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TONY TREVELLE BOYD v. STATE OF MISSISSIPPI

OCTOBER 18, 1989

TONY TREVELLE BOYD
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ANDERSON AND BLASS

ANDERSON, JUSTICE, FOR THE COURT:

Tony Trevelle Boyd was indicted by the Tate County Grand Jury in October of 1986 for rape on or about August 27, 1986. He was found guilty as charged, and on June 19, 1987, because the jury was unable to fix the penalty at life imprisonment, the trial judge sentenced Boyd to serve fifteen years in the Mississippi Department of Corrections with five years suspended. From this conviction and sentence Boyd appeals and asserts five assignments of error, only one of which has any merit and requires that we reverse and remand.

FACTS

 This case rests on the adage:" There are two sides to every story. "On the one hand, there is the testimony of the prosecutrix. But, on the other hand, there is a different story based on the same incident presented by the appellant. A story that not only seems to be the opposite to what the victim testified, but one which appears to be unrelated to anything to which the prosecutrix testified.

 What we do know is that on the morning of August 27, 1986, the victim, a twenty-eight year old resident of Lake Carmorant, Mississippi, took her two children and a neighbor's child to the beach at Arkabutla Lake in Tate County. During the ten o'clock hour the eighteen year old appellant came on the scene. What transpired subsequently is irreconcilable between the parties. According to the prosecutrix these are the facts:

 [On Direct examination]:

 Q Now, Cathy, you say that he came up to you and made some comment about the weather?

 A Yes, sir.

 Q What happened after that?

 A He walked down to the water. He put his feet in and he turned around and he walked back toward me . . . the next thing I knew I had a fist in my - I don't know which side, I think this side first - had a fist in my face anyway and he hit me a couple more times after that.

 Q Was anything said to him and him to you before he actually struck you?

 A No, sir, just the comment about the weather.

 Q Did he strike you with an open hand or a closed fist?

 A A closed fist.

 Q Did he hit you with hard force or light force?

 A Yeah, he rung my bells.

 Q Now, after that happened, what happened next?

 A . . . He proceeded to pull my bathing suit down and he went from there.

 Q Now, what kind of bathing suit did you have on?

 A One piece.

 Q A one piece bathing suit?

 A Very modest.

 Q Okay. And, how - could you describe how he pulled it down?

 A Left hand this side and he jerked it down to about my knees. He didn't remove it completely, just about down to my knees, ...


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