B]ecause the right of self-representation frequently conflicts with the right to representation by competent counsel, a court must adopt a presumption against waiver of the right to counsel, and a waiver of the right to represent oneself may be assumed by the failure to unequivocally assert the right.”). Likewise, “[o]nce a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” McKaskle, 465 U.S. at 183. Here, Hamilton's initial conditional request was only to partially represent himself, which indicated his intent to continue to be represented by counsel in some capacity.
It is also important to note that Hamilton was able to raise his claim regarding double jeopardy—which appears to have been his primary constitutional concern—during his trial outside of the presence of the jury. The district judge heard Hamilton's arguments, considered them, and denied them. The judge then asked if there were any other issues that needed to be discussed before bringing the jury back into the courtroom. Hamilton not only failed to mention anything about representing himself, but he had also advised the judge that he had been working with counsel on the double jeopardy issue.
Considering Hamilton's acquiescence to the assistance of counsel, as well as the equivocal nature of his request to partially represent himself, we find no indication that the district court failed to respect Hamilton's request to partially exercise his right to self-representation. In fact, Hamilton clearly stated at sentencing: “I was able to assist in my own defense.” We, therefore, conclude that the district court did not violate Hamilton's Sixth Amendment right to self-representation, nor did it commit structural error that would entitle Hamilton to a new trial.
Sufficiency of Evidence of Theft Less than $500
One of the charges on which the jury convicted Hamilton was misdemeanor theft of property valued at less than $500 under K.S.A. 21–3701(b)(3) (Furse 1995). Specifically, the jury found that Hamilton had stolen family photographs. Because the owner of the photos simply testified that they were “priceless” to him and his family, Hamilton claims there was no evidence of the actual value to support the conviction. We disagree.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). This court has held that for misdemeanor criminal damage to property, this court can “take judicial notice of the arithmetic fact that a ‘value of less than $500’ ... includes the value of $0.” State v. Carter, 35 Kan.App.2d 327, 332, 130 P.3d 135 (2006)rev denied 282 Kan. 792 (2006); see also State v. Mohr, 10 Neb.App. 442, 450, 632 N.W.2d 382 (2001) (“While proof of ‘some’ value would be insufficient to sustain a shoplifting conviction of between $200 and $500, proof of ‘some’ value or ‘intrinsic value’ is all that is necessary to establish the element of value in a shoplifting prosecution for a Class II misdemeanor, that is, a value of under $200.”).
Similar to misdemeanor criminal damage in Carter, Hamilton's conviction for misdemeanor theft only required a finding that the photos were worth less than $500. Although testimony established that the photos were “priceless” rather than a specific monetary value, Hamilton concedes the photos “did actually have inherent value.” Accordingly, even without testimony as to the actual value of the photos, viewing the evidence in the light most favorable to the State, we find there was sufficient evidence of a value less than $500 on which a jury could rely to support Hamilton's conviction for misdemeanor theft.
Definition of “Sexually Explicit Conduct”
The jury convicted Hamilton of 3 counts of sexual exploitation of a child as defined by K.S.A.1998 Supp. 21–3516(a). For 2 of the counts, the district judge instructed the jury that to find Hamilton guilty it had to find that he “used E.F. under the age of 16 to engage in sexually explicit conduct for the purpose of promoting a performance.” (Emphasis added.) Similarly, in the other count, the judge instructed the jury that in order to find Hamilton guilty it must find that he “possessed any visual depiction—photograph—where such visual depiction of a child under 16 years of age is shown engaging in sexually explicit conduct ... with the intent to arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child or another.” (Emphasis added.)
In instruction 15, the jury was provided with the following definition of “sexually explicit conduct” under K.S.A.1998 Supp. 21–3516(b)(1):
“ ‘Sexually explicit conduct’ means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sadomasochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.”
Hamilton argues on appeal that the statutory definition of “sexually explicit conduct” created multiple alternative means to commit the crime sexual exploitation of a child. We exercise unlimited review over the legal question concerning whether the legislature intended to statutorily create alternative means. State v. Brown, 295 Kan. 181, 193–94, 284 P.3d 977 (2012). In doing so, we find that the definition of the statutory term “sexually explicit conduct” used in the jury instruction did not create alternative means, so we need not address Hamilton's sufficiency arguments. See Brown, 295 Kan. at 184. (noting that before analyzing sufficiency, the reviewing court must determine if alternative means were charged).
Legislative intent is the touchstone to statutory interpretation. Brown, 295 Kan. at 193. And for alternative means cases the structure of a statute is a key to that intent. 295 Kan. at 200. The legislature creates alternative means by listing two or more “alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements.” 295 Kan. at 199–200. But when the legislature merely describes “a factual circumstance that would prove the crime,” it has described options within a means rather than an alternative means. 295 Kan. at 200.
The language of K.S.A.1998 Supp. 21–3516 is as follows:
“(a) Sexual exploitation of a child is:
(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age to engage in sexually explicit conduct for the purpose of promoting any performance;
(2) possessing any film, photograph, negative, slide, book, magazine or other printed or visual medium or any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk in which a visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another;
(3) being a parent, guardian or other person having custody or control of a child under 18 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2); or
(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, knowing the character and content of the performance.
“(b) As used in this section:
(1) ‘Sexually explicit conduct’ means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sadomasochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.
(2) ‘Promoting’ means procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:
(A) For pecuniary profit; or
(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or another.
(3) ‘Performance’ means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation.
(4) ‘Nude’ means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered.
“(c) Sexual exploitation of a child is a severity level 5, person felony.
“(d) This section shall be part of and supplemental to the Kansas criminal code.”
Here, the structure of K.S.A.1998 Supp. 21–3516 provides evidence of the legislature's intent. Subsection (a) establishes four distinct means of committing the crime sexual exploitation of a child. See K.S.A.1998 Supp. 21–3516(a)(1)–(4). The statute then moves to subsection (b) where it provides definitions for the words “as used in this section.” See K.S.A.1998 Supp. 21–3516(b). Subsection (b)(1) defines “sexually explicit conduct” as used in subsection (a). The deliberate separation of the crimes from the definitions indicates that the legislature intended for subsection (b) to describe multiple factual circumstances that would prove a distinct means established under subsection (a)—options within a means. See State v. Ultreras, 296 Kan. 828, 849, 295 P.3d 1020 (2013).
Notably, “there is a distinction between statutes that define the elements of a crime and statutes that define or elaborate upon the terms used to define the crime. Specifically, ... ‘definition statutes that merely elaborate on the elements rather than define the crime do not create additional alternative means of committing an offense. [citations omitted.]’ “ State v. Aguirre, 296 Kan. 99, 109, 290 P.3d 612 (2012). In this case, counts 2 and 4 instructed on sexual exploitation of a child by the means created by K.S.A.1998 Supp. 21–3516(a)(1), i.e., using E.F. to engage in sexually explicit conduct for the purpose of promoting a performance. As to this distinct means, “using” was the actus reus and “for the purpose of promoting a performance” was the mens rea. Count 6 instructed on the distinct means created by K.S.A.1998 Supp. 21–3516(a)(2), i.e., possessing a visual depiction of E.F. engaged in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of himself, the child or another. “Possessing” was the distinct actus reus of that crime. While “with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of [himself], the child or another” was the mens rea.
In defining “sexually explicit conduct,” the district court did not instruct the jury on a different actus reus or mens rea. It simply informed the jury of different factual circumstances that would prove that Hamilton either used E.F. to engage in sexually explicit conduct to promote a performance or that he possessed a visual depiction of E.F. engaged in sexually explicit conduct to satisfy someone's sexual desires. In other words, the district court instructed the jury on options within the particular means charged and not alternative means. See Brown, 295 Kan. at 198–99; see also State v. Rojas–Marceleno, 295 Kan. 525, 547–48, 285 P.3d 361 (2012). Apprendi Issue
Finally, Hamilton contends that the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He claims that prior convictions used to enhance his guideline sentence needed to be proven to a jury beyond a reasonable doubt. Hamilton concedes, however, that the Kansas Supreme Court decided this issue against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and he wishes to preserve the issue for further review.
Additionally, Hamilton argues his rights under Apprendi were violated by sentencing him to the aggravated sentence without proving the aggravating factors to a jury beyond a reasonable doubt. Again, he concedes that the Kansas Supreme Court has decided this issue against him in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008), but he wishes to preserve the issue for further review. We are duty bound to follow precedent from the Kansas Supreme Court unless there is some indication it is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011)rev. denied May 4, 2012. Because there is no indication the Kansas Supreme Court is departing from its previous positions, Ivory and Johnson foreclose Hamilton's request for relief. See State v. Prine, No. 103,242, 297 Kan. ––––, ––– P.3d –––– (2013) (expressly declining to depart from Ivory and Johnson ).
Affirmed.