Subscribers, Co-Occupants and Network Privacy

After law enforcement officials found child pornography on his computer, Edward Hatcher was convicted of sexual exploitation of a child in violation of Georgia Code § 16-12-100 and “sentenced to a term of imprisonment”. Hatcher v. State, __ S.E.2d __, 2012 WL 857294 (Georgia Court of Appeals 2012).

He appealed, arguing, in part, that the trial court “erred when it denied his motion to suppress information obtained from an internet service provider”. Hatcher v. State, supra.

This is how the case, and the motion to suppress, arose:

[A]n investigator with the Cherokee County Sheriff's Office learned that someone was using a computer in Cherokee County to share child pornography on the Internet. The investigator ascertained that the Internet Protocol (IP) address used by the child pornographer was assigned to a customer of Comcast Cable Communications, an internet service provider, and the investigator asked Comcast to provide certain information about the account of that customer.

Comcast did so, disclosing the name of the customer and her billing address, which was a residential address in Cherokee County.

The investigator obtained a warrant to search the residence at the billing address for certain evidence of child pornography, including any computers or electronic data storage devices that he might find there. When the investigator went to the home, he confirmed that it was occupied by a family that subscribed to Comcast internet service.

The investigator learned that the family used a wireless router to access the Internet, and he also discovered that Hatcher lived in the basement of the home and used the same wireless router.

Hatcher v. State, supra.

In a footnote, the opinion points out that

Hatcher apparently had lived in the basement of the family's home for about two months. The record does not reveal the relationship, if any, between Hatcher and the family or whether he was a renter or guest in their home.

Hatcher v. State, supra.

Before his case went to trial, Hatcher moved “to suppress the customer information that the investigator obtained from Comcast”. Hatcher v. State, supra. The opinion notes that he “also moved to suppress any evidence obtained by use of that information, which includes, of course, the evidence later found on his computer.” Hatcher v. State, supra. As noted above, the trial judge denied his motion, and he renewed the arguments he made in favor of suppressing the evidence in his appeal. Hatcher v. State, supra.

More precisely, Hatcher argued that “the request for information amounted to an unreasonable search in violation of the 4^th Amendment.” Hatcher v. State, supra. The Court of Appeals began its analysis of his argument by explaining that

When one contends that he was aggrieved by an unreasonable search and seeks to suppress evidence obtained as a result of the search, he must show, among other things, that an agent of the government either trespassed upon his property, see U.S. v. Jones, 132 S.Ct. 945 (2012), or invaded some other place or thing in which he has a reasonable expectation of privacy. See Bond v. U.S., 529 U.S. 334 (2000).

Here, Hatcher cannot seriously claim that a request for information from Comcast was a trespass upon his property, so we consider whether he has a reasonable expectation of privacy in the information disclosed by Comcast.

Hatcher v. State, supra.

The court then pointed out that the

United States Supreme Court `consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, 442 U.S. 735 (1979). . . .

Consistent with this principle, numerous federal courts have concluded that an internet service customer has no reasonable expectation of privacy in the subscriber information that he gives voluntarily to his internet service provider. See, e.g., U.S. v. Beckett, 369 Fed. Appx. 52 (U.S. Court of Appeals for the 11^th Circuit 2010) (`[S]uppression under the 4th Amendment was not required because [the subscriber] did not have a reasonable expectation of privacy with regards to the information transmitted’); U.S. v. Christie, 624 F.3d 558, 573–574(II)(C) (U.S. Court of Appeals for the 3rd Cir. 2010) (no reasonable expectation of privacy in IP address or subscriber information because such information is voluntarily conveyed to third parties). . . .

In light of these decisions, we doubt that an internet service subscriber can have a reasonable expectation of privacy in the subscriber information that he voluntarily conveys to an internet service provider in order to obtain internet service.

Hatcher v. State, supra.

As I’ve noted in earlier posts, the 4^th Amendment creates a right to be free from unreasonable “searches” and “seizures.” A “search” violates a “reasonable expectation of privacy” in a place or thing. And the test used to decide if someone had a reasonable expectation of privacy in a place or thing is the test the Supreme Court enunciated in Katz v. U.S., 389 U.S. 347 (1967): The person had a subjective expectation of privacy in the place/thing and society is prepared to regard that subjective expectation of privacy as objectively reasonable. (Actually, as Wikipedia notes, this test comes from Justice Harlan’s concurring opinion in Katz and was later adopted by a majority of the Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979)).

In determining whether someone’s subjective expectation of privacy is objectively “reasonable,” courts apply the “assumption of risk” analysis. In the Katz case, the Supreme Court said that, for the purposes of 4^th Amendment privacy analysis, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection.” Katz v. U.S. supra.

So, when someone “knowingly” exposes information or other evidence to a third party, he or she has assumed the risk that this person will share the information with others, including law enforcement.

The Court applied this assumption of risk analysis in Smith v. Maryland, in which it held that it was not a 4^th Amendment search for a telephone company, “at police request,” to install a pen register (a device that recorded the numbers Smith dialed on his home phone) on Smith’s account. Smith v. Maryland, supra. The Smith court explained that

[t]his analysis dictates that [Smith] can claim no legitimate expectation of privacy here. When he used his phone, [he] voluntarily conveyed numerical information to the telephone company and `exposed’ that information to its equipment in the ordinary course of business.

Smith v. Maryland, supra.

The Hatcher court found, though, that it did not need to decide “definitively” whether internet service subscriber has a reasonable expectation of privacy in the subscriber information that he voluntarily conveys to an internet service provider in order to obtain internet service. Hatcher v. State, supra. It decided it did not need to decide the issue

in this case because Hatcher is not the subscriber whose information was requested from Comcast. Instead, he simply used the internet service subscription of another to access the Internet, and the record tells us nothing about his relationship with the subscriber, except that he apparently had lived for two months in her basement.

Even if a subscriber might have a reasonable expectation of privacy in her own account information, we do not understand how anyone else could have a reasonable expectation of privacy in it, especially in the absence of some special relationship between that person and the subscriber.

For this reason, we conclude that Hatcher failed to establish a reasonable expectation of privacy in the information requested from Comcast, and the court below did not err when it denied his motion to suppress.

Hatcher v. State, supra.

In a footnote, the court explained that

[i]n this case, we are dealing only with customer information voluntarily disclosed to an internet service provider to obtain internet service. We do not address whether a customer or user of internet service has a reasonable expectation of privacy in the content of electronic mail and other electronic communications that he transmits across the Internet.

Hatcher v. State, supra.

Harassment, Family Photos and Facebook

As I’ve noted in earlier posts, “harassment” is a crime in most, if not all, states. As I’ve also noted, harassment is usually defined in terms of (i) repeatedly engaging in communication (online or offline) with another person (ii) with the intent to harass, annoy, alarm or torment the person and (iii) with no intention of engaging in legitimate communication.

And as I noted in a post I did several years ago, courts usually require that the defendant be shown to have had the “specific purpose” of harassing the alleged victim, which generally requires that the communication was directed specifically at that person and, again, was not for the purpose of engaging in legitimate communication.

That brings us to Olson v. LaBrie, 2012 WL 426585 (Minnesota Court of Appeals 2012). As the title implies, this is a civil, not a criminal, case: “In October 2010, . . . Aaron Olson petitioned for a harassment restraining order (HRO) against his uncle, . . . respondent Randall LaBrie.” Olson v. LaBrie, supra.

Minnesota Statutes § 609.748(a)(1) defines “harassment,” in part, as

a single incident of physical or sexual assault or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target. . . .

And Minnesota Statutes § 609.748(5)(a) states that a judge can enter a restraining order directing the respondent “to cease or avoid the harassment of another person or to have no contact with that person if” certain conditions apply, one of which is that the court has found that “there are reasonable grounds to believe that the respondent has engaged in harassment.” If you’re interested, you can read more about how Minnesota law defines harassment and how one goes about applying for an HRO here.

In seeking an HRO, Olson “claimed that family photos and accompanying text, posted by respondent to the social-networking web site Facebook, constituted harassment under Minnesota Statutes § 609.748.” Olson v. LaBrie, supra. The Court of Appeals’ opinion provides a little more detail on these allegations, explaining that

[f]rom March to June 2010, [LaBrie] posted multiple photos of various family members on his Facebook page. The photos include portraits and group shots, such as several family members when they were children, including appellant, posing in front of a Christmas tree. When [Olson] learned these photos had been posted, he e-mailed [LaBrie] and requested the photos that included him either be removed or altered to erase [him].

In reply, [LaBrie] stated in an e-mail that he would not alter the photos and that [Olson] should stay off Facebook if he disliked the photos. Ultimately, [LaBrie] removed the `tags’ that identify people in photos on Facebook and later took down the photos.

Olson v. LaBrie, supra.

The district court judge (i.e., the lower court judge) held an evidentiary hearing on Olson’s application for an HRO, at which LaBrie apparently testified. Olson v. LaBrie, supra. According to the opinion,

[LaBrie] testified that [Olson] was not his `friend’ on Facebook and that he intended his Facebook page to be viewed only by friends and not by [Olson]. [LaBrie] claims that [Olson] had `unauthorized’ access to his Facebook page, but [LaBrie] also testified that any member of the public could have accessed his page via a simple name search.

[Olson], who lives with his mother, A.O., testified that he initially accessed [LaBrie’s] Facebook page via his mother's Facebook account when he used her computer and she had left her Facebook page open. But [Olson] stated in his appellate brief that he later obtained copies of [LaBrie’s] Facebook page for the HRO hearing by conducting a search on Facebook that any member of the public could have done.

Olson v. LaBrie, supra.

In the petition Olson filed seeking the HRO, he

claimed that statements from [LaBrie]included `a series of comments that could reasonably be interpreted as veiled threats against the Petitioner's life and safety.’

[Olson] also claimed that [LaBrie] frightened [him] with threatening behavior that included `a hostile tirade against Petitioner online, posting childhood images of Petitioner accompanied by obscene language.’

[Olson] further stated in the petition that [LaBrie] `has acquired private childhood pictures of Petitioner and has posted the pictures online together with vulgar and coercive statements.’ Finally, [Olson] stated that [LaBrie’s] harassment of him had restricted his movement `and caused reasonable alarm.’

[Olson] requested a two-year order requiring [LaBrie] to not harass [him] or his minor child, to stay away from his home, and to remain 100 yards away from him and his children.

Olson v. LaBrie, supra.

After hearing testimony at the evidentiary hearing, the district court judge

granted [LaBrie’s] motion to dismiss [Olson’s] petition. The district court determined that appellant had not proved harassment and instead provided evidence only of “mean, disrespectful comments.” In addition, the district court stated that the photos provided as evidence of harassment were “innocuous family photographs and could not possibly serve as a basis for harassment.”

Olson v. LaBrie, supra.

On appeal, Olson argued that the “photos depicting him and comments regarding him that [LaBrie] posted on Facebook violated his privacy under Minnesota Statutes § 609.748(a)(1) and therefore constitute harassment.” Olson v. LaBrie, supra. After noting that § 609.748(a)(1) defines harassment, in part, as conduct that has or is intended to have a “substantial adverse effect” on another ‘s privacy, the Court of Appeals pointed out that while

privacy concerns are the thrust of [Olson’s] arguments on appeal, it does not appear from the record that he raised the issue of privacy below. In [his] HRO petition, when asked to describe the effect of the alleged harassment on his safety, security, or privacy, [Olson] simply states that `[t]he harassment has restricted movement and caused reasonable harm.’

Claims related to the restriction of movement and harm apply to the statutory requirements of safety or security, not privacy. The district court also did not address any privacy concerns in its dismissal of [Olson’s] petition.

The court of appeals generally does not review issues not raised below and issues not decided by the district court. Thiele v. Stich, 425 N.W.2d 580 (Minn.1988). Therefore, we conclude that [Olson] waived his privacy argument.

Olson v. LaBrie, supra.

The Court of Appeals also rejected the next argument Olson made on appeal, i.e., that “the district court erred by not fully crediting the testimony of A.O., appellant's mother, who testified that [LaBrie’s] conduct was `offensive.’” Olson v. LaBrie, supra. It explained that in

determining that [Olson] had not proved harassment, the district court stated that it had heard all of the testimony and reviewed the exhibits containing the Facebook photos and comments. Additionally, the district court specifically referenced A.O.'s testimony and her assessment of the comments posted by [LaBrie] to Facebook.

The district court stated that A.O. provided an adequate description of the comments as `mean, disrespectful comments,’ which did not rise to the level of harassment. Including `offensive’ in the assessment of A.O.'s testimony would not have changed the district court's assessment of the comments as mean and disrespectful but not harassing.

The district court also found that the family Christmas pictures were innocuous photos that `could not possibly serve as a basis for harassment,’ a finding that [Olson] does not contest. To constitute harassment, words must have a substantial adverse effect on the safety, security, or privacy of another. Minnesota Statutes 609.748(a)(1).

Comments that are mean and disrespectful, coupled with innocuous family photos, do not affect a person's safety, security, or privacy -- and certainly not substantially so. The district court did not err by determining that the evidence submitted by [Olson] did not satisfy the statutory definition of harassment. Therefore, the district court did not abuse its discretion by dismissing [his] petition for an HRO.

Olson v. LaBrie, supra.

Finally, Olson asked “that the record on appeal be sealed.” Olson v. LaBrie, supra. The Court of Appeals began its analysis of this request by noting that

`[e]very party to an appeal must take reasonable steps to prevent the disclosure of confidential information, both in oral argument and written submissions filed with the court.” Minnesota Rules of Civil Appellate Procedure Rule 112.03. Confidential evidentiary materials should be submitted to the court of appeals in a bound confidential appendix under seal, and a party need not seek leave of court to do so. See Minnesota Rules of Civil Appellate Procedure Rule 112.02.

[Olson] pointed to no specific information in the record that should remain confidential and instead asks the court to seal `this case.’ But an appellate brief cannot be filed completely under seal and `must be accessible to the public in some form.’ Coursolle v. EMC Ins. Group, Inc., 794 N.W.2d 652 (Minn. App. 2011), review denied (Minn. 2011).

Olson v. LaBrie, supra.

The court concluded its analysis of this request by pointing out that

[u]nder the rules of appellate procedure, a party wishing to protect confidential information may seek to file a redacted version that can be accessed by the public and a non-redacted version under seal if the inability to discuss confidential information would cause `substantial hardship or prevent the fair presentation of a party's argument.’ Minnesota Rules of Civil Appellate Procedure Rule 112.03. advisory committee comment.

[Olson] argues that the case should be sealed because not doing so `will perpetuate the false light effect that [LaBrie] likely intended for it, as well as disclose more of [Olson’s] private life.” [He] does not argue that disclosure of information in the briefs will cause a substantial hardship and it does not appear that disclosure will lead to substantial hardship, particularly given that the district court found the evidence presented by [Olson] to not constitute harassment.

Therefore, we deny [his]request to seal any portion of the appellate record.

Olson v. LaBrie, supra.

And no, the opinion does not include briefs on appeal, so I can’t provide any details as to what, precisely, LaBrie said about Olson. I checked out the Minnesota Court of Appeals’ site, which has the briefs, but it doesn’t appear possible to download them from there.

Text Messages and Using “A Computerized Communication System”

After being convicted of “one count of using a computerized communication system to facilitate a child sex crime” in violation of Wisconsin Statutes § 948.075(1r), Justin Scott Hamilton appealed. State v. Hamilton, 2012 WL 851230 (Wisconsin Court of Appeals 2012).

This is all the Court of Appeals’ opinion says about how the case arose:

[A]n undercover police officer sent a group message through a cellular phone chat network called UPOC, to a subgroup called Wisconsin Lounge, adopting the persona of a fourteen-year-old girl. Hamilton responded via text message on his cellular phone and arranged to meet the purported fourteen-year-old girl for purposes of engaging in sexual activity. Hamilton was arrested at the proposed meeting location.

State v. Hamilton, supra.

Hamilton moved to dismiss the charge, arguing that Wisconsin Statutes § 948.075(1r) “is unconstitutionally vague.” State v. Hamilton, supra. As Wikipedia notes, “void for vagueness” is a concept “in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand.”

Actually, the Supreme Court has held that the void for vagueness doctrine has two prongs: In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the Court held that a vagrancy statute was void for vagueness “both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’” and “because it encourages arbitrary and erratic arrests and convictions.”

The Court explained that the first flaw derives from the basic principle that the law must “give fair notice of” what conduct is prohibited; it found that the vagrancy statute violated this principle because it encompassed a variety of what would seem innocuous conduct to the ordinary person, such as strolling or walking at night. Papachristou v. City of Jacksonville.

It also explained that “[a]nother aspect of the ordinance's vagueness” lay “not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the . . . police.” Papachristou v. City of Jacksonville. The Court noted that the latter meant that “those convicted may be punished for no more than vindicating affronts to police authority.” Papachristou v. City of Jacksonville.

That, therefore, is the Constitutional principle on which Hamilton relied in arguing that Wisconsin Statutes § 948.075(1r) is unconstitutionally vague. State v. Hamilton, supra. The statute in question provides as follows:

Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of [Wisconsin Statutes §§] 948.02(1) or (2) is guilty of a Class C felony.

Wisconsin Statutes § 948.02(1) defines the Class A or Class B felony of “first degree sexual assault” as having sexual intercourse with someone variously under the age of 12, 13 or 16 when certain circumstances (e.g., “use of force” or causing “great bodily injury”) apply. Wisconsin Statutes § 948.02(2) defines the Class C felony of “second degree sexual assault” as having sex with someone “who has not attained the age of 16 years.”

The trial judge denied Hamilton’s motion to dismiss the charge on the grounds that Wisconsin Statutes § 948.075(1r) is unconstitutionally vague. State v. Hamilton, supra. The case went to a bench trial and,

[a]t trial, Hamilton stipulated to all of the elements of the offense except that he had used `a computerized communication system.’ Hamilton contended that sending text messages on a cellular phone did not amount to such use.

State v. Hamilton, supra.

The trial judge apparently didn’t buy Hamilton’s argument, because he found Hamilton “had violated the statute, and thus found Hamilton guilty of the charged offense.” State v. Hamilton, supra. As noted above, Hamilton appealed, raising the same issue on appeal. State v. Hamilton, supra.

The Court of Appeals therefore began its analysis of his argument by noting that a statute is “unconstitutionally vague if it does not `set forth fair notice of the conduct prohibited or required and proper standards for enforcement of the law and adjudication.’” State v. Hamilton, supra (quoting State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750 (1983)). The court also explained that

in order to declare a statute unconstitutional on vagueness grounds, we must determine `that one bent on obedience may not discern when the region of proscribed conduct is neared, or . . . that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the statute or rule.’ [State v. Popanz, supra.] We look to whether a person of ordinary intelligence would have fair notice of the conduct prohibited by the statute. [State v. Popanz, supra.]

State v. Hamilton, supra.

The Court of Appeals noted that Hamilton “carries the burden of refuting the presumption that this statute is constitutional.” State v. Hamilton, supra. He attempted to refute this proposition by arguing that Wisconsin Statutes § 948.075(1r) “implicates 1st Amendment free speech rights, and thus the burden is on the State to prove its constitutionality beyond a reasonable doubt.” State v. Hamilton, supra. The appellate court did not agree, pointing out that the Wisconsin Supreme Court had held hat

1st Amendment protection does not `extend[ ] to speech that is incidental to or part of a course of criminal conduct’ in rejecting the same argument as to the child enticement statute. State v. Robins, 253 Wis.2d 298, 646 N.W.2d 287 (2002). . . .

Hamilton has not argued that there is any reason to distinguish [Wisconsin Statutes] § 948.075(1r), use of a computer to facilitate a child sex crime, as implicating First Amendment concerns the supreme court determined did not apply to [Wisconsin Statutes] § 948.07, child enticement. Accordingly, the burden remains on Hamilton to refute the presumption that the statute is constitutional.

State v. Hamilton, supra.

Hamilton then made his void for vagueness argument. He began with the premise that because “the phrase `a computerized communication system’ is not defined in the” statute, a “person of ordinary intelligence would not understand that `a computerized communication system’ includes sending and receiving text messages on a cellular phone.” State v. Hamilton, supra.

Hamilton also relied on the second prong of the void for vagueness doctrine, arguing that “the undefined term impermissibly delegates the responsibility of defining the standards of compliance with the law to those enforcing the statute, and thus the statute is subject to arbitrary application.” State v. Hamilton, supra.

The Court of Appeals found that “a person of ordinary intelligence would be apprised that the conduct alleged in this case constituted use of a computerized communication system under [Wisconsin Statutes] § 948.075(1r), and that the language of the statute provides sufficient guidance for its enforcement.” State v. Hamilton, supra. It noted, first, that there was “no dispute regarding the conduct at issue.” State v. Hamilton, supra.

At trial, the undercover officer involved in Hamilton's arrest testified that she communicated with Hamilton through the UPOC network, which she described as an `online chat community.’ The officer explained that an individual creates a profile on UPOC on the internet, and subscribes to social groups.

The user then receives online group or individual messages from other members in the group. Accounts may be set to forward online messages as text messages to cellular phone numbers. The officer also testified that the cellular phone Hamilton used in this case could access the internet.

State v. Hamilton, supra. The court also pointed out that a

store manager from AT & T testified that he was very familiar with the phone Hamilton used in this case, and explained that it operated on a GSM network. He further testified that the GSM network is a computerized system. He also explained that the UPOC network allows users to send messages from a personal computer, which then go through UPOC, and then are forwarded to a cellular phone.

State v. Hamilton, supra.

Based on this, the Court of Appeals found that

the phrase `a computerized communication system’ clearly encompasses Hamilton's use of his cellular phone to transmit and receive text messages through an internet-based chat community. A person of ordinary intelligence would understand that such conduct falls within the scope of the statute, and those charged with enforcing the law need not create their own standards to enforce the law on these facts.

State v. Hamilton, supra.

It explained that the relevant statutes define a “computer” as

`an electronic device that performs logical, arithmetic and memory functions by manipulating electronic or magnetic impulses, and includes all input, output, processing, storage, computer software and communication facilities that are connected or related to a computer in a computer system or computer network.’ [Wisconsin Statutes] § 943.70(1)(a).

The words `communication’ and `system’ have common definitions readily ascertainable from a dictionary. See State v. Hahn, 221 Wis.2d 670, 586 N.W.2d 5 (Ct. App.1998). The dictionary definitions for `communicate,’ which is the root of `communication,’ include `to send information or messages [,] sometimes back and forth.’ See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (unabr. ed.1993). The definitions for `system’ include `an organization or network for the collection and distribution of information, news, or entertainment.’ Id. at 2322.

State v. Hamilton, supra.

The Court of Appeals then explained that it was “clear from these terms” that Hamilton’s “use of his cellular phone in this case meets the definition of use of a computer under the statutes.” State v. Hamilton, supra. It also noted that Hamilton’s use of his phone

to receive and send text messages through an internet-based chat community that transmits messages between computers and cellular phones via a computerized network was plainly use of a computerized communication system in multiple respects.

To cite only one readily evident way of using these terms, Hamilton used an `electronic device,’ namely his phone, and specifically its `storage’ ability, to retain `memory’ of text messages, and to send this `information back and forth’ to a `network,’ namely UPOC online, that was obviously used `for the collection of information.’

A person of ordinary intelligence would be aware that registering for an internet-based chat community and receiving and sending text messages through that network on a cellular phone -- which itself operates on a computerized network -- is within the range of prohibited conduct.

Additionally, those with the responsibility of enforcing the law are not required to create their own legal standards to enforce it, as the law plainly covers the conduct in this case. The statute prohibits facilitating a child sex crime by use of a computerized communication system; that is, by use of an organization or network of computers that is used to send messages back and forth. That is what occurred in this case.

State v. Hamilton, supra.

The court therefore affirmed Hamilton’s conviction. State v. Hamilton, supra.