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Gilmore v. State

Court of Appeals of Mississippi

April 28, 2015

STEDMAN D. GILMORE A/K/A STEDMAN DAVID GILMORE A/K/A DAVID GILMORE A/K/A STEDMAN GILMORE, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: CARROLL COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/07/2013. TRIAL JUDGE: HON. JOSEPH H. LOPER JR. TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY OF A DWELLING AND SENTENCED TO TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE AND $30 IN RESTITUTION.

AFFIRMED.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE M. MCMILLIN.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.

BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 877

NATURE OF THE CASE: CRIMINAL - FELONY

ROBERTS, J.

¶1. Stedman Gilmore appeals his conviction in the Carroll County Circuit Court for one count of burglary of a dwelling and his sentence of twelve years in the custody of the Mississippi Department of Corrections (MDOC). Gilmore asks this Court to review the circuit court's refusal of two jury instructions that he claims supported his theories of defense. We find that the circuit court did not abuse its discretion in refusing these instructions; therefore, we affirm Gilmore's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. In the early morning hours of May 29, 2013, Katherine Armstrong was in her home in Vaiden, Mississippi, when she heard noises and saw lights outside of her bedroom window. Armstrong dialed 911, and while on the phone with the 911 dispatcher, she was able to identify, and relay the information of, the color and model of a car driving in front of her house, as well as a few characters from the car's license plate. Armstrong then inspected her front yard, where she discovered a shotgun that was not hers.

¶3. Carroll County Deputy Sheriff Ken Banks received the information about the car from the 911 dispatcher, and came upon a car matching the description and driving in the same direction as described.[1] According to Deputy Banks, it was " almost [3 a.m. in] a very rural area [where] you do [not] expect to see any traffic." Deputy Banks initiated a traffic stop after seeing the driver and front passenger not wearing seatbelts, and he ordered Gilmore, the car's driver, to exit the vehicle for safety reasons.[2] Upon a search of the car, Deputy Banks discovered flashlights and other " out of place all at one time" items such as arrows, a bow, a shotgun, and a gas can. Deputy Banks then went to interview Armstrong, where he found the shotgun in the yard. Deputy Banks asked Armstrong if there were any cabins close to her home; Armstrong explained there was a cabin slightly down the road. Deputy Banks located the cabin, which had a locked gate at the driveway, and he immediately spotted recent footprints, and an arrow matching the other arrows recovered from the car. Deputy Banks later testified that these footprints matched the shoes belonging to Gilmore. According to Deputy Banks, he " continued to follow the trail of footprints" toward the cabin, where he discovered more arrows in the yard. He also noticed a couple of open windows, enabling him to easily look into the cabin. He

Page 878

explained that on the inside of the cabin, " the couches were flipped over, that stuff was str[e]wn out, and it appeared to have been ransacked." Deputy Banks spoke with Ken McDougal, the cabin's owner, who confirmed the items recovered ...


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