State v. Hamilton

• Decision Date: 14 December 2010
• Docket Number: No. WD 70790.,WD 70790.
• Citation: 328 S.W.3d 738
• Parties: STATE of Missouri, Respondent, v. Alphonso William HAMILTON, Appellant.
• Court: Missouri Court of Appeals

328 S.W.3d 738

STATE of Missouri, Respondent,

v.Alphonso William HAMILTON, Appellant.

No. WD 70790.

Missouri Court of Appeals, Western District.

Dec. 14, 2010.

Alexa I. Pearson, Columbia, MO, for Appellant.

Chris Koster, Jefferson City, MO, for Respondent.

Before KAREN KING MITCHELL, P.J., JAMES EDWARD WELSH, and MARK D. PFEIFFER, JJ.

JAMES EDWARD WELSH, Judge.

Alphonso William Hamilton appeals the circuit court's judgment convicting him of domestic assault in the third degree, resisting arrest, and assaulting a law enforcement officer. He claims that the circuit court erred in enhancing his domestic assault conviction from a class A misdemeanor to a class D felony because he did not have the requisite number of prior convictions for enhancement. He also claims that the circuit court plainly erred in not ordering a mistrial sua sponte when the State, during its closing argument, commented upon his failure to produce witnesses. We affirm.

The sufficiency of the evidence to support Hamilton's convictions is not in dispute. The evidence, in the light most favorable to the judgment, established that Hamilton and the victim, K.K., had been living together for two years as of June 14, 2008. On that day, K.K. went to work while Hamilton went to a large party at his cousin's house. Hamilton arrived at the party at about 11:00 a.m. and began drinking beer shortly thereafter.

After K.K. got off work that evening, she met Hamilton at the party at about 7:30 p.m. Hamilton gave K.K. twenty dollars. A couple of hours later, K.K. noticed that Hamilton was flirting with another woman. K.K. was uncomfortable and upset by Hamilton's behavior, so she told Hamilton that she was going home. After K.K. got into her car, Hamilton yelled at her, got into the car with her, and told her, "Okay. We'll just go home."

On the way home, Hamilton said that he wanted to go back to the party. K.K. refused to drive him back to the party and told him that if he wanted to go back, he could find his own ride. Hamilton became upset and started yelling at her.

When they arrived home, K.K. went into their bedroom and began to pack Hamilton's things because she was tired and "fed up" with their relationship. Hamilton came into the bedroom and turned off the lights. Hamilton then grabbed K.K. from behind, threw her on the bed, and continuously punched her in her face with his closed fist for five to ten minutes. K.K.'s nose started bleeding.

After Hamilton stopped hitting K.K., he told her to give him back his twenty dollars. K.K. got up and went to another room to find her purse. At first, she could not find the money, so Hamilton told her to go look in her car for it. Before K.K. went to her car, she saw her car keys lying on the floor by her feet. Thinking thatshe could just drive away when she went to her car to look for Hamilton's money, K.K. reached down and tried to pick up the keys. Hamilton grabbed the keys before she could reach them. He then threw K.K. up against the kitchen counter and said, "How dare you try to leave." Hamilton hit K.K. a few more times in her face with his closed fist. When he stopped hitting her, K.K. went to the car but did not find the money. She came back in the house, found the twenty dollars, and gave it to Hamilton. Hamilton took K.K.'s car keys and, as he was leaving, told her that if she wanted her car, she would have to find him. Hamilton left but did not take K.K.'s car.

After Hamilton left, K.K. went to her neighbor's home. The neighbor had already called the police. K.K.'s eyes were swollen almost completely shut, and her lip and cheeks were swollen. Her lip was also cut. She had big bumps on both sides of her forehead, bruises on her forehead, scratches on her face, and a bloody nose. When the police arrived, they photographed K.K.'s injuries and took her statement about the incident.

Meanwhile, Officer Sean Dutton and Sergeant Chris Kelley were dispatched to arrest Hamilton. Dutton and Kelley went to the party at Hamilton's cousin's house and found Hamilton there. The officers asked Hamilton what happened at his and K.K.'s house earlier in the evening. Hamilton said that he was never at his house and that he had been at the party the whole night. Dutton told Hamilton that he was under arrest. As Dutton was handcuffing Hamilton, Hamilton said, "This is bullshit." Hamilton also told Dutton that there were "500 witnesses" who could tell the officers that he had been at the party all night.

As Dutton walked Hamilton to the police car, Hamilton pulled away from Dutton, turned around, and kicked Dutton in the groin. When some of the people from the party began to approach the officers and Hamilton, Kelley focused on keeping the crowd back while Dutton tried to get Hamilton under control. As the crowd began to get agitated, Dutton and Kelley became concerned for their safety.

Dutton eventually got Hamilton on the ground and instructed him to stop resisting arrest. Hamilton yelled and cursed at Dutton. Dutton assisted Hamilton in standing up and escorted him to the patrol car. As they were walking to the car, Hamilton told Dutton that, if he had had a gun, he would have shot Dutton when he saw Dutton approaching. Hamilton also told Dutton that, if he saw Dutton on the street, he would shoot him. At one point, Hamilton told Dutton that he would assault Dutton if he saw him and that Dutton could quote him on that. Twice, Hamilton tried to spit on Dutton. Much of Hamilton's interaction with Dutton was recorded by Dutton's body microphone.

The State subsequently charged Hamilton with the class D felony of domestic assault in the third degree, in violation of section 565.074, RSMo 2000; the class A misdemeanor of resisting arrest, in violation of section 575.150, RSMo Cum.Supp.2008; and the class A misdemeanor of assault of a law enforcement officer in the third degree, in violation of section 565.083, RSMo Cum.Supp.2008.

While Hamilton was in jail awaiting trial on these charges, he wrote K.K. a letter in which he told her:

I know you are scared of me as well, and you want me out of your life as much as you still want me. At least I hope so.... [K.K.] I don't deserve you anymore. But I'm willing to do anything to salvage some kind of relationship.... I'm so sorry [K.K.]. And I truly believe that after all we've been through I deserveanother chance. I will do individual counceling [sic] and hopefully you would go to couples therapy with me.... I know you're still mad at me or probly [sic] hate me. But there's got to be some love hideing [sic] in your heart.... I've said it enough. I fucked up. But we can make it work. I won't hold anything over your head. I put myself in hear [sic].... I hope you have it in your heart to still love me and forgive me.

A jury trial was held in February 2009. The jury found Hamilton guilty on all three charges. The court sentenced Hamilton to concurrent terms of three years imprisonment for domestic assault, six months in jail for resisting arrest, and six months in jail for assaulting a law enforcement officer. Hamilton appeals.

In his first point, Hamilton claims that the circuit court erred in enhancing his third-degree domestic assault conviction from a class A misdemeanor to a class D felony because he did not have the requisite number of prior convictions for enhancement under section 565.074.3. He argues that section 565.074.3 is ambiguous as to whether it requires two or three prior convictions for enhancement. Hamilton asserts that, pursuant to the rule of lenity, the court should have interpreted the statute to require the State to prove that he had three prior domestic assault convictions. Because the State proved only that he had two prior convictions, Hamilton argues that the court should not have enhanced the offense from a misdemeanor to a felony. Hamilton did not raise this claim in the circuit court; hence, review, if any, would be for plain error.

Review for plain error under Rule 30.20 involves a two-step process. State v. Brink, 218 S.W.3d 440, 448 (Mo.App.2006). First, we must determine whether the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted. Id. "Errors are plain if they are evident, obvious, and clear." Id. "In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20." Id. "If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." Id. If the circuit court improperly enhanced a sentence, a manifest injustice has occurred, and plain error review is appropriate. State v. Dixon, 24 S.W.3d 247, 250 (Mo.App.2000). We, therefore, exercise the discretion granted to us by Rule 30.20 to consider as plain error Hamilton's claim that the court improperly interpreted section 565.047.3 to enhance his third-degree domestic assault conviction from a misdemeanor to a felony.

The interpretation of a statute is a question of law, which this court reviews de novo. State v. Barraza, 238 S.W.3d 187, 192 (Mo.App.2007). " 'The primary rule of statutory interpretation is to effectuate legislative intent through reference to the plain and ordinary meaning of the statutory language.' " Id. (quoting State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006)). " 'To determine whether a statute is clear and unambiguous, this court looks to whether the language is plain and clear to a person of ordinary intelligence.' " State v. Goddard, 34 S.W.3d 436, 438 (Mo.App.2000) (citation omitted). If the language of the statute is open to more than one reasonable interpretation, then the statute is ambiguous. Barraza, 238 S.W.3d at 192. " 'Where the statutory language is unambiguous, we need not resort to statutory construction and must give effect to the statute as written.' "State v. Graham, 149 S.W.3d 465, 467 ...