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Gilmore v. State

Court of Appeals of Mississippi

July 16, 2019

THOMAS GILMORE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/25/2017

          FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE

          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

          BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

          CARLTON, P.J.

         ¶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 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. ...


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