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Gill v. State

Court of Appeals of Mississippi

November 19, 2013

David GILL a/k/a David A. Gill, Appellant
v.
STATE of Mississippi, Appellee.

Page 129

[Copyrighted Material Omitted]

Page 130

Carrie A. Jourdan, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

GRIFFIS, P.J.

¶ 1. David Gill appeals his conviction of sexual battery. Gill argues: (1) the trial court erred when it denied his post-trial motions, (2) the trial court committed plain error in allowing an erroneous jury instruction, and (3) he was provided ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On August 9, 2010, Gill was indicted for sexual battery of D.G., a female under the age of eighteen. Gill was indicted under Mississippi Code Annotated section 97-3-95(2) (Rev.2006) for sexual battery of a minor by one in a position of authority over the minor.

¶ 3. D.G.[1] testified that Gill was her grandfather. She lived in his home along with her father, J.G. When she was fifteen, D.G. and her father moved into Gill's home after the death of her mother. D.G. also testified that her father worked away from home during the week, leaving her often alone with her grandfather.

¶ 4. D.G. testified that she was alone at home with Gill on June 12, 2010. After Gill told D.G. that he wanted to talk to her, she went into Gill's bedroom. He removed her clothes. He then penetrated her vagina with his tongue and fingers. D.G. remembered that Gill slapped her in the face as well, which resulted in an abrasion on her lower lip. D.G. also testified that Gill attempted to have sex with her. On redirect, D.G. testified that she spent as much time as she could away from home because Gill made her uncomfortable. She did not want to have to deal with him or his demands, such as not being allowed to have her friends visit her in his home. She also claimed that there were other similar incidents during the six or seven months preceding the incident in question.

¶ 5. After the June 12 incident, D.G. went to the emergency room at East Mississippi Medical Center in West Point, Mississippi. Daniel Livingston testified that he was an emergency-room nurse at East Mississippi Medical Center when D.G. came in for an examination. Livingston examined D.G. He testified that D.G. had an abrasion on her lip, which D.G. claimed was caused by her grandfather slapping her. Livingston also testified that D.G. was upset and crying and told him she had been penetrated by her grandfather.

¶ 6. James Faris, a Lowndes County Sheriff's Department investigator, interviewed D.G. and began his investigation of the incident. Gill unexpectedly came to Investigator Faris's office to make a statement. In his first statement, Gill denied having touched D.G. He also claimed that she was drinking his liquor and smoking marijuana, and that she had previously had a child. Gill believed she was making accusations because she wanted to move

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out on her own. Gill was willing to have a mouth swab taken for DNA-analysis purposes.

¶ 7. Gill contacted Investigator Faris again to make a second statement. This time, Gill told Investigator Faris he wanted to tell the truth. Gill gave a statement in which he admitted to having penetrated D.G., but claimed that she consented to this activity because he was paying ...


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