BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
Lester Goss and four others were convicted of the rape of N.M. Y., under Mississippi Code Annotated 97-3-65 (Supp. 1984). The jury failed to fix the penalty at life imprisonment and the trial court sentenced each defendant to five years imprisonment. This Court granted a motion to dismiss the appeal of the four other defendants on January 30, 1985. Goss maintains on appeal that the trial court erred in:
1. Excluding as irrelevant testimony alleging prior sexual conduct of the rape victim; and
2. In entering a verdict of not guilty because the jury's verdict was not supported by sufficient evidence.
There is no merit to either assignment of error, and the conviction and sentence of Lester Goss is affirmed.
The prosecutrix, N.M.Y., is a twenty-three year old resident of New Zion community in Winston County, Mississippi. On January 28, 1983, she went to Gladney's
Cafe with two female friends, around 9:00 p.m. After a short time, the prosecutrix, Linda Goss and Alvin Sherman, left Gladney's and drove in Sherman's automobile to a baseball diamond and parked the vehicle. Linda Goss got out of the car, leaving the prosecutrix and Alvin Sherman alone. According to the prosecutrix, she and Sherman waited in the car until Linda Goss returned with Chris Rash, and then they all went back to Gladney's. The prosecutrix denied that she had sexual relations with Sherman on that occasion and denied that they engaged in any amoratory activities. This incident occurred about one-half hour before the rape.
On returning to Gladney's, the prosecutrix saw Lester Goss, Anthony Hardin, Terry Lee Hunt, Dennis Perry, and Robert Lee Miller, in Gladney's. She had known all five of these men for several years.
The prosecutrix and Linda Ann Goss went to the restroom. They used the men's restroom because the ladies' restroom was out of order. As the prosecutrix and Linda Goss returned to the staircase leading up to the dance floor at Gladney's, the prosecutrix stopped to talk with Dennis Perry. Anthony Hardin grabbed her from behind, and, with the help of Terry Hunt and Robert Miller, carried her back into the men's bathroom. She was placed on her back on the floor and undressed and raped. Goss was the first of the group to rape her. Throughout the assault, the prosecutrix was fighting and yelling and resisting the five men. Eventually a crowd gathered, including the wife of the owner of Gladney's. The prosecutrix put her clothes back on and went upstairs to use the telephone. Lester Goss tried to stop her from calling the police, but she finally did call them and then went home. She was taken to Winston County Hospital, and given a pelvic examination and a rape test.
DID THE TRIAL COURT ERR IN EXCLUDING EVIDENCE OF THE PRIOR SEXUAL CONDUCT OF THE PROSECUTRIX?
Lester Goss moved the court to allow evidence of the sexual conduct of the prosecutrix at trial under the so-called rape shield statute, Mississippi Code Annotated 97-3-70 (Supp. 1984). The offer of proof consisted of affidavits by Charles Goss, the ...