State v. Hamilton

303 P.3d 727

STATE of Kansas, Appellee,

v.Charles O. HAMILTON, Appellant.

No. 108,078.

Court of Appeals of Kansas.

July 19, 2013.

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.” (...