State v. Kamaka

• Decision Date: 24 February 2009
• Docket Number: No. WD 69664.,WD 69664.
• Citation: 277 S.W.3d 807
• Parties: STATE of Missouri, Appellant, v. Curtis K. KAMAKA, Respondent.
• Court: Missouri Court of Appeals

277 S.W.3d 807

STATE of Missouri, Appellant, v. Curtis K. KAMAKA, Respondent.

No. WD 69664.

Missouri Court of Appeals, Western District.

February 24, 2009.

Jane Woods, Jefferson City, MO, for Appellant.

James R. Hobbs, Kansas City, MO, for Respondent.

Before LISA WHITE HARDWICK, P.J., VICTOR C. HOWARD, Judge and JOSEPH P. DANDURAND, Judge.

VICTOR C. HOWARD, Judge.

The State of Missouri ("the State") appeals from the order of the trial court granting Curtis Kamaka's motion to dismiss the State's information, which charged him with the crime of promoting child pornography. In its two points on appeal, the State claims that the trial court erred in granting Kamaka's motion to dismiss because the State's prosecution: (1) did not violate Kamaka's right to be free from double jeopardy, and (2) did not breach the plea agreement that Kamaka had entered into with the State. The order of the trial court is affirmed.

Factual and Procedural Background

Curtis Kamaka was initially charged in Clay County, Missouri, with one count of possessing child pornography in violation of section 573.037, RSMo 2000. Pursuant to a plea agreement he had entered into with the State, Kamaka pled guilty to the charge. The Clay County circuit court imposed a sentence of four years but suspended execution of the sentence and placed Kamaka on supervised probation for a period of five years. Subsequently, Kamaka was charged in Platte County with one count of promoting child pornography in violation of section 573.025, RSMo 2000. Kamaka filed a motion to dismiss the promotion charge, which the trial court granted on the basis of double jeopardy and the State's breach of the plea agreement.

Both the possession and promotion charges stemmed from an investigation led by Detective Mark Stephens of the Platte County Sheriff's Department. On January 12, 2007, Detective Stephens identified a computer located in Missouri that was offering to distribute child pornography over the internet by means of a file-sharing program. Detective Stephens successfully downloaded a video file from that computer and, upon viewing the file, discovered it to be child pornography. Detective Stephens then investigated the internet protocol address associated with the computer from which he downloaded the file and learned that the computer belonged to Kamaka, a resident of Clay County.

With the help of Clay County Deputy Sheriff Jeff Harman, Detective Stephens obtained a search warrant for Kamaka's home and executed the warrant on February 16, 2007. During the search, Detective Stephens found numerous movie files containing child pornography on Kamaka's computer and, more specifically, was able to locate the same file that he had downloaded on January 12, 2007, in Platte County. During an interview with Detective Stephens, Kamaka admitted that he had downloaded and viewed all of the videos containing child pornography located on his computer, he knew it was illegal to possess child pornography, and he shared child pornography over the internet from his computer.

On February 17, 2007, Clay County charged Kamaka with one count of possession of child pornography premised upon his possession of video files on February 16, 2007. Kamaka pled guilty to the charge pursuant to a plea agreement in which the State agreed that it would not "file additional Clay County possession of child pornography charges" relating to the investigation. After Kamaka pled guilty to the Clay County possession charge, Platte County charged Kamaka with one count of promoting child pornography. Platte County alleged that Kamaka had disseminated child pornography on January 12, 2007, the day Detective Stephens had downloaded the movie file from Kamaka's computer.

In response to the Platte County charge, Kamaka filed a motion to dismiss for double jeopardy. Kamaka asserted that the possession of child pornography charge was a lesser-included offense of the promotion of child pornography charge and that, therefore, the successive prosecution for promotion following his guilty plea to the possession charge constituted a violation of Kamaka's right to be free from double jeopardy. Kamaka also argued that the State had agreed that it would not file any additional charges in connection with the investigation and that Platte County should be bound by the plea agreement made in Clay County.

After hearing arguments on Kamaka's motion to dismiss, the trial court in Platte County granted the motion and dismissed the promotion charge. The trial court first found that possession of child pornography was a lesser-included offense of dissemination of child pornography. The trial court further found that Platte County was bound by the plea agreement Kamaka entered into with Clay County and that it was appropriate to enforce the plea agreement by dismissing the promotion charge. This appeal by the State followed.

Standard of Review

Whether an individual's right to be free from double jeopardy has been violated is a question of law, which an appellate court reviews de novo. State v. Glasgow, 250 S.W.3d 812, 813 (Mo.App. W.D.2008). When an appellate court's review is de novo, it need not defer to the trial court's determination of law. State v. Williams, 24 S.W.3d 101, 110 (Mo.App. W.D.2000).

Discussion

In its first point on appeal, the State contends that the trial court erred in granting Kamaka's motion to dismiss upon the basis that the Platte County promotion charge violated Kamaka's right to be free from double jeopardy. The State first claims that double jeopardy is not implicated because the Clay County and Platte County charges were based on different conduct that occurred on different dates and involved separate pornographic materials. Even if the charges were based on the same conduct, the State next argues that the possession charge is not a lesser-included offense of the promotion charge.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This provision, pursuant to the Fourteenth Amendment, applies to the states. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). The Double Jeopardy Clause "contains two distinct protections for criminal defendants: (a) protection from successive prosecutions for the same offense after either an acquittal or a conviction and (b) protection from multiple punishments for the same offense." State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). Missouri courts have adopted the rule that "double jeopardy attaches to a guilty plea upon its unconditional acceptance." Peiffer v. State, 88 S.W.3d 439, 444 (Mo. banc 2002).

In addition to the general principles relating to double jeopardy, section 556.041, RSMo 2000, provides certain limitations on convictions for multiple offenses. The provision states that:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if

(1) One offense is included in the other, as defined in section 556.046; or

(2) Inconsistent findings of fact are required to establish the commission of the offenses; or

(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

§ 556.041. However, "if the defendant has in law and in fact committed separate crimes," multiple convictions are permissible. Flenoy, 968 S.W.2d at 143. Therefore, if each charge is founded on different conduct "or a separate mens rea is newly formed, the conduct gives rise to an additional crime." State v. Tyler, 196 S.W.3d 638, 641 (Mo.App. W.D.2006).

In Kamaka's case, Clay County initially charged him with violating section 573.037, which provides that "[a] person commits the crime of possession of child pornography if, knowing of its content and character, such person possesses any obscene material that has a child as one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct." Platte County charged Kamaka with violating section 573.025, which states that a person commits the crime of first degree promotion of child pornography "if, knowing of its content and character, such person possesses with the intent to promote or promotes obscene material that has a child as one of its participants or portrays what appears to be a child as a participant or observer of sexual conduct."

Before addressing whether possession of child pornography is a lesser-included offense of the promotion of child pornography, the State argues that because the Clay County possession charge and the Platte County dissemination charge were based on different conduct occurring on different dates and involving different pornographic materials, the protections of double jeopardy are not implicated in this case. In differentiating the conduct providing the basis for each charge, the State notes that the Clay County charge was based on the files found in Kamaka's possession on February 16, 2007, and the Platte County charge was based on the dissemination of the file that occurred January 12, 2007. Additionally, the State asserts that the charges filed against Kamaka required two separate acts in that the dissemination charge required Kamaka "to post the images on the internet to make them available for others,"¹ and the possession charge only required him to have had the images within his dominion and control. Finally, the State claims that the charges involved different...