Thomas Gilmore v. State of Mississippi ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00816-COA
THOMAS GILMORE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/25/2017
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN A. SUBER
THOMAS GILMORE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 07/16/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. A Forrest County jury convicted Thomas Gilmore of burglary of a dwelling and sexual
battery. The Forrest County Circuit Court sentenced Gilmore to serve fifteen years in the
custody of the Mississippi Department of Corrections (MDOC) for the burglary of a dwelling
conviction and twenty-five years for the sexual battery conviction. The trial court ordered
that the sexual battery sentence run consecutively to the burglary of a dwelling sentence.
After the trial court denied Gilmore’s posttrial motions, Gilmore appealed.
¶2. Gilmore’s appellate counsel filed a brief in compliance with Lindsey v. State, 939 So.
2d 743 (Miss. 2005), certifying to this Court that the record presented no arguable issues for
appeal. Gilmore then filed a pro se brief asserting the following assignments of error: (1) his
indictment was defective; (2) the State failed to meet its burden of proving an essential
element of sexual battery; (3) his conviction was against the weight of the evidence; (4) there
was insufficient evidence to support the verdict; and (5) his counsel provided ineffective
assistance.
¶3. After our review of the appellate briefs and the record before us, we find that
Gilmore’s appeal presents no arguable issues. We therefore affirm Gilmore’s conviction and
sentence.
FACTS
¶4. In July 2016, Gilmore was indicted for one count of burglary of a dwelling (Count I)
and one count of sexual battery (Count II) stemming from an incident that occurred on
November 2, 2014.
¶5. Kewonna Bolton testified that on November 2, 2014, at around 2:30 a.m., she woke
up and discovered a man standing next to her bed. He had his fingers inside of her and was
fondling her. Bolton screamed out for her boyfriend, Frank Denard, who was asleep next to
her in the bed. Bolton testified that after she screamed, the intruder walked out of the
bedroom. Denard called out to ask who was there, and the intruder returned to the bedroom.
According to Bolton, the intruder yelled to Denard: “Now I got to kill you[.]” Bolton
testified that Denard and the intruder “tussl[ed]” over her and that she was pinned down
underneath them. At one point, the intruder picked up a lamp from Bolton’s bedside table
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and hit Denard across the head. Bolton testified that she “caught the butt end of the lamp.”
The intruder then ran out of the room, and Bolton called the police.
¶6. Bolton testified that she could not identify the intruder because all of the lights in the
house were off. However, Bolton stated that she could tell that the intruder was a male and
that he was wearing a white t-shirt.
¶7. Denard testified that in the early hours of November 2, 2014, he woke up when he
heard Bolton calling out his name. Denard stated that he observed someone standing next
to Bolton’s side of the bed. Denard called out and asked who was there, and the intruder ran
out of the room and then returned. Denard testified that when the intruder returned to the
bedroom, he yelled to Denard: “I got to kill you now.” Denard testified that the intruder
began to attack him, and Denard fought back. Eventually the intruder left the house, and
Bolton called 911.
¶8. Officer Erik Mitchum of the Hattiesburg Police Department testified that on
November 2, 2014, he responded to a 911 call reporting a burglary. When Officer Mitchum
arrived on the scene, Denard answered the door and was visibly upset. Officer Mitchum
observed that Denard was bleeding and that his lip was swollen. Bolton was sitting on the
couch crying. Officer Mitchum entered the bedroom and observed that it “was a mess.
Everything was scattered around.” He testified that he saw blood on a pillow and blood on
the bed. Officer Mitchum testified that after examining the crime scene, he determined that
the intruder entered the home through a window in the kitchen.
¶9. Investigator Jeff Byrd, a crime scene investigator with the Hattiesburg Police
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Department, testified that he processed the crime scene and collected evidence at Bolton and
Denard’s house. The evidence collected included: a wristwatch, a toboggan, a bandana, a
skullcap, fingernails, a broken cigarette, an unused but open condom, a pillow case with a
blood stain, and a cell phone. Investigator Byrd sent the evidence to the State crime lab for
testing. Investigator Byrd also testified that the police department eventually collected a
DNA swab from Gilmore’s mouth and sent it to the State crime lab.
¶10. Detective Narottam Holden testified that on November 2, 2014, he worked as a
detective for the Hattiesburg Police Department and responded to the 911 call regarding the
burglary at Bolton and Denard’s house. Detective Holden testified that after collecting a cell
phone from the crime scene, he received a call on the phone. Detective Holden answered the
phone. He testified that the caller was Gwendolyn Loflin, who informed Detective Holden
that the cell phone belonged to her son, Apaullo Williams. Detective Holden contacted
Williams. Williams informed Detective Holden that prior to 2:00 a.m. on November 2, 2014,
he was hanging out with Jermaine Young and Gilmore, and Gilmore requested to borrow
Williams’s phone. Williams told Investigator Holden that he eventually let Gilmore borrow
the phone. Williams then provided Detective Holden with the passcode so that Detective
Holden could examine the contents of the phone. Detective Holden testified that around
10:50 p.m. on November 1, 2014, someone had logged into Gilmore’s Facebook account on
the phone and posted material on Facebook.
¶11. Williams testified at trial that he and Gilmore are brothers. On the evening of
November 1, 2014, Williams stated that he, Gilmore, and Jermaine Young were at Williams
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and Gilmore’s mother’s house. According to Williams, Gilmore asked to borrow Williams’s
phone. Williams gave Gilmore his phone at approximately 9:00 p.m., and then Gilmore and
Young left the house. Williams testified that after giving Gilmore his phone, Williams did
not leave the house again that night.
¶12. Jana Burchfield, a forensic biologist with the Mississippi Crime Laboratory, testified
as an expert witness in the field of DNA analysis. Burchfield testified that she conducted a
DNA analysis on the evidence collected from Bolton and Denard’s house. Burchfield stated
that the DNA taken from the toboggan and skullcap recovered from the crime scene matched
the DNA samples obtained from Gilmore.
¶13. After a trial held January 11 and 12, 2017, the jury found Gilmore guilty of Count I
(burglary of a dwelling) and Count II (sexual battery). The trial court sentenced Gilmore to
serve fifteen years in the custody of the MDOC for Count I and twenty-five years for Count
II, with the sentence in Count II to run consecutively to the sentence in Count I. Gilmore
filed posttrial motions, and the trial court denied the motions.
¶14. On June 13, 2017, Gilmore appealed his conviction, sentence, and the denial of his
posttrial motions. Gilmore’s counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d743 (Miss. 2005), stating that there were no arguable issues to support an appeal. In Lindsey,
the Mississippi Supreme Court set forth the procedure to be followed when a defendant’s
attorney does not find any arguable issues to support an appeal. Id. at 748 (¶18). On October
10, 2018, Gilmore filed his pro se supplemental brief.
DISCUSSION
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¶15. In Lindsey, the Mississippi Supreme Court adopted a procedure “to govern cases
where appellate counsel represents an indigent criminal defendant and does not believe his
or her client’s case presents any arguable issues on appeal.” Lindsey, 939 So. 2d at 748
(¶18). First, “counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-[(5),(8)].” Id. In the brief,
counsel must certify that there are no arguable issues supporting the client’s
appeal, and he or she has reached this conclusion after scouring the record
thoroughly, specifically examining: (a) the reason for the arrest and the
circumstances surrounding arrest; (b) any possible violations of the client’s
right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court;
(e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits,
whether admitted into evidence or not; and (h) possible misapplication of the
law in sentencing.
Id. Next, counsel must forward a copy of the brief to the client, informing the client that
counsel was unable to discover any arguable issues in the record and advising the client that
he or she has a right to file a pro se brief. Id. If the defendant’s pro se brief raises any
arguable issue or the appellate court discovers any arguable issue in its review of the record,
then “the court must, if circumstances warrant, require appellate counsel to submit
supplemental briefing on the issue, regardless of the probability of the defendant’s success
on appeal.” Id. After the completion of the briefing, “the appellate court must consider the
case on its merits and render a decision.” Id.
¶16. In the present case, Gilmore’s appellate counsel submitted a brief in compliance with
Lindsey. Gilmore then filed a pro se supplemental brief, asserting the following assignments
of error: (1) his indictment was defective; (2) the State failed to meet its burden of proving
an essential element of sexual battery; (3) his conviction was against the weight of the
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evidence; (4) there was insufficient evidence to support the verdict; and (5) his counsel
provided ineffective assistance. We now turn to address the issues raised in Gilmore’s pro
se brief.
I. Defective Indictment
¶17. Gilmore argues that his indictment is defective for failing to include the words “as and
within the jurisdiction of this court” in Counts I and II.
¶18. “This Court reviews de novo the question of whether an indictment is fatally
defective.” Townsend v. State, 188 So. 3d 616, 619 (¶10) (Miss. Ct. App. 2016). We
recognize that “[a]n indictment must contain (1) the essential elements of the offense
charged, (2) sufficient facts to fairly inform the defendant of the charge against which he
must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of
a future prosecution for the same offense.” Davis v. State, 171 So. 3d 537, 540 (¶11) (Miss.
Ct. App. 2015) (quoting Gilmer v. State, 955 So. 2d 829, 836-37 (¶24) (Miss. 2007)). “So
long as from a fair reading of the indictment, taken as a whole, the nature and cause of the
charge against the accused are clear, the indictment is legally sufficient.” Id. (quoting
Harrison v. State, 722 So. 2d 681, 687 (¶22) (Miss. 1998)).
¶19. After a review of the record, we find that Gilmore did not object to the contents of the
indictment at the trial level and therefore waived this issue for appeal. Jerninghan v. State,
910 So. 2d 748, 750 (¶4) (Miss. Ct. App. 2005). “When ‘the formal defect is curable by
amendment . . . the failure to demur to the indictment in accordance with our statute’ will
waive the issue from consideration on appeal.” Id. (quoting Gray v. State, 728 So. 2d 36, 70
7
(¶169) (Miss. 1998)).
¶20. Despite this procedural bar, we find that Gilmore’s indictment was sufficient. Count
I of Gilmore’s indictment charged him with burglary of a dwelling, in violation of
Mississippi Code Annotated section 97-17-23 (Rev. 2014). Count I set forth as follows:
in Forrest County, Mississippi, on or about November 2, 2014, [Gilmore] did
unlawfully, willfully, feloniously, and burglariously break and enter the
dwelling house of Kewanna Bolton and/or Frank Denard, located at 407
Claiborne Avenue, Hattiesburg, Mississippi, with the intent to commit a crime
therein: Sexual Battery, contrary to the form of the statute in such cases made
and provided, and against the peace and dignity of the State of Mississippi.
¶21. Gilmore’s indictment on Count I contains the essential elements of burglary of a
dwelling and therefore meets the first requirement of an indictment. See Conner v. State, 138
So. 3d 158, 167 (¶29) (Miss. Ct. App. 2013) (“Burglary of a dwelling has two essential
elements: (1) breaking and entering of the dwelling house of another and (2) intent to commit
some crime therein.”); see also Miss. Code Ann. § 97-17-23(1).
¶22. Count II of Gilmore’s indictment charged him with sexual battery in violation of
Mississippi Code Annotated section 97-3-95(1)(a). Count II set forth as follows:
[I]n Forrest, Mississippi, on or about November 2, 2014, [Gilmore] did
willfully, purposely, unlawfully and feloniously commit Sexual Battery upon
Kewanna Bolton, without the consent of the said Kewanna Bolton, by
engaging in the act of sexual penetration, to-wit: digital penetration of
Kewanna Bolton’s vagina, contrary to the form of the statute in such cases
made and provided, and against the peace and dignity of the State of
Mississippi.
¶23. Count II of Gilmore’s indictment also contained the essential elements of the offense
of sexual battery. See Miss. Code Ann. § 97-3-95(1)(a) (“A person is guilty of sexual battery
if he or she engages in sexual penetration with another person without his or her consent.”).
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¶24. Furthermore, it is well-established that “[i]ndictments that track the language of the
Mississippi Code are sufficient to provide notice of the crime charged.” Pitts v. State, 249
So. 3d 472, 475 (¶8) (Miss. Ct. App. 2018) (quoting Graves v. State, 216 So. 3d 1152, 1158
(¶12) (Miss. 2016)). Gilmore’s indictment tracks the language of the statutes set forth in
section 97-17-23 and section 97-3-95(1)(a), respectively, and provided the essential elements
of the offense of sexual battery. Gilmore’s indictment also sets forth the date and the names
of the victims. See Gilmer, 955 So. 2d at 836-37 (¶24). We find no merit to Gilmore’s
argument that his indictment was defective.
II. Essential Element of Sexual Battery
¶25. Gilmore argues that the State erred by failing to have Bolton state her age and date of
birth. Gilmore claims that the age of the victim “is a vital essential element of proof” for
sexual battery. Gilmore cites to Washington v. State, 645 So. 2d 915, 920 (Miss. 1994),
where the supreme court reversed the case because the State failed to prove the victim’s age.
¶26. In Washington, 645 So. 2d at 917, the defendant was charged with sexual battery
pursuant to Mississippi Code Annotated section 97-3-95(1)(c), which states “a person is
guilty of sexual battery if he or she engages in sexual penetration with: . . . (c) A child under
the age of fourteen (14) years.” (emphasis added). In the present case, Gilmore was charged
under section 97-3-95(1)(a), which states that “[a] person is guilty of sexual battery if he or
she engages in sexual penetration with another person without his or her consent.” The age
of the victim is not an essential element of section 97-3-95(1)(a). Accordingly, the State did
not have to set forth proof as to Bolton’s age. We find this issue lacks merit.
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III. Weight of the Evidence
¶27. Gilmore argues that since the State failed to prove the age of the victim, Gilmore’s
conviction was against the weight of the evidence. Gilmore asserts that the failure of the
State and the trial court “to make known the victim[’]s age” violates his right to due process.
¶28. “This Court reviews challenges to the weight of the evidence by viewing ‘the evidence
in the light most favorable to the verdict’ and determining whether the verdict is ‘so contrary
to the overwhelming weight of the evidence that to allow it to stand would bring about an
unconscionable injustice.’” Williams v. State, 136 So. 3d 446, 450 (¶13) (Miss. Ct. App.
2014) (quoting Jones v. State, 95 So. 3d 641, 647 (¶20) (Miss. 2012)).
¶29. As previously stated, the age of the victim is not an essential element of section 97-3-
95(1)(a), the statute under which Gilmore was charged. Gilmore’s argument therefore lacks
merit. Additionally, Gilmore provided no authority or explanation to show how his due
process rights were violated. Arguments made on appeal “shall contain the contentions of
appellant with respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(7);
Gray v. State, 202 So. 3d 243, 260 (¶63) (Miss. Ct. App. 2015).
IV. Sufficiency of the Evidence
¶30. Next, Gilmore argues that the State failed to present “enough” evidence to prove that
Gilmore committed any crime. Gilmore maintains that no one saw him in the house, and the
victims testified that they could not see who was in the house. Gilmore also asserts that the
items found at the house “could have been left by anyone.”
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¶31. We apply a de novo review to challenges to the sufficiency of the evidence. Sanford
v. State, 247 So. 3d 1242, 1244 (¶10) (Miss. 2018). In so doing, we view the evidence “in
the light most favorable to the State.” Id. “The relevant question is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Id. (quoting Hearn v. State, 3 So. 3d 722, 740 (¶54) (Miss. 2008)).
¶32. At trial, Bolton and Denard testified that an uninvited intruder was in their home
during the early morning hours of November 2, 2014. Bolton testified that she woke up and
discovered a man standing next to her with his fingers inserted into her vagina. Officer
Mitchum testified that the intruder entered the house through a window in the kitchen.
Detective Holden testified that he recovered a phone from the crime scene, which he
eventually connected to Williams. Williams testified that he let his brother, Gilmore, use his
phone on the evening of November 1, 2014. Detective Holden also testified that someone
had accessed Gilmore’s personal Facebook account and made a post at 10:50 p.m. on
November 1, 2014, approximately four hours before the incident at Bolton and Denard’s
house. The State also submitted evidence showing that Gilmore’s DNA was found on items
collected from the crime scene.
¶33. After our review, we find that the State presented sufficient evidence to establish the
essential elements of burglary of a dwelling and sexual battery. Gilmore’s argument
regarding the sufficiency of the evidence lacks merit.
V. Ineffective Assistance of Counsel
¶34. Finally, Gilmore argues that his counsel was ineffective. In support of his claim,
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Gilmore restates his first four assignments of error as proof of his trial counsel’s ineffective
service: his trial counsel failed to object to a faulty indictment; his trial counsel failed to
object to the State’s failure to set forth the age of the victims; his trial counsel “should have
objected to the weight of the evidence as it violates due process”; and his counsel should
have objected to the insufficient evidence presented at trial.
¶35. In order to succeed on a claim for ineffective assistance of counsel, Gilmore must
show that his counsel’s performance was deficient and that the deficiency prejudiced the
defense of his case. Burns v. State, 813 So. 2d 668, 673 (¶14) (Miss. 2001) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). “Generally, ineffective assistance claims are more
appropriately brought during postconviction-relief (PCR) proceedings.” Ford v. State, 205
So. 3d 1172, 1177 (¶19) (Miss. Ct. App. 2016) (quoting Havard v. State, 94 So. 3d 229, 240
(¶35) (Miss. 2012)). As to claims for ineffective assistance of counsel raised on direct
appeal, this Court has held that the merits of such claims “should be addressed only when (1)
the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties
stipulate that the record is adequate to allow the appellate court to make the finding without
consideration of the findings of fact of the trial court.” Id. (quoting McSwain v. State, 163
So. 3d 966, 969 (¶10) (Miss. Ct. App. 2014)).
¶36. After our review, we find that the record before us fails to affirmatively show
ineffective assistance of counsel. The parties have also failed to stipulate that the record is
adequate to allow this Court to make a finding without consideration of trial court’s findings
of fact. See id. at 1177-78 (¶20). Additionally, Gilmore failed to assert any facts or legal
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authority to support his claim that his attorney’s actions were improper. Accordingly, we
deny relief on this issue without prejudice so that Gilmore may raise his claim of ineffective
assistance of counsel in PCR proceedings.
¶37. AFFIRMED.
BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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