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DECEMBER 04, 1985




This is an appeal from the Circuit Court of Harrison County wherein the appellant, John Henry Luvene, was indicted and tried for the crime of rape. Upon conviction the court sentenced the appellant to serve a term of twenty (20) years in the custody of the Mississippi Department of Corrections.

The evidence offered by the State was in direct conflict with the testimony of appellant.

 The crime occurred on a late Saturday evening in July, 1983 in Biloxi, Mississippi. The victim, who was employed at a local pizza restaurant, left work between 10:00 and 11:00 p.m. to walk a distance of one and one-half to two miles where she planned to meet her fiance' at a Pizza Inn to get a ride home, While walking on Pass Road in Biloxi, a black male driving an old orange sports car stopped and offered her a ride. After refusing the ride the young man continued to follow her in his car. She advised him again to drive on and he left. As she approached Highway 90 she again saw the same car pass through a nearby parking lot. She crossed Highway 90 and walked on the sea wall toward the Broadwater Marina.

 When she was a few feet from the marina she was grabbed

 from behind and fell. She screamed and the male, whom she identified as the appellant and as the man who had offered her a ride, placed his hand over her mouth. She was forced to lay in the sand with her arms stretched out. The appellant placed sand in her eyes and threatened to cut her throat if she did not stop screaming. He beat her with his "open handed fists" about the face and shoulders. She described him as being drunk and smelling of alcohol. She pleaded with him not to hurt her but to take her money. He informed her he did not want her money but wanted sex.

 The victim described the horrid details of her attack to the jury. After she was forced to undress the appellant forced her to not only succumb to his sexual assaults during which she was forced to assume various positions but also forced her to twice perform oral sex on him. Throughout the incident he threatened to kill her if she did not please him. During the ordeal she had dropped her purse and her sun visor with the name of the restaurant where she worked written on it.

 This eighteen-year-old victim was then told to put on her clothes and both she and the appellant walked across Highway 90 to a Spur service station. After the appellant got a coke she asked him for a dime to call a cab. While waiting for a cab he asked her for her phone number and she gave him her work number. He told her that he was sorry and she also wrote down the name of her minister. She testified that she obliged him by writing down her phone number as he had threatened her and she wanted to do whatever she could to get away. When the appellant questioned her as to how she would explain the bruises on her face, she informed him she would claim that she and her brother had gotten into a fight.

 After getting in the cab she informed the driver she had just been raped and asked him to take her to the Pizza Inn. When they arrived the cabbie went inside and got her fiance' who drove her to the hospital.

 The police officers investigating the scene found her visor and some articles which had fallen from her purse. After securing a description of the victim's attacker as well as his clothing, the appellant was arrested the following day.

 The testimony of the appellant was in direct conflict with that offered by the state. He does not deny engaging in intercourse with the victim but alleged it was with her consent.

 He testified that on the day in question he had been to a

 ballgame and had visited with a friend who lived off Pass Road. He claimed he had a little bit of beer to drink. After leaving his friends between the hours of 9:00 and 10:00 he drove to the beach near the Broadwater Marina. He sat there approximately 15 to 30 minutes when he was startled by a young girl who was walking in the sand toward him. Appellant was 28 years of age at the time. He asked the girl if she had a minute and she said "sure." They entered into conversation and walked toward the beach. He described her as depressed and thought she was upset with her brother. He also later testified that he understood that she had a fight with her fiance'. The appellant became tense when the young girl unexpectedly placed her arm on his shoulder.

 According to the appellant the victim initiated the conversation about having sex, using terms he did not understand and she also mentioned having oral sex. He consented to have sex with her after which she dressed and they proceeded together across Highway 90 to a local service station. She asked him to call a cab for her and he did. He asked for her phone number which she wrote down. He had no idea why she wrote down her minister's name as well. He noticed that she had a ...

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