Gilmer v. State
| Docket Number: | 2004-KA-02236-SCT | |
| Oral Argument: | 01-16-2007 | |
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| Supreme Court: | Opinion Link Opinion Date: 05-10-2007 Opinion Author: Smith, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Photographing a person in privacy without permission - Sufficiency of evidence - Defective indictment - Constitutionality of statute - Section 97-29-63 - Jury instructions Judge(s) Concurring: Waller, P.J., Easley, Carlson and Randolph, JJ. Dissenting Author : Diaz, P.J. Dissent Joined By : Graves and Dickinson, JJ. Dissenting Author : Dickinson, J. Dissent Joined By : Diaz, P.J., and Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-20-2004 Appealed from: Madison County Circuit Court Judge: Samac Richardson Disposition: After a jury trial, the 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. District Attorney: David Byrd Clark Case Number: 2003-0271 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Eddie Gilmer |
Julie Ann Epps; Michael V. Ward |
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| Appellee: | State of Mississippi | Charles W. Maris; W. Daniel Hinchcliff; Jim Hood; Jacob Ray |
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| Topic: | Photographing a person in privacy without permission - Sufficiency of evidence - Defective indictment - Constitutionality of statute - Section 97-29-63 - Jury instructions |
| Summary of the Facts: | Eddie Gilmer was convicted of five counts of photographing a person in privacy without permission. For each count the court sentenced Gilmer to serve a term of five years, each to run consecutively. 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. Gilmer appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Gilmer argues that under the plain language of section 97-29-63, the statute under which he was convicted, the evidence was insufficient to prove two of the elements of the statutory crime. He argues that the evidence did not sufficiently show he “secretly” recorded the person he photographed based on the fact that she was aware that Gilmer was recording her on each occasion for which he was convicted. The undisputed facts are that Gilmer recorded her starting around 9:00 at night, sitting inside his vehicle, the interior of which was dark, about 87 feet away from her 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 the 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.” Gilmer also argues that the evidence is insufficient to prove the location element – that the recording took place where a person would intend to be in a state of undress and have a reasonable expectation of privacy. The statute explicitly names certain places, which fit the preceding descriptors, 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. Consistent with the plain language of the statute, when the prohibited recording happens in one of the explicitly listed locations, the State need not prove at trial, and the appellate court need not analyze, whether these places are “where a person would intend to be in a state of undress and have a reasonable expectation of privacy,” as these certain places are locations deemed as a matter of law to satisfy such qualifications. However, when the prohibited recording occurs in a location other than one of those explicitly listed, the State must show at trial and the appellate court must determine whether the location was one where a person would intend to be in a state of undress and have a reasonable expectation of privacy. Proof that Gilmer recorded the person while she was in her apartment is equivalent to proving that she was recorded while in her private dwelling. Therefore, there was sufficient evidence that the location element was met. Issue 2: Defective indictment Gilmer argues that the indictment is defective because it fails to include an essential statutory element. An indictment must contain the essential elements of the offense charged, sufficient facts to fairly inform the defendant of the charge against which he must defend, and sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Gilmer argues that the location element is incomplete in that it is lacking the statutory language “when such a person is located in a place where a person would intend to be in a state of undress.” The person being “inside of her apartment,” as stated in the indictment, is equivalent to her being inside her private dwelling. Thus, as the statute assigns to the language in the indictment the same meaning as the language the absence of which Gilmer asserts is fatal, the indictment language is sufficient. Issue 3: Constitutionality of statute Gilmer argues that section 97-29-63 is overbroad. Since conviction under section 97-29-63 requires a showing that the defendant acted with a lewd intent, recordings which meet all the other statutory elements – secretly recording, lack of consent, and in a protected location, such recordings which might be properly undertaken by a police officer – are put in no danger by this statute. Issue 4: Jury instructions Gilmer argues that a jury instruction is incorrect because it assumes that a private dwelling is a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy. He also argues that the jury instructions are defective since they do not inform the jury that it must find that the person had a subjective expectation of privacy as well as that her expectation must have been reasonable. Since the showing that the victim was “in her private dwelling” alone is sufficient to meet the victim location element, the finding beyond a reasonable doubt that the victim was “in her private dwelling” is alone a sufficient jury instruction with regard to that element of the statutory crime. |
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