290 So.3d 1273
Miss. Ct. App.2020Background
- In 2008 McGilvary became fixated on salon worker Heather Morgan after she cut his hair; he repeatedly visited, called, and tried to contact her despite being banned.
- McGilvary followed and confronted Morgan on multiple occasions; police arrested him and found weapons and duct tape in his car; Morgan feared for her safety and changed her number multiple times.
- On January 7, 2011, McGilvary was convicted in municipal court on three stalking counts involving Morgan.
- On December 9, 2015, Morgan found a handwritten note on her vehicle reading “Call me 601-600-1470 I’m not mad at you”; police linked the number and handwriting to McGilvary via a notepad, a ringing cell phone, and a binoculars receipt in his vehicle.
- McGilvary was indicted for aggravated stalking (alleging the December 9, 2015 act plus prior convictions), convicted by a jury on May 10, 2018, and sentenced to five years in MDOC; he appealed claiming defects in the indictment, a defective jury instruction, and insufficient evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McGilvary) | Held |
|---|---|---|---|
| 1. Whether indictment fatally defective for failing to plead a “course of conduct” | Indictment tracks statute and, with the charged act plus recited prior convictions, gives adequate notice and establishes a course of conduct | Indictment only alleges the single December 9, 2015 act and thus fails to plead the statutorily required “course of conduct” | Indictment sufficient — tracking statute and listing prior convictions plus the charged act adequately alleged course of conduct; no prejudice shown |
| 2. Whether State’s jury instruction S-1 was erroneous/constructively amended the indictment | Instruction correctly set out elements and cited prior convictions; omission of phrase “course of conduct” did not change essential elements | Omission of “course of conduct” in S-1 constructively amended the indictment and prejudiced defense | Issue procedurally barred (no trial objection) and, on the merits, no constructive amendment — S-1 encompassed the elements by specifying the incident and prior convictions |
| 3. Sufficiency of the evidence to support aggravated-stalking conviction | Evidence (note, matching phone number/handwriting, items in vehicle, prior convictions) permits a rational jury to find aggravated stalking beyond a reasonable doubt | State failed to prove the statutorily required course of conduct and therefore evidence was insufficient | Evidence sufficient when viewed in prosecution’s favor; prior convictions plus the December 9 incident established the requisite course of conduct |
Key Cases Cited
- Beal v. State, 86 So. 3d 887 (Miss. 2012) (standard of review for sufficiency and plea challenges)
- Newell v. State, 175 So. 3d 1260 (Miss. 2015) (review of trial court’s decision to give jury instructions)
- Green v. State, 269 So. 3d 75 (Miss. 2018) (sufficiency review — accept evidence supporting verdict and reasonable inferences)
- Goff v. State, 14 So. 3d 625 (Miss. 2009) (purpose of indictment: notice and concise statement of elements)
- Warren v. State, 187 So. 3d 616 (Miss. 2016) (an indictment that tracks statute is generally sufficient)
- Jones v. State, 856 So. 2d 285 (Miss. 2003) (indictment sufficiency measured by prejudice to defendant’s preparation)
- Harrison v. State, 722 So. 2d 681 (Miss. 1998) (fair reading of the indictment taken as a whole determines sufficiency)
- Graham v. State, 185 So. 3d 992 (Miss. 2016) (constructive amendment doctrine and when variances are reversible)
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (standard for reviewing sufficiency of the evidence)