BEFORE PATTERSON, DAN LEE AND ROBERTSON
JUSTICE DAN LEE FOR THE COURT:
This is an appeal from the Circuit Court of Scott County wherein the appellant, Willie Harper, was found guilty of the rape of a Scott County woman. *fn1 Harper was sentenced to serve a term of thirty-five years in the custody of the Mississippi Department of Corrections. From his conviction
and sentence he brings this appeal. Finding no merit to his arguments, we affirm.
The prosecutrix testified that on the evening of August 25, 1982, she went to bed at approximately 10:00 p.m. in her apartment on the ground floor of an apartment building in Forest, Mississippi. In the early morning hours she was awakened by something pressing on her neck. As she awoke she realized someone was standing over her next to the bed holding a knife to her throat. She then noticed that her five-year-old daughter had climbed in her bed and was sleeping next to her.
The figure with the knife told the prosecutrix to lie still. The prosecutrix testified that she recognized the voice" by just being around. "She identified the voice as that of Willie Harper. She stated that she had heard Harper before at soft ball games and around her apartment. She stated that she had known Harper" As long as I can remember. "She testified that she had no doubt that the voice of her assailant belonged to Willie Harper.
The prosecutrix further testified that Harper took off his clothes and got in bed with her. He then removed her underwear and had sex with her. She testified that all the while he kept the knife pressed tight against the right side of her neck and that she only had sex with him out of fear for her life and the safety of her daughter. She stated that when her assailant put his mouth against her neck she didn't feel any teeth. He told her that he had been to prison and would be going back in three days.
The entire episode lasted a half-hour to forty-five minutes. After Harper left, the prosecutrix lay on her bed for a few minutes to make sure that he was gone and then got up and searched her house. She noticed that there was grass and sand on the couch in her living room directly under an open window. She grabbed her daughter and drove to her parents' home. She noticed the time was 3:15 a.m. when she left her house.
Deborah Derrick, a former girlfriend of Harper's, testified that she lived in the same apartment building as the prosecutrix. Ms. Derrick testified that the morning of the rape, Willie Harper came to her door and hollered for her to open it. She testified that he knocked persistently and said if she didn't open the door he was going to shoot it down. Out of her fear of Harper, she yelled to a passerby to go get her father. Thereafter Harper left and Ms. Derrick last saw him near the prosecutrix's
apartment window. She stated that in between the time he first came and pounded on her apartment door and when he left, Harper was with a person in a blue van but that that person left before Harper.
Ms. Derrick further testified that some two to three weeks before the alleged rape she heard Harper remark that he would not mind" having some "of the prosecutrix. Ms. Derrick testified that Harper had no top teeth.
Dr. Bill Lewis, a hospital physician, testified that at 3:50 a.m. on August 26, 1982, the prosecutrix arrived at the hospital. She explained that she had been raped and was given a standard rape exam at 4:25 a.m. That exam revealed sperm in her vagina indicating that she had recently engaged in sexual intercourse. Dr. Lewis testified that the prosecutrix was upset and crying.
Hiram Richardson, an investigator with the Forest Police Department, verified that there was sand and grass on the prosecutrix's couch and living room rug which indicated the possibility that someone had climbed in the living room window. He further testified that Willie Harper had no top teeth.
Phil Gray, a/k/a Johnny Gray, testified for the defense. He stated that he lived" just down the road "from Willie Harper. On the night of August 25, 1982, he and Harper went to a nightclub in Forest, Mississippi called Soul City. They arrived there at approximately 7:30 to 8:00 o'clock p.m. At some point in the evening Harper left with Edward Smith, a/k/a Poonie, in a blue van. Gray testified that around 2:10 to 2:15 a.m. he again met up with Harper. Gray stated that he didn't have a watch but he knew what time it was because Soul City had closed at 2:00 o'clock. Gray had just left Soul City and he saw Harper coming from that direction. Gray was in the company of two women and he stopped to pick up Harper. According to Gray, they took the women home. The first woman, Lisa Townsend, lived in Johnsontown, approximately twenty minutes away. The second girl, Frieda Johnson, lived in the Brusher community, approximately fifteen minutes away. Gray testified that after taking the women home he took Harper home. By then it was about 3:00 o'clock in the morning.
Gray admitted that Harper is his second cousin and close friend. He also testified that Harper has no top teeth. Following Gray's testimony, the defense rested. The jury deliberated on the above detailed testimony and returned a verdict of guilty of rape. The jury did not establish
Harper's sentence at life imprisonment and therefore the circuit judge was left with the responsibility to sentence Harper to a term reasonably calculated to be less than life. Circuit Judge Marcus Gordon sentenced Harper to a term of thirty years. Actuarial tables establish Harper's expected life span as 37.3 years.
CONSTITUTIONALITY OF 97-3-65
Harper's first assignment of error is that the circuit court erred in refusing to sustain his demurrer to the indictment on the ground that the statute is unconstitutional because although it establishes a crime for the rape of a female, it fails to also make it a crime to rape a male; therefore, argues Harper, it is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.
Harper was indicted under 97-3-65(2) Miss. Code Ann. (Supp. 1984) which reads:
(2) Every person who shall forcibly ravish any female of the age of twelve (12) years or upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned for life in the state penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life ...