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ROOSEVELT DEXTER ARMSTEAD v. STATE OF MISSISSIPPI

FEBRUARY 25, 1987

ROOSEVELT DEXTER ARMSTEAD
v.
STATE OF MISSISSIPPI



BEFORE WALKER, C.J., PRATHER AND SULLIVAN, JJ.

PRATHER, J., FOR THE COURT:

Roosevelt Dexter Armstead was convicted in the Circuit Court of Washington County of burglary of a dwelling and attempted rape. From those convictions he appeals. This Court affirms in part and reverses in part.

I.

 In March of 1985, sixteen-year-old Tammy Rhodes (prosecutrix) lived at 811 West Gloster Street in Greenville, Mississippi with her aunt, Lillie Jefferson, and Lillie's four children. According to Tammy, Roosevelt Armstead, an acquaintance of Lillie Jefferson, paid a call to Lillie's house at approximately 8:00 p. m. on March 26, 1985. Once he found Lillie was not home, Armstead left a message and departed.

 Later that evening, after she had locked the doors to the house and had gone to bed, Tammy was awakened by a" door knob rattling. "Tammy walked from her bedroom into the den where she found Armstead standing inside the door, holding a fork.

 According to Tammy, she turned to run but Armstead grabbed her by the neck and pushed her into a bedroom where the children were sleeping. Armstead then pushed her into her aunt's bedroom and onto her aunt's bed. Having Tammy pinned on the bed, Armstead rubbed his hands over Tammy's body.

 A struggle ensued which took Armstead and Tammy from the bed to the floor and back several times. According to Tammy,

 Armstead tried to stab her with a fork and with a butcher knife that one of Tammy's cousins brought into the room. Also, Armstead slipped his hand into Tammy's panties and threatened to kill her and to rape her if she did not stop screaming.

 After approximately thirty minutes of struggling, Armstead left the house with the butcher knife in hand. The next day Armstead was arrested and charged with attempted rape and burglary of a dwelling.

 At his trial, Armstead testified that Tammy had voluntarily let him in the house that evening to watch television. According to Armstead, he kissed Tammy on the neck and Tammy offered no resistance. Encouraged by Tammy's reaction, Armstead attempted to" lay her back "on the couch, but she became uncooperative. According to Armstead, a struggle ensued during which Tammy tried to stab him with a fork. Eventually Armstead wrestled the fork away from Tammy and left the house.

 Armstead was found guilty on both charges and was sentenced to serve consecutive prison terms of ten years for attempted rape and fifteen years for burglary.

 II.

 Was the indictment for attempted rape fatally defective?

 The offense of attempted rape is defined under our law by a combined reading of Miss. Code Ann. 97-3-65 (2) (Supp. 1986) and Miss. Code Ann. 97-1-7 (1972). Harden v. State, 465 So. 2d 321, 323 (Miss. 1985). A person is guilty of attempted rape if he:

 [S]hall design and endeavor to commit [a rape], and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same . . . .

 Id.

 Prior to the trial of the present case, appellant filed a demurrer to the attempted rape indictment, but the trial court overruled. In both his demurrer and his post-trial motions, appellant argued the attempted rape indictment was fatally defective because it failed to allege that appellant possessed the requisite intent to commit the offense.

 The indictment in question alleged that appellant" unlawfully,

 wilfully, feloniously, and forcibly did attempt to rape and ravish Tammy Rhodes . . . against the will and without the consent of Tammy Rhodes . . . . "

 All questions regarding the sufficiency of indictments are determinable by reference to Rule 2.05, Uniform Criminal Rules of Circuit Court Practice. Harden, 465 So. 2d at 324. The rule articulates seven elements to be included in any indictment, none of which are at issue in this case, and directs:

 The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary ...


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