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DANNY CLEMONS v. STATE OF MISSISSIPPI

MAY 29, 1985

DANNY CLEMONS
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, HAWKINS and SULLIVAN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Danny Clemons was indicted, tried and convicted in the Circuit Court of Neshoba County on a charge of attempted rape, and was sentenced to serve a term of ten (10) years in the custody of the Mississippi Department of Corrections. Clemons has appealed to this Court and assigns four (4) errors in the trial below.

Appellant contends that the lower court erred in overruling his motion for (1) a directed verdict and (2) new trial on the ground that the verdict was against the overwhelming weight of the evidence. Both of these assignments will be discussed under the first contention.

 On October 19, 1983, at about 6:30 p.m., the prosecutrix, a white 43-year-old music teacher and organist for the Beacon Street Baptist Church, Philadelphia, Mississippi, went to the church and entered the sanctuary for the purpose of practicing wedding music. After approximately fifteen (15) minutes, she locked the organ and proceeded to leave the church through the same hallway she had used to enter the area. Just prior to exiting the hall, which was dark, a black male grabbed her around the neck from behind and repeated over and over," I'm going to get you this time. "She detected an unusual quality in the attacker's voice and that he pronounced his words distinctly. The prosecutrix testified

 that she struggled with her assailant about two minutes; that he used only his right arm in the struggle, holding her from behind; that he was grabbing at her blouse attempting to unbutton it; that she was unable to see his face or identify him; that he was wearing a short-sleeved shirt; that she bit him on the inside of his right arm, which was around her neck and he never used his left arm and hand in the assault; and that she finally managed to work her way to the door where her attacker pushed her out and ran. She described the manner in which she bit her attacker:

 Q. Now, what did you do after he grabbed you,

 A. I started wrestling with him. He was trying to undo my clothes, my blouse, and he was pulling and snatching and trying to unbutton my blouse, and he got me around the neck, and I was just wrestling with him. I never screamed, and I got - he got his arm close enough to my mouth, and I bit the punk out of him.

 Q. All right. Now, . . ., I want to ask you something now about this. In your best recollection, where did you bite him?

 A. Around in here (indicating).

 Q. Now, I want to ask you something about this. With regard to your teeth, what is your situation with regard to your teeth?

 A. I have one partial, one tooth. I have a partial in the upper.

 Q. Is your partial plate upper?

 A. Yes, in the front.

 Q. What does this do with regard to being able to bite?

 A. I can bite. I can bite an apple.

 Q. Can you bite as hard as if you had ...


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