Gilmer v. State

• Decision Date: 10 May 2007
• Docket Number: No. 2004-KA-02236-SCT.,2004-KA-02236-SCT.
• Citation: 955 So.2d 829
• Parties: Eddie GILMER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

955 So.2d 829

Eddie GILMER v. STATE of Mississippi.

No. 2004-KA-02236-SCT.

Supreme Court of Mississippi.

May 10, 2007.

Julie Ann Epps, Michael V. Ward, Canton, attorneys for appellant.

Office of the Attorney General by Jacob Ray W. Daniel Hinchcliff, attorneys for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. This case comes to the Court on first impression as to whether the evidence was sufficient to support a conviction under the "video voyeur" statute, Miss.Code Ann. § 97-29-63 (Rev.2006). Finding that the evidence provided satisfied the statute, we affirm the defendant's conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eddie Gilmer was an elected constable in Madison County at the time of his alleged criminal behavior. He served warrants in Madison County, including at the Pear Orchard Apartments in Ridgeland, Mississippi, where Debra Clayton occupied a second-floor apartment. In March 2003, Clayton noticed that Gilmer would arrive at the Pear Orchard Apartments in his official vehicle marked "Madison County Constable, District Number 3, Eddie Gilmer" around 9:00 p.m. and park his car in a space in the apartment complex parking lot with his vehicle facing Clayton's apartment about 87 feet from her balcony. Gilmer would stay in his parked car for an hour or an hour and a half before driving away.

¶ 3. Clayton contacted the police about Gilmer's suspicious behavior. Consequently, police officers conducted five separate surveillance operations. Officers captured Gilmer on tape, recording Clayton with a hand-held video camera while she was sitting inside her apartment in front of her balcony door, which was open about eighteen inches. The evidence demonstrated that, while filming, Gilmer often zoomed in on Clayton's chest and crotch area. Gilmer was indicted on May 23, 2003, charged with ten counts of photographing a person in privacy without permission. A jury trial culminated in a conviction on counts six through ten, and, on August 20, 2004, for each count the trial court sentenced Gilmer to serve a term of five years, each to run consecutively, in the custody of the Mississippi Department of Corrections. The judge suspended the sentences for two counts, resulting in a sentence of fifteen years in prison and five years of supervised probation upon release.

¶ 4. Gilmer filed a Motion for New Trial and/or Judgment of Acquittal Notwithstanding the Verdict (JNOV) on August 23, 2004. The trial court denied Gilmer's motion, and Gilmer timely filed an appeal to this Court seeking reversal of that denial as well as of the jury verdict of guilty. Gilmer raises five errors on appeal:

I. The Trial Court Erred in Overruling Gilmer's Motions for Directed Verdict as Well as His Post-trial Motions for JNOV and New Trial Due to the Insufficiency of the Evidence.

II. The Trial Court Committed Reversible Error in Overruling Gilmer's Motion to Quash the Indictment for Failure to State an Essential Element of the Offense.

III. The Statute Is Unconstitutionally Vague and Overbroad on its Face and as Applied to Gilmer.

IV. The Trial Court Erred in Overruling Gilmer's Objection to the Instructions Which Failed to Require That the Jury Find That Clayton Was in a Place Where a Person Would Intend to Be in a State of Undress and Have a Reasonable Expectation of Privacy.

V. This Court Should Reverse Gilmer's Conviction Because the Jury Was Not Told That it Had to Find That Clayton's Expectation of Privacy, If Any, Had to Be Reasonable under the Circumstances.

DISCUSSION

I. Whether the Trial Court Erred in Overruling Gilmer's Motions for Directed Verdict as Well as His Post-trial Motions for JNOV and New Trial Due to the Insufficiency of the Evidence.

¶ 5. This Court reviews whether the Court erred in denying a motion for directed verdict under a de novo standard of review. White v. Stewman, 932 So.2d 27, 32 (Miss.2006). "[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows `beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.'" Ivy v. State, 949 So.2d 748, at *9 (Miss.2007) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 6. When considering a trial court's denial of a motion for judgment notwithstanding the verdict, the standard of review is de novo. Poole v. Avara, 908 So.2d 716, 726 (Miss.2005). The trial court must view the evidence in the light most favorable to the non-moving party and look only to the sufficiency, and not the weight of the evidence. Id. When evaluating the denial of a motion for new trial, this Court will overturn the trial court only if it abused its discretion in that it denied a new trial though the verdict was against the overwhelming weight of the evidence. Id. at 727.

¶ 7. The weight and the sufficiency of the evidence are not synonymous. Id. at 726. When determining whether the evidence was sufficient, the critical inquiry is whether the evidence is of such quality that reasonable and fairminded jurors in the exercise of fair and impartial judgment might reach different conclusions. Id. When determining whether the verdict was against the overwhelming weight of the evidence, we will not order a new trial unless we are convinced that the verdict was contrary to the substantial weight of the evidence so that justice requires that a new trial be granted. Id. at 727.

¶ 8. Gilmer places in dispute for the first time the interpretation of Miss.Code Ann. § 97-29-63, the statute under which he was convicted, asserting that according to the plain language of the statute, the evidence was insufficient to prove two of the elements of the statutory crime.

¶ 9. The interpretation of a statute is reviewed de novo by this Court. McLamb v. State, 456 So.2d 743, 745 (Miss.1984). The first question in interpreting a statute is whether the statute is ambiguous. Harrison v. State, 800 So.2d 1134, 1137 (Miss.2001). When a statute is unambiguous, this Court applies the plain meaning of the statute and refrains from the use of statutory construction principals. Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). The court may not enlarge or restrict a statute where the meaning of the statute is clear. State v. Traylor, 100 Miss. 544, 558-59, 56 So. 521, 523 (1911). In interpreting statutes, this Court's primary objective is to employ that interpretation which best suits the legislature's true intent or meaning. Clark v. State ex. rel Mississippi State Med. Ass'n, 381 So.2d 1046, 1048 (Miss.1980).

¶ 10. Miss.Code Ann. § 97-29-63 (Rev. 2006) reads:

Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony and upon conviction shall be punished by a fine of Five Thousand Dollars ($5,000.00) or by imprisonment of not more than five (5) years in the custody of the Department of Corrections, or both.

¶ 11. We find that Miss.Code Ann. § 97-29-63 is not ambiguous. The statute provides four elements to this statutory crime: (1) intent — "lewd, licentious or indecent intent;" (2) act — "secretly photograph[ing], film[ing], videotap[ing], record[ing] or otherwise;" (3) lack of consent — "without the permission of [the victim];" and (4) protected location — "when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom." See Miss.Code Ann. § 97-29-63 (Rev.2006).

¶ 12. Regarding the first element, lewd intent, and the third element, lack of consent, Gilmer does not raise insufficiency of evidence of the State's proof on appeal. Gilmer's first assertion of insufficiency concerns the second element, the act of "secretly" recording the victim. Gilmer contends that the evidence did not sufficiently show he "secretly" recorded Clayton based on the fact that Clayton was aware that Gilmer was recording her on each occasion for which he was convicted.

¶ 13. As we are applying the plain meaning of this statute, we will look to Webster's Dictionary. "Secretly" is defined as "in secret," "in secrecy," and "not openly." Webster's Third New International Dictionary unabridged 2052 (1986). Of numerous definitions for "secret," two pertinent ones are "done or undertaken with evident purpose of concealment" and "constructed so as to elude observation or detection." Id.

¶ 14. The undisputed facts are that Gilmer recorded Clayton starting around 9:00 at night, sitting inside his vehicle, the interior of which was dark, about 87 feet away from Clayton's apartment, using a camera and its zoom feature and carrying in his vehicle two sets of binoculars. The time of day, dark location, distance from Clayton's apartment and equipment for producing close-up recordings from such a distance clearly indicate an attempt by Gilmer to conceal his actions and elude observation or detection. Therefore, the facts were sufficient to support a jury finding beyond a reasonable doubt that Gilmer acted "secretly" in recording Clayton.

¶ 15. Gilmer further contends that the evidence is...