BEFORE DAN LEE, PRATHER AND SULLIVAN.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
On November 8, 1985, John Richard Pruitt was indicted by the grand jury of Harrison County for attempted rape and as a recividist. On January 27, 1986, he was tried before a jury, found guilty of attempted rape, found to be an habitual offender and sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections without parole. From this conviction and sentence Pruitt appeals.
On August 12, 1985, Robin Gatlin went to Terry's, a lounge in Gulfport, for a drink after work. While waiting on her neighbor to join her, she went to the ladies' room. As she stood at the counter in front of the mirror, she saw a man standing behind her. She asked him if he was waiting for someone, to which he replied," Yes, you ______, take off your clothes. "Robin then moved against the wall and the defendant put his hand on her throat and said," Take off your _______ clothes or I am going to beat your face in with this helmet [motorcycle helmet]. "Robin immediately started talking to him and he took his hand from her throat. During their non-stop conversation, the man announced that he was going to rape her and threatened her if she did not take her clothes off. Finally, Robin suggested that they walk out of the bathroom together and sit at the bar and sit down and talk, saying," If you want to talk to me, I'll listen. "At some point, according to Robin's testimony, the man told her she was free to leave, but Robin was afraid to walk past him. However, the man never touched her after he took his hands from her throat, never took her clothes off, never took his off, and never exposed himself. Shortly thereafter, another woman walked into the bathroom, after which the man walked Robin out of the bathroom with his hand on the back of her neck. They sat at the bar and ordered drinks and talked. The woman from the bathroom came by the bar and asked Robin if everything was all right. Robin told her," No, don't leave me. "The woman sat on the other side of the bar, and Robin told the man that the woman was her neighbor and he had better go or the woman would want to know what was going on. At that point, the man let her go. During their conversation at the bar, the man told Robin his name and showed her his driver's license. After Robin went to sit by the woman, the man left the bar. At trial, Robin identified the defendant as her assailant. She testified that the defendant was not intoxicated throughout the incident. After she left the lounge, Robin went home and called the police and filed a complaint.
Deborah Smith, the woman who walked into the bathroom, testified that when she got off work on the evening of August 12, 1985, she went to Terry's Lounge and went straight to the women's bathroom. When she pushed on the door it wouldn't open immediately, so she pushed again and when she walked in she saw a man sitting on the counter and Robin Gatlin standing next to him. She told them that she was just coming in to fix her makeup, at which point Robin grabbed her arm and said," Don't leave. Tell him you're my neighbor. "Ms. Smith agreed to stay, and continued fixing her makeup. At that point, the man and Robin turned to leave and Robin again grabbed the woman's arm and said," I'll be with you in a few minutes. "Ms. Smith said,
" Sure, I'll be out in a minute. "When Ms. Smith went by the bar, Robin grabbed her arm again and said," I'll join you for a drink in five or ten minutes. "At that point, Ms. Smith went to the doorman and told him there was some problem with this couple. She then sat down at the other end of the bar. In a few minutes, Robin came over to her and told her what was going on. Ms. Smith identified the defendant as the man in the bathroom. Ms. Smith did not think that Pruitt was intoxicated. She had never seen either of these two people before.
The doorman at Terry's Lounge, Steven Baugh, testified that Ms. Smith came to him and told him there was a problem with this couple. He sat near them at the bar and then went behind the bar and washed glasses and kept an eye on them. He could not hear their conversation. He did state, though, that while sitting at the bar, Pruitt had his right arm crossed over, holding Robin's arm.
At the close of the state's evidence, the defendant moved for a directed verdict. The trial judge admitted that it was a close question of abandonment, but denied the motion.
In his defense, Pruitt recalled the victim, Robin Gatlin, and Steven Baugh, both of whom basically reiterated their previous testimony. Pruitt did not testify.
At the close of the defendant's case, Pruitt renewed his motion for directed verdict, but again, the trial judge determined that it was a jury issue as to whether or not Pruitt committed an overt act and whether or not he abandoned his attempt.
Although Pruitt assigns four errors, we find it necessary to discuss only one:
The Court Committed Reversible Error in Not Granting a Directed Verdict at the Conclusion of the State's Case, Again Committed Reversible Error by Not Granting a Directed Verdict at the Conclusion of the Defendant's Case, and Finally, Committed Reversible Error by Not Granting a J.N.O.V. at the Conclusion of the Trial.
At the close of the state's evidence, Pruitt moved for a directed verdict. The trial judge denied the motion, stating, however, that the question was close as to the issue of abandonment. Pruitt renewed his motion at the close of the ...