IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00467-COA BILLY BERGERON A/K/A BILLY J. BERGERON A/K/A BILLY JAY BERGERON A/K/A BILLY JAMES BERGERON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/09/2015 TRIAL JUDGE: HON. EDDIE H. BOW EN COURT FROM W HICH APPEALED: JASPER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: DANIEL CHRISTOPHER JONES NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF MOLESTATION AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W I THOUT ELIGIBILITY OF PAROLE OR EARLY RELEASE DISPOSITION: AFFIRMED – 06/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. A Jasper County jury convicted Billy Bergeron of m olestation. Following his unsuccessf

ul p o st-trial m otions, he appeals. However, his appellate counsel has f iled aLindsey 1 brief , s tating that h e d iligently searched the r e c ord, but he could not f ind any arguable is s u e s f

o r a p pellate review. Bergeron did not f ile a pro se brief

. Af ter an independent review of

the record, we agree that there are no arguable issues. ¶2. Finding no error, we af f irm

. FACTS ¶3. On an unspecif

ied date, “Rachel” 2 inf orm ed h er m other that B e rgeron had inappropriately touched her a pproxim ately one w eek earlier. R a chel was seven y ears old at that t im e . On March 1 5, 2013, Rachel’s m other t o o k h er to the Jasper County Sherif f ’s Departm ent, w here Rachel spoke with Investigator Chris Thom p son. R achel told
I n vestigator Thom

pson that Bergeron h ad u sed his hand to f ondle her chest and “privat e , ” and he tried to put a vibrating “peach thing” 3 on her “private” on top of her clothes. Later, f orensic i nterviewer D r. Olga Kahle conducted a m ore thorough interview of Rachel at the
W e sley House in Meridian, Mississippi. On February 18, 2014, Bergeron w as indicted and charged with m o lestation. ¶4. Bergeron went to trial during two day s i n February 2015. The court held that Rachel, who was nine y ears old at the tim e, was com petent to testif

y . T he c o u r t a l s o granted the
State’s m otion to a llow certain testim ony f rom Investigator Thom

pson and Dr. Kahle, under

1 L in d sey v. S ta te , 9 3 9 S o . 2 d 7 4 3 (M iss. 2 0 0 5 ).

2 We u se a p seu d o n y

m to p ro t ect th e m in o r v i ctim ’s id en tity

. 3 T h e “ p e a c h th i n g ” w as later d eterm in ed to b e a sex to y . D u rin g a search o f B e rg ero n ’s h o m e, it w as f o u n d in th e lo catio n t h a t R a c h el h ad d escrib ed

. T h e S tate in tro d u ced it as ev id en ce at trial. 2the tender-y ears exception. Investigator Thom pson testif

ied f o r the State; however, the State did not call D r. Kahle. Bergeron c hose to t estif y . A ccording to B ergeron, he n ever f ondled Rachel. Bergeron did not call any other witnesses in his def ense. ¶5. The j ury f

o und B e r g e r o n guilty of m o lestation under Mississippi Code Annotated section 97-5-23(1) (Rev. 2014). On March 13, 2015, the trial court sentenced Bergeron to
f if teen y ears in the c ustody of the Mississippi D epartm ent of C orrections, without eligibility
f or parole or early release. The trial court also advised Bergeron regarding his obligation to register as a sex of

f ender. This appeal f

ollowed.
DISCUSSION ¶6. In Lindsey , 9 39 So. 2d at 748 (¶18), t h e M i s s i ssippi Suprem e Court established the requirem ents when an appellant’s counsel d oes not f ind any a rguable issues f or appellate review: (1) Counsel m

ust f ile and serve a brief in com pliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4), (7) . . . . (2) As a part of the brief f

iled in com

pliance with Rule 2 8, c o unsel m ust certif y that there are no arguable issues supporting the client’s appeal, a n d he or s he has reached this conclusion af ter scouring the r ecord thoroughly , s pecif i cally exam ining: ( a) the reason f or the arrest and the circum s tances surrounding arrest; (b) any possible violations of the client' s right t o counsel; (c) the entire trial transcript; ( d ) all rulings of the trial court; (e) possible prosecutorial m isconduct; (f

) all jury instructions; (g) all e xhibit s , w hether adm itted into evidence or not; and (h) possible m isapplication of the law in sentencing . . .

. (3) Counsel m

ust then send a c opy of the app e l late brief t o the def endant, inf orm the client t hat counsel c ould f i nd no arguable issues in the record, and advise the client of

his or her right to f

ile a pro se brief

. . . . (4) Should the def

endant then r aise any arguable issue o r should the appellate

3court discover any arguable issue in i ts re v i e w o f t h e record, t he c ourt m ust, if circum stances warrant, r eq u i r e a ppellate counsel to subm i t supplem ental brief ing o n the issue, regardless of the probability of the def endant’s success on appeal . . . . (5) Once brief

ing is com

plete, the appellate court m u st consider the case on its m erits and render a decision. ¶7. Here , B ergeron’s appellate counsel f iled a brief asserting that he has diligently and thoroughly searched b oth the procedural and f a ctual history of this case and the record a s a whole, but he was unable to f ind a ny arguable issues t hat he c o uld present in good f aith f or appellate review. Bergeron’s appel l a te counsel also asserts that he has reviewed and

exam ined: (1) t he reason f or B ergeron’s arrest and the circum stances surrounding it; (2) any possible violations of Bergeron’s right to counsel; (3) the entire t rial t r a n script; (4) all rulings of the trial court; (5) possible prosecutorial m isconduct; (6) all jury instructions; (7) all exhibits, whether adm itted into evidence or not; (8) possible m isapplication of the law in sentencing; (9) the i ndictm ent and all t h e p l e adings in the record; (10) any possible inef f ective-assistance-of

- c o u n sel issues; (11) any speedy -trial issues; ( 12) any Fourteenth
Am endm ent due-process issues; and (13) any other possible reviewable issues. See id. Also, Bergeron’s appellate counsel sent a copy of the brief to Bergeron, inf orm ing him of his right

to f ile a pro se brief

. Bergeron was given f

orty day s to f

i le a pro se brief

; however, he has declined to do s o . Our independent review of the record has not revealed any arguable issues that would require supplem ental brief ing. Acc o r d i n g l y , we af f irm the circuit court’s judgm ent. ¶8. THE JUDGMENT OF THE CIRCUIT COURT OF JASPER COUNTY OF C O N V ICTION OF MOLESTATION AND SENTENCE OF FIFTEEN Y E ARS IN

4THE CUSTODY OF T HE M ISSISSIPPI D EPARTMENT OF CORREC T I O NS,

WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JASPER COUNTY. LEE, C.J., GRIF F I S , P.J., BARNES, ISHEE, CARLTON, F AIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

5