State v. Hammarlund

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NOT DESIGNATED FOR PUBLICATION

No. 119,435

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JANELL M. HAMMARLUND,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed May 3, 2019.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., BUSER and STANDRIDGE, JJ.

PER CURIAM: Janell M. Hammarlund was charged with one count of aggravated
burglary, a severity level 4 person felony, and one count of theft, a class A misdemeanor.
Following a jury trial, Hammarlund was found guilty on the aggravated burglary charge
but found not guilty on the theft charge. Hammarlund appeals her conviction, claiming
that it was not supported by sufficient evidence and, alternatively, that the district court
committed reversible error when it refused her request to give an eyewitness
identification limiting instruction to the jury. Finding no error, we affirm Hammarlund's
conviction.
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FACTS

In February 2017, Robert Whittington began to notice that cash and pocket change
were disappearing from his home in Lyon County, Kansas. This happened approximately
five separate times between February and April 2017. On those occasions, Whittington
would wake up in the morning and find that his wallet was placed in his pocket
differently than was normal. When he checked his wallet, any cash and pocket change he
previously had would be gone. Whittington, who never locked his doors at night,
suspected that someone was entering his home and stealing his money while he slept. He
reported these suspicions to the Lyon County Sheriff's Office sometime in March 2017.
With nothing aside from Whittington's statement to go on, the person who received
Whittington's statement said there was little the office could do besides take down his
complaint and create a case number.

The thefts continued. Despite their ongoing nature, Whittington refused to lock his
doors because he was growing more and more curious about who might be stealing from
him. To discover the thief's identity, Whittington enlisted the help of his friend, James
Wood, who owned a game camera. A game camera is a device that is designed to hang
discretely in the woods and take pictures of anything that walks in front of it. It is battery
operated and stores the photographs on a secure digital (SD) card that can be read using a
4-inch by 6-inch card reader. Whittington and Wood placed the camera in Whittington's
kitchen and positioned it so that it faced the front door. Because it was battery operated,
Whittington only turned it on at night when he went to bed. He acknowledged, however,
that there were days that he forgot to turn it off in the morning when he woke up.

On April 17, 2017—approximately four to six weeks after the game camera was
installed—Whittington woke up and could tell that something was wrong in the house but
he could not identify exactly what it was. He later described it as a general feeling that
something was out of place. Although Whittington did not discover anything missing, he
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was not surprised because he had begun hiding his money so that it was not easy to find.
Whittington believed there might be photographs on the camera but he did not know how
to access them. A few days later, on April 22, 2017, Whittington went to the Lyon
County Sheriff's Office and reported the April 17, 2017 incident to Deputy Charles
Moore. Because Whittington still could not access the photos, Deputy Moore agreed to
come to Whittington's house the next day to view the photos on the camera and, if
necessary, to take pictures of the crime scene.

After leaving the Lyon County Sheriff's Office, Whittington contacted Wood and
asked him to come over with his card reader so that they could review the game camera
photos. Wood arrived later that day and when he checked the camera, he found a number
of photos depicting an intruder in Whittington's house. Specifically, the photos depicted a
woman with long hair and glasses entering Whittington's home, rifling through his
pockets, and then exiting. The photos were date stamped April 17, 2023, and time
stamped 2:42 a.m., 2:44 a.m., and 2:45 a.m. When the two men saw the photos, they
immediately identified the intruder as Hammarlund. Both men were quite familiar with
Hammarlund because Wood had been in an on again/off again relationship with her for
between 7 and 11 years. The two broke up for good in December 2016.

Deputy Moore arrived at Whittington's house the next day—April 23, 2017—and
viewed the photographs using the card reader. As he did so, both Whittington and Wood
reiterated that they believed Hammarlund was the woman depicted in the photos. Deputy
Moore also reviewed the other photographs that were stored on the SD card and found
that the only other person depicted was Whittington on the days that he forgot to turn off
the game camera when he woke up. Deputy Moore then checked the settings on the
camera. Comparing them to his own watch, Deputy Moore determined that the month
and day of the date stamp was correct but the year was six years off and also that the time
stamp was an hour off because it had not been adjusted for daylight savings time. Deputy
Moore took possession of the SD card as he left and later used a computer in his office to
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confirm that the photos on the SD card were the same as the ones Wood showed him
using the card reader.

A few days later, on April 27, 2017, Deputy Moore made contact with
Hammarlund at her job site. They met in the manager's office. Deputy Moore informed
Hammarlund that he was investigating a burglary and asked her to remove her hat and
hair piece so that he could get a better look at her. Deputy Moore testified he could not be
sure during his interview with Hammarlund that she was the woman depicted in the game
camera photos because he did not have the photos with him to conduct a comparison. As
a result, Deputy Moore declined to arrest Hammarlund at that time. Deputy Moore told
Hammarlund she was still under investigation but that he wanted to check the photos one
more time. After doing so, Deputy Moore concluded Hammarlund was the woman
depicted in the photos.

On May 23, 2017, Hammarlund was charged with one count of aggravated
burglary and one count of theft. She pled not guilty to both charges, and a jury trial was
held on October 16, 2017. At trial, Deputy Moore, Wood, and Whittington all testified to
the facts outlined above. Notably, all three positively identified Hammarlund as the
woman depicted in the game camera photos. Whittington also testified that he slept in his
home every night and that no one, including Hammarlund, had permission to be in his
home while he slept. The State then introduced photos of Hammarlund, pulled from old
case files and off of Facebook, and compared them with the game camera photos.
Hammarlund testified in her own defense and claimed that she was not the woman
depicted in the photos. Instead she testified that the woman in the photos was Amy
Whittington, the wife of Robert Whittington's nephew. To support that claim
Hammarlund introduced a photo that she obtained from Amy Whittington's Facebook
page and compared it with the game camera photos. The State also introduced photos
from Amy Whittington's Facebook page and, again, compared them to the game camera
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photos. All of the photos were admitted into evidence and available to the jury during its
deliberations.

Following the trial, the jury found Hammarlund guilty of aggravated burglary but
found her not guilty of theft. Hammarlund filed a motion for a new trial as well as a
motion for a dispositional departure, requesting that she be placed on probation rather
than sentenced to prison. The district court, taking up both motions simultaneously,
denied the former but granted the latter of the two motions and sentenced Hammarlund to
36 months of probation with an underlying sentence of 56 months in prison.

ANALYSIS

Hammarlund claims the following two points of error on appeal: (1) Her
conviction of aggravated burglary was not supported by sufficient evidence and (2) the
district court committed reversible error when it refused her request to give an eyewitness
identification limiting instruction to the jury. We address each of these claims in turn.

Sufficiency of the evidence

In support of her claim of insufficient evidence, Hammarlund argues that (1) the
game camera photos were too "grainy" and "unclear" to identify the person depicted, (2)
Whittington's testimony was contradictory, (3) the missing money was never recovered,
and (4) even if she was depicted in the photos entering Whittington's home, the State
failed to prove that she had the intent to commit a felony or therein.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
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resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

It is only in rare cases, where the testimony is so incredible that no reasonable
fact-finder could find guilt beyond a reasonable doubt, that a guilty verdict will be
reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983). In addition, a verdict
may be supported by circumstantial evidence if such evidence provides a basis for a
reasonable inference by the fact-finder regarding the fact in issue. Circumstantial
evidence, in order to be sufficient, need not exclude every other reasonable conclusion.
State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Indeed, even the most serious
offenses can be based entirely on circumstantial evidence. 304 Kan. at 25; but see State v.
Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) ("'[T]he circumstances in question
must themselves be proved and cannot be inferred or presumed from other
circumstances.'").

To obtain a conviction for aggravated burglary, the State must prove beyond a
reasonable doubt that (1) Hammarlund entered or remained within Whittington's home,
(2) without authority, (3) while Whittington was inside, and (4) with the intent to commit
a felony, theft, or sexually motivated crime therein. See K.S.A. 2018 Supp. 21-
5807(b)(1). On appeal, Hammarlund claims there is insufficient evidence to establish
beyond a reasonable doubt that it was her who entered Whittington's home and that, even
if it was her, there is insufficient evidence to establish she had the intent to commit a
felony, theft, or sexually motivated crime inside the home.

Insufficient evidence of the intruder's identity

With regard to the first element, Hammarlund argues that the game camera photos
are "grainy" and "unclear" and therefore do not offer any concrete evidence as to the
identity of the person entering Whittington's home. In addition, she argues that
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Whittington's testimony was too confusing and contradictory to be credible. Lastly,
Hammarlund argues the missing money was never recovered from her. But each of these
arguments misconstrues the role of an appellate court when considering a challenge to the
sufficiency of the evidence. It is not the role of this court to "'reweigh evidence, resolve
evidentiary conflicts, or make witness credibility determinations.'" Chandler, 307 Kan. at
668. Rather, we are required to look at the evidence in the light most favorable to the
prosecution and determine whether it is sufficient to sustain a conviction. 307 Kan. at
668. Although Hammarlund's arguments present alternative explanations and ways of
viewing the evidence in this case, they do nothing to dissuade the conclusion that, when
viewed in the light most favorable to the prosecution, there is sufficient evidence to
uphold her conviction.

At trial, the State presented testimony from three separate witnesses and supported
that testimony with 17 different photographic exhibits. Whittington immediately
identified the woman in the photos as Hammarlund. Whittington's best friend, Wood, also
immediately identified the woman in the photos as Hammarlund. Wood testified that
Hammarlund had been his girlfriend in an on again/off again relationship for 7 to 11
years and that they had recently broken up in December 2016. After meeting
Hammarlund and viewing the photos for a second time, Deputy Moore testified to his
conclusion that Hammarlund was the woman depicted in the game camera photos.
Finally, the jury was shown 17 different photographic exhibits in support of the witness
testimony. The first three photos depicted a woman with long hair and glasses entering
Whittington's home, rifling through his pockets, and then exiting. The jury also was
shown known photos of Hammarlund that were pulled from old case files and off of
Facebook. And lastly, the jury was shown known photographs of Amy Whittington, the
wife of Whittington's nephew and the woman that Hammarlund claimed was depicted in
the photos. All of these photographs were admitted into evidence and available to the jury
during its deliberations. Viewing the evidence in the light most favorable to the
prosecution, we find there is sufficient evidence from which a jury could conclude
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beyond a reasonable doubt that Hammarlund was the individual who entered
Whittington's home.

Insufficient evidence of intent to commit a theft or felony

Hammarlund argues that even if she is the individual depicted in the game camera
photos entering Whittington's home, the State failed to prove beyond a reasonable doubt
that she had the intent to commit a theft, felony, or sexually motivated crime inside
Whittington's home. In support of this argument, Hammarlund points out that nothing
was taken from Whittington's trailer on April 17, 2017. She also points out that the jury
acquitted her on the theft charge. Relying on these points, Hammarlund argues it would
be unreasonable for a jury to conclude beyond a reasonable doubt that the person in the
game camera photo had the intent to commit a theft or felony inside Whittington's home.
Hammarlund's argument, however, is undercut by the fact that the photos depict a woman
entering Whittington's home and, once inside the home, rifling through the pockets of
Whittington's pants. The fact that the intruder rifled through the pockets of the
homeowner after entering the home without authority constitutes sufficient evidence from
which a jury could reasonably infer beyond a reasonable doubt that the intruder intended
to commit a theft. See Logsdon, 304 Kan. at 25 (verdict may be supported by
circumstantial evidence if such evidence provides basis for reasonable inference by fact-
finder regarding fact in issue).

After reviewing all the evidence in a light most favorable to the prosecution, and
without reweighing evidence, resolving evidentiary conflicts, or making witness
credibility determinations, we are convinced a rational fact-finder could have found
beyond a reasonable doubt that it was Hammarlund who entered or remained within
Whittington's home, without his authority, while Whittington was inside, with the intent
to commit a theft therein.

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Eyewitness instruction

Hammarlund argues that the district court committed reversible error when it
denied her request for an eyewitness identification limiting instruction.

"When analyzing jury instruction issues, [an appellate court] follows a three-step
process:
"'(1) determining whether the appellate court can or should review the
issue, i.e., whether there is a lack of appellate jurisdiction or a failure to
preserve the issue for appeal; (2) considering the merits to determine
whether error occurred below; and (3) assessing whether the error
requires reversal, i.e., whether the error can be deemed harmless.'
[Citation omitted.]" State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d
877 (2015).

"At the second step, we consider whether the instruction was legally and
factually appropriate, employing an unlimited review of the entire record. If the district
court erred, and the error did not violate a constitutional right, 'the error is reversible only
if [the court] determine[s] that there is a "reasonable probability that the error will or did
affect the outcome of the trial in light of the entire record."' [Citations omitted.]" State v.
Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

With regard to the first factor, it is undisputed that Hammarlund properly
preserved the issue and that this court has jurisdiction to hear her appeal. Therefore, we
begin our analysis by deciding whether the eyewitness identification limiting instruction
requested by Hammarlund was legally and factually appropriate, employing an unlimited
review of the entire record. Legal appropriateness is whether the instruction fairly and
appropriately states the applicable law. Like all questions of law, this court employs an
unlimited standard of review. To determine whether the jury instruction was factually
appropriate, this court determines if there was sufficient evidence, viewed in the light
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most favorable to the requesting party, to support a factual basis for the instruction. State
v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).

Defense counsel requested the district court provide the jury with the introductory
paragraph of the eyewitness identification jury instruction, PIK Crim. 4th 51.110 (2017
Supp.), in conjunction with paragraph six of that same PIK instruction:

"The law places the burden upon the State to identify the defendant. The law
does not require the defendant to prove (he) (she) has been wrongly identified. In
weighing the reliability of eyewitness identification testimony, you should determine
whether any of the following factors existed and, if so, the extent to which they would
affect accuracy of identification by an eyewitness. Factors you may consider are:
. . . .
"6. Whether there are any other circumstances that may have affected the
accuracy of the eyewitness identification." PIK Crim. 4th 51.110 (2017
Supp.).

There is no question that PIK Crim. 4th 51.110 is a correct statement of the law.
See Plummer, 295 Kan. at 163. Hammarlund argued before the district court that the
eyewitness instruction also was factually appropriate because all of the witnesses at trial
identified her solely from a grainy and unclear game camera photo. But the district court
held a witness reliability instruction was not necessary. Specifically, the court found
reliability was not an issue because the two key witnesses who identified her knew her
well before they identified her as the individual in the photos. We agree with the findings
made by the district court.

As a preliminary matter, the Notes on Use for this PIK instruction state that
"unless there is evidence which causes the trial court to question the reliability of the
eyewitness identification, this instruction should not be given." Notes on Use, PIK Crim.
4th 51.110 (2017 Supp.); see State v. Harris, 266 Kan. 270, 278, 970 P.2d 519 (1998).
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Hammarlund's claim that all of the witnesses at trial identified her solely from a grainy
and unclear game camera photo is insufficient to question the reliability of the witnesses
who testified.

In addition, our Supreme Court has held the PIK instruction "contemplate[s] an
eyewitness who does not know the defendant personally. Where the witness personally
knows the individual being identified, the cautionary eyewitness identification instruction
is not necessary. The accuracy of the identification can be sufficiently challenged through
cross-examination." State v. Calvin, 279 Kan. 193, Syl. ¶ 9, 105 P.3d 710 (2005); see also
State v. Trotter, 280 Kan. 800, 808-09, 127 P.3d 972 (2006) (no instruction necessary
where defendant had been to witness' house and was not a stranger to witness); State v.
Mann, 274 Kan. 670, Syl. ¶ 2, 56 P.3d 212 (2002) ("Where the witness personally knows
the individual being identified, the cautionary eyewitness identification instruction is not
necessary and the accuracy of the identification can be sufficiently challenged through
cross-examination."); State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001) (eyewitness
identification instruction "contemplate[s] an eyewitness who does not know the
defendant personally").

Here, Wood testified that he was in an on again/off again relationship with
Hammarlund for between 7 and 11 years. Similarly, Whittington testified that Wood was
his best friend and therefore he had met and interacted with Hammarlund on numerous
occasions while she and Wood were dating. Those interactions included a few instances
in which Wood would bring Hammarlund to Whittington's house and all three would sit
outside and hang out together. Hammarlund largely confirmed these facts during her own
testimony, specifically acknowledging that she knew both Whittington and Wood as a
result of her long term, on again/off again relationship with Wood. It is therefore
undisputed that Whittington and Wood personally knew Hammarlund prior to identifying
her as the woman depicted in the game camera photos.

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Based on our review of the record as a whole, we find that a limiting instruction
regarding the eyewitness identifications was not factually appropriate. As such, the
district court did not err when it denied Hammarlund's request to give such an instruction
to the jury.

Affirmed.