OF JUDGMENT: 01/25/2017
FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL
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
CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
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.
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.
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
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.
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 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.
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.
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.
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.