Gill v. State
126 So. 3d 128
| Miss. Ct. App. | 2013Background
- Gill was indicted in 2010 for sexual battery of a minor granddaughter (D.G.), age 16 at the time, by someone in a position of authority.
- D.G. testified Gill, her grandfather, lived with her and her father; her father worked away from home.
- On June 12, 2010, D.G. was alone with Gill; Gill allegedly penetrated with his tongue and fingers and slapped her.
- Gill later admitted in a police interview to penetrating D.G. and claimed it was paid activity; earlier statement denied touching her.
- Evidence showed D.G. was under eighteen and Gill was seventy; he was in a position of control over her during the incident.
- Gill was convicted of sexual battery by one in a position of authority and sentenced to 20 years in MDOC with 5 years post-release supervision and a $5,000 fine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of position-of-trust evidence | Gill contends State failed to prove trust/authority over D.G. | Gill argues lack of defined position of trust under statute. | Sufficiency found; Gill in position of trust/authority existed. |
| Plain error from jury instruction S-2 | S-2 misleads by implying automatic trust due to being grandfather. | Instruction accurately tracks the statute; no plain error. | No reversible error; instruction proper when read as a whole. |
| Effective assistance of counsel | Counsel deficient in multiple trial actions prejudiced outcome. | No showing of deficient performance or prejudice; strategy within range. | No direct reversal; issue remains available via post-conviction relief. |
Key Cases Cited
- Campbell v. State, 125 So.3d 46 (Miss. 2013) (supreme court reinstates Campbell conviction; sufficient evidence of trust/authority)
- Campbell v. State, 125 So.3d 58 (Miss. Ct. App. 2012) (reversed; rehabilitation not necessary when defining position of trust)
- Wells v. State, 57 So.3d 40 (Miss. Ct. App. 2011) (legal sufficiency standard for JNOV review)
- Hopson v. State, 749 So.2d 227 (Miss. Ct. App. 1999) (evidence sufficiency for sexual-battery credibility)
- Blackmon v. State, 803 So.2d 1253 (Miss. Ct. App. 2002) (interpretation of 'care and control' of a minor for statutory element)
- Caston v. State, 823 So.2d 473 (Miss. 2002) (contemporaneous objection required; procedural bar for asserted errors)