Olevia Davis v. State of Mississippi; ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-KA-00213-COA
OLEVIA DAVIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/10/2019
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/07/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.
McCARTY, J., FOR THE COURT:
¶1. Olevia Davis was convicted of possession of a firearm by a convicted felon. He was
sentenced as a habitual offender to serve eight years in the custody of the Mississippi
Department of Corrections. Finding no arguable issues for appeal, Davis’s appellate counsel
filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005). Davis was given
additional time to file a supplemental brief but did not.
FACTS
¶2. While at the Elks Lodge in Biloxi, Mississippi, for a dance contest, Davis had an
altercation with another patron. Gerrell Elzy, the security guard at the Lodge, did not witness
the beginning of the altercation but did see Davis charge another man while brandishing a
broken bottle. After attempting to calm Davis, Elzy removed him from the premises.
Outside, Elzy witnessed Davis arguing again with the same man from inside the Lodge. Elzy
heard Davis say he would be back and then saw him walk across nearby railroad tracks. Elzy
testified that Davis returned approximately thirty minutes later holding a gun. While Elzy
was calling 911, he saw Davis fire the gun into the air. Davis left again, walking back across
the railroad tracks between two houses. Elzy, still on the phone with a 911 operator,
followed Davis.
¶3. Law enforcement officers arrived quickly, and Elzy identified Davis as the man who
had fired the gun into the air. Davis was arrested and searched but was not armed. After a
search, officers found the gun behind the house that Elzy saw Davis run behind.
¶4. Davis testified in his defense that he never had a gun and that Elzy confused him with
the man from the fight inside the Lodge.
DISCUSSION
¶5. Here, Davis’s appellate counsel complied with the requirements set forth in Lindsey.
See Lindsey, 939 So. 2d at 748 (¶18). Davis’s appellate counsel stated that they reviewed the
following: (a) the reason for the arrest and the circumstances surrounding Davis’s arrest; (b)
any possible violations of Davis’s right to counsel; (c) the entire trial transcript and contents
of the record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all
jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible
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misapplication of the law in sentencing; (i) the indictment and all of the pleadings in the
record; (j) any possible ineffective assistance of counsel; and (k) whether the verdict is
supported by the overwhelming weight of the evidence.
¶6. Our independent and thorough review of the record has not revealed any arguable
issues that would warrant reversal. See Taylor v. State, 162 So. 3d 780, 787 (¶18) (Miss.
2015). Accordingly, we affirm Davis’s conviction and sentence.
¶7. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ.,
CONCUR.
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