IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-KA-00437-COA
BREONNA GWIN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/12/2024
TRIAL JUDGE: HON. BURNICE WESLEY CURRY IV
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JULIANNE KAY BAILEY
DISTRICT ATTORNEY: EARL LINDSAY CARTER JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/23/2026
MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND WEDDLE, JJ.
BARNES, C.J., FOR THE COURT:
¶1. A Forrest County grand jury indicted Breonna Gwin for two counts of simple assault
of a law enforcement officer.1 These charges resulted from an incident where she struck two
police officers when Forrest County Child Protection Services (CPS) took her children into
CPS custody.
¶2. After a jury trial, Gwin was found guilty of both counts. The trial court sentenced
Gwin to serve consecutive five-year sentences in the custody of the Mississippi Department
1
See Miss. Code Ann. § 97-3-7(1)(b) (Rev. 2020) (providing that a person who “attempts to cause or purposely, knowingly or recklessly causes bodily injury” to a law enforcement officer “shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.”). of Corrections (MDOC) on each count, but the court suspended the sentence on the second
count and ordered that she be placed on five years of post-release supervision (PRS). After
the trial court denied Gwin’s posttrial motion, she appealed her convictions and sentences.
We find no error and affirm.
Factual and Procedural History
¶3. Gwin was a twenty-eight-year-old single mother of twin baby girls. Valerie Mackey,
a Forrest County CPS social service specialist who had been assisting Gwin, visited Gwin’s
home on October 23, 2023. Mackey asked Gwin to come to the local CPS office later that
day to fill out paperwork. Mackey then contacted Youth Court Judge Carol Jones Russell
to implement a safety plan that would allow Gwin’s minor children to stay in the home with
Gwin and her mother rather than enter CPS custody.
¶4. When Gwin failed to appear for the meeting, Mackey and her supervisor returned to
Gwin’s home. When they arrived, Mackey observed Gwin’s mother, Alicia Gwin, holding
a knife and Gwin coming downstairs, also holding a knife. Mackey immediately
“disregarded the safety plan” and contacted the youth court judge to request that CPS be
granted custody of Gwin’s children. She also called 911 for police assistance to ensure the
children’s safety.
¶5. Officers Colin Conner and Tyler Cone with the Hattiesburg Police Department arrived
at the scene, along with other officers. They observed Gwin and a CPS worker sitting
outside, each holding one of Gwin’s infants. An officer went inside the house to speak with
Alicia, who informed him that Gwin suffered from schizophrenia but had not been compliant
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with her medication. When she told them Gwin had hit her, they checked for signs of injury.
¶6. Officers went outside to speak with Gwin. The CPS worker took the infant from
Gwin’s arms while officers obtained Gwin’s side of the story. Gwin denied having any
mental health issues. She admitted to “pull[ing] a weapon” on Alicia but insisted that it was
the first time she had ever done so. Gwin acknowledged that she had hit Alicia in the head.
Although she was initially cooperative with the officer’s questioning, Gwin angrily exploded
when the CPS worker explained to her that the youth court judge had granted CPS custody
of her children. Gwin slammed her fists down on a parked car and started swinging her arms
with closed fists, striking Officer Conner in the mouth. During this outburst, Gwin kept
pleading for CPS not to take her babies.
¶7. Eventually, officers were able to handcuff Gwin and place her in a police car.
Moments later, however, Gwin smashed the glass out of the car’s rear window and leapt out,
with the handcuffs hanging loosely from her right wrist. When Officer Cone tried to
intercede, she hit him with the loose handcuffs, slicing his cheek and ear. Officers again
handcuffed Gwin, and she was taken into custody. Officer Cone was taken to the hospital
for treatment and received six stitches in his left ear.
¶8. On February 29, 2024, Gwin was charged with two counts of simple assault of a law
enforcement officer under Mississippi Code Annotated section 97-3-7(1)(b). A jury trial was
held on October 14-15, 2024. Mackey testified that after talking with the youth court judge,
she and other CPS workers went to Gwin’s residence to speak with her “about the safety plan
and get her to sign off on the paperwork.” When they arrived, however, Mackey saw Alicia
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holding a knife and then saw Gwin “exiting down the stairs holding a knife.” Mackey also
observed Gwin slap Alicia in the back of the head with the palm of her hand. After the
police arrived, CPS took the children and left.
¶9. During cross-examination, Mackey testified that until this incident, Gwin had been
compliant with CPS’s requirements. Mackey also confirmed her prior testimony that Alicia
had a knife. On redirect, over a hearsay objection by defense counsel, Mackey testified that
Alicia said Gwin was trying to stab her.
¶10. Officer Conner’s body-camera and dash-camera footage of the incident was admitted
into evidence and played for the jury. Officer Conner testified that Gwin hit him in the
mouth with her closed fist while she was swinging her arms. He did not sustain any bodily
injury from the hit, but Gwin did knock off his body camera. He confirmed that Gwin was
not under arrest at that time. Regarding the footage from his dash camera, Officer Conner
noted that Gwin “jump[ed] out of the back window” of a patrol car. He also observed that
“Gwin slices or goes to swing at Officer Tyler Cone, misses his face, and the open handcuff,
the serrated edges slice the back of Officer Cone’s left ear.” When asked on crossexamination why he did not immediately arrest Gwin for the misdemeanor, Officer Conner
replied that he had “compassion that this is a difficult situation for Ms. Gwin.”
¶11. Officer Tyler Cone also testified. Viewing his body-camera video, Officer Cone
acknowledged that the handcuff sliced his face, that he received six stitches in his ear, and
that he has permanent scarring on his ear and cheek from the injury. Officer Cone also noted
that when Gwin was swinging at Officer Conner, she was not under arrest.
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¶12. After both the State and the defense rested, the jury found Gwin guilty of both counts.
On December 12, 2024, the trial court sentenced Gwin to serve five years in the custody of
the MDOC on each count, with the sentences to run consecutively to each other. The trial
court also suspended the sentence on the second count and ordered she be placed on five
years of PRS after serving five years.2 Gwin filed a posttrial motion challenging the
sufficiency and weight of the evidence, which the trial court denied.
¶13. Gwin appeals, arguing that (1) hearsay evidence prejudiced her defense; (2) the trial
court improperly limited her cross-examination of a witness; and (3) the verdict was against
the overwhelming weight of the evidence.
Discussion
I. Whether hearsay evidence prejudiced Gwin’s defense.
¶14. During Mackey’s testimony, she was asked about her observations during the
altercation between Gwin and Alicia.
[MACKEY]: I saw her mother, Ms. Alicia Gwin, holding a knife
yelling out to me that –
[DEFENSE]: Objection to hearsay, Your Honor.
[STATE]: Your Honor, we would submit that this is an excited
utterance. This is an event that I believe with Ms.
Mackey’s anticipated testimony, she’s going to describe
an event wherein Ms. Alicia Gwin was under a great deal
of excitement and was describing what had happened and
what was happening.
2
Gwin was also ordered to pay all costs of court, a $500 fine, a $200 assessment to the Mississippi Crime Victims Compensation Program, and restitution in the amount of $500 to the Forrest County Public Defender’s Fund.
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THE COURT: All right. The Court is going to sustain the objection.
On cross-examination, defense counsel asked if it was Alicia who held the knife, and Mackey
stated, “She was coming out of the house with a knife, yes.”
¶15. On redirect, the State focused “on that knife and Ms. Alicia Gwin question” and asked
Mackey if she knew why Alicia had the knife. Defense counsel preemptively objected on
the basis of hearsay. The State responded:
[STATE]: Your Honor, in this particular instance, we are clarifying
a topic that was drawn out by defense on crossexamination and telling a complete story, which we
tender is not offered for the truth of the matter asserted,
and does not touch upon an ultimate issue in this case,
but is offered to show its effect on the listener, being Ms.
Mackey, and further illuminates why she felt it necessary
to call 911.
THE COURT: Response?
[DEFENSE]: Your Honor, it’s going to require her to speculate other
than just being able to testify as to what she saw. And I
just want to clarify that her testimony is what she saw
and that’s all.
[STATE]: Your Honor, we are not offering it to prove the truth of
the matter asserted, which is a prerequisite for hearsay.
We are offering it to show its effect on the listener, Ms.
Mackey.
THE COURT: I’m going to allow it.
[STATE]: Ms. Mackey, were you told why Ms. Alicia Gwin was
holding a knife?
[MACKEY]: She said that her daughter was trying to stab her – Ms.
Breonna [Gwin].
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Gwin argues that the trial court’s allowing this questioning and testimony was error, as “[t]he
introduction of [this] objectionable testimony” was prejudicial and “violated her right to a
fair trial under the Sixth and Fourteenth Amendments . . . and Article 3 § 26 of the
Mississippi Constitution.”
¶16. The Mississippi Supreme Court has held, “We review a trial court’s decision to admit
potential hearsay testimony for abuse of discretion.” McCollum v. State, 372 So. 3d 980, 985
(¶15) (Miss. 2023) (citing Eubanks v. State, 291 So. 3d 309, 322 (¶47) (Miss. 2020)).
Mississippi Rule of Evidence 801(c) defines hearsay as “a statement that: (1) the declarant
does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” M.R.E. 801(c)(1)-(2).
¶17. The State contends that Mackey’s statement was not hearsay, as it was “not offered
to prove the truth of the matter asserted.” We agree and find no error in the trial court’s
ruling. “Generally, an out-of-court statement offered to show its effect on the listener is
relevant non-hearsay, as it is not offered to prove the truth of the matter . . . asserted.”
Bennett v. State, 76 So. 3d 736, 746-47 (¶45) (Miss. Ct. App. 2011) (citing Knight v. State,
601 So. 2d 403, 406 (Miss. 1992)). Here, it was partly the result of Alicia’s statement that
Mackey determined that the children should be taken into CPS custody. That decision
precipitated Gwin’s assault of Officers Cone and Conner. The statement was not hearsay and
was properly admitted.
¶18. We therefore find no abuse of discretion in the court’s decision to allow this
testimony.
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II. Whether the trial court improperly limited the defense’s crossexamination of Officer Conner.
¶19. During Officer Conner’s cross-examination, defense counsel asked him if he thought
Gwin “did everything she could to resist being arrested.” The trial court sustained an
objection from the prosecutor on the basis that the question called for a legal conclusion.
Gwin argues that the court’s limiting the cross-examination of Officer Conner impacted her
ability “to present evidence which would foster inferences in support of defenses that she
asserted.”
¶20. In Mohamed v. State, 323 So. 3d 532 (Miss. Ct. App. 2021), we described this Court’s
standard of review regarding the right to cross-examination:
We recognize that “[t]he right to cross-examination is secured by the
confrontation clause of the Sixth Amendment to the Constitution of the United
States, made enforceable against the states by the Fourteenth Amendment.”
Farmer v. State, 301 So. 3d 731, 734 [(¶12)] (Miss. Ct. App. 2020). “While
defense counsel has wide latitude in cross-examination, ‘the trial court in its
discretion has the inherent power to limit cross-examination to relevant
matters.’” Id. (quoting Mixon v. State, 794 So. 2d 1007, 1013 (¶20) (Miss.
2001)); see also Mitchell v. State, 792 So. 2d 192, 217 (¶97) (Miss. 2001)
(“M.R.E. 611(b) allows wide-open cross-examination so long as the matter
probed is relevant.”). We review a circuit court’s limitation of crossexamination due to relevancy for an abuse of discretion. Id. (citing Zoerner
v. State, 725 So. 2d 811, 813 (¶7) (Miss. 1998)).
Id. at 546 (¶39). However, “a defendant’s right to cross-examination is not unlimited, and
the Confrontation Clause guarantees only an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish.” Williams v. State, 281 So. 3d 263, 268 (¶14) (Miss. Ct. App. 2019).
“Ultimately, determining whether the trial court abused its discretion in limiting
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cross-examination necessitates ‘careful reflection upon the nature and purpose of the
question propounded.’” Jackson v. State, 245 So. 3d 433, 440 (¶37) (Miss. 2018) (quoting
Black v. State, 506 So. 2d 264, 267 (Miss. 1987)).
¶21. The State asserts that the trial court did not improperly limit Gwin’s crossexamination, noting the following exchange after the trial court sustained the State’s
objection:
[DEFENSE]: [Gwin] refused to cooperate with you putting the
handcuffs on her?
[OFFICER CONNER]: Correct.
[DEFENSE]: She didn’t want to stand up?
[OFFICER CONNER]: Correct.
[DEFENSE]: Y’all carried her to the car?
[OFFICER CONNER]: Correct.
[DEFENSE]: She got out of the handcuffs?
[OFFICER CONNER]: Correct.
[DEFENSE]: And busted out a window to climb out to try to
get back to her kids?
[OFFICER CONNER]: Yes.
Based on this exchange, we agree with the State’s contention that Gwin’s defense attorney
“was still able to elicit all of the information she sought to introduce to the jury and to bolster
her theory of defense that she was merely guilty of the lesser-included charge of resisting
arrest.” Further, as defense counsel did not make a proffer of the proposed testimony that
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she wished to bring out, she has waived this issue. “When a trial court rules so as to prevent
certain testimony from being introduced, it is incumbent on the party to make a proffer of
what the witness would have testified to or the point is waived for appellate review.” Turner
v. State, 732 So. 2d 937, 951 (¶55) (Miss. 1999).
¶22. The State alternatively asserts that any error would be harmless. In Ambrose v. State,
254 So. 3d 77, 98, 105 (¶¶41, 69-71) (Miss. 2018), the Mississippi Supreme Court held that
the trial court’s ruling to prevent the defense from questioning a witness about his criminal
past was harmless error because the State had proved that the defendant “was guilty beyond
a reasonable doubt.” To determine whether an error is harmless, we evaluate several factors
including “the importance of the witness’[s] testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 105
(¶70) (quoting Clark v. State, 891 So. 2d 136, 142 (¶29) (Miss. 2004)).
¶23. Here, both officers testified that Gwin had struck each of them during her attempt to
prevent CPS from taking her children, and their body-camera footage corroborated this
testimony. And as already noted, after the trial court sustained the objection, defense counsel
was permitted to ask Officer Conner about Gwin’s lack of cooperation when being
restrained. Accordingly, we find that the trial court’s ruling was not reversible error.
III. Whether the verdict was contrary to the overwhelming weight of
the evidence.
¶24. In her posttrial motion, Gwin asserted that the jury’s verdict was “against the
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overwhelming weight of the evidence presented at trial.” She reasserts this claim on appeal,
arguing that with regard to Count I, “the greater weight of the evidence showed that” Officer
Conner accidentally walked into Gwin’s flailing arms and fists while she was “trying to
prevent the CPS workers from taking her children when she had never been shown any proof
that the CPS workers were authorized to do so.” Thus, she claims, “The weight of evidence
proves a case of accidental striking, disorderly conduct or resisting arrest rather than assault
or attempted assault on Conner.” As for Count II, she argues that “the overwhelming weight
of the proof showed that Gwin did not purposely, knowingly or recklessly cause injury to
[Officer] Cone.” Rather, Gwin asserts that the evidence established that she “was trying to
get to her children” and that “[Officer] Cone was injured when he tried to interfere.”
¶25. The supreme court has held that “[i]n reviewing a challenge to the weight of the
evidence, we must ‘view the evidence in the light most favorable to the verdict and disturb
the verdict only when it is so contrary to the overwhelming weight of the evidence that to
allow it to stand would sanction an unconscionable injustice.’” Williams v. State, 426 So. 3d
1087, 1090 (¶14) (Miss. 2026) (quoting Little v. State, 233 So. 3d 288, 289 (¶1) (Miss.
2017)). We do not “reweigh evidence, assess witness credibility, or resolve factual disputes.”
Id. (citing Little, 233 So. 3d at 289 (¶1)).
¶26. Regarding Count I, as stated in the jury instructions, the State was required to prove
beyond a reasonable doubt that “Gwin knowingly and unlawfully attempted to cause bodily
injury to Colin Conner . . . by striking him in the face with her hand.” The evidence and
testimony clearly demonstrated that when Officer Conner tried to calm Gwin down, she
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struck him with a closed fist and knocked off his body camera. Furthermore, Officer Conner
confirmed that Gwin was not being placed under arrest at that time.
¶27. Likewise, with regard to Count II, the jury viewed the body-camera footage from both
officers, as well as the dash-camera footage from Officer Conner’s patrol car. This video
footage showed Gwin smash out the window of the patrol car, leap out with the handcuffs
dangling, and swing her arm at Officer Cone, striking him with the loose handcuff. Photos
of the lacerations to Officer Cone’s face were admitted, and Officer Cone testified that he
was permanently scarred as a result of Gwin’s striking him with the handcuff.
¶28. Viewing the evidence in the light most favorable to the verdict, we cannot find that
the jury’s determination that Gwin was guilty of both counts was against the overwhelming
weight of the evidence. We affirm Gwin’s convictions and sentences.
¶29. AFFIRMED.
CARLTON, P.J., McDONALD, LAWRENCE, WEDDLE AND LASSITTER
ST. PÉ, JJ., CONCUR. WILSON, P.J., McCARTY AND EMFINGER, JJ., CONCUR
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION.
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