State v. Ange

ARNOLD, Judge. The sole question presented on appeal is whether the trial court erred in allowing the testimony of a witness who claimed to [526] have been raped by defendant on a prior occasion. We conclude that the evidence was properly admitted and find no error in defendant’s trial. The trial court admitted the witness’s testimony for the purpose of identifying the defendant as the perpetrator of the crime charged by the prosecutrix in the present case. Although the “general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense,” State v. McClain, 240 N.C. 171, 173, 81 S.E. 2d 364, 365 (1954), when “the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged.” State v. McClain, 240 N.C. at 175, 81 S.E. 2d at 367. The defendant argues that the question of identity was not at issue in his trial, and that therefore the identity exception does not apply. The defendant cites State v. Pace, 51 N.C. App. 79, 275 S.E. 2d 254 (1981), where evidence of a prior rape was held to be inadmissible because the identity of the defendant as the perpetrator was not in issue. Yet, in Pace, before the witness who would testify to the prior rape was called, the defense counsel informed the court that defendant would rely upon the defense of consent. Further, the defendant there took the stand, and his testimony tended to show that he was with the prosecuting witness at the time involved and that acts of intercourse and fellatio did occur. State v. Pace, 51 N.C. App. at 83, 275 S.E. 2d at 256. In the present case, the record contains no indication that the defense counsel removed the issue of identity. Nor did the defendant or any witness for the defendant take the stand and give evidence that defendant and the prosecutrix were together on the evening in question, and had sexual intercourse. The State thus had the burden of proving that the prosecutrix’s attacker and the defendant were one and the same. In the absence of an admission by the defendant or defense counsel, the identity of the perpetrator was an issue at trial. [527] The defendant argues that even if identity was at issue, the two incidents were so dissimilar that it cannot be reasonably inferred that the crime charged and the prior offense were committed by the same person. The trial court made detailed findings of the similarities between the two incidents. In both crimes the perpetrator asked the victim for a ride home in her car, had her stop on a deserted country road, requested that she engage in sex, and when she refused, then raped her. The most compelling similarity of the two crimes, however, was the behavior of the perpetrator during and after the crime. In both incidents, he threatened and screamed at the victim, then after the sexual act, became irrational and extremely emotional, expressing remorse, apologizing to the victims and saying he would turn himself in, expressing concern for his own mental and emotional state, and saying that he intended to get help. The behavior of the perpetrator, reflecting serious mental and emotional problems, combined with the other similarities as to where and how the crimes were carried out, provide a basis for a reasonable inference that the man who the witness claims attacked her was the same man the prosecutrix claims attacked her. The trial court did not err in admitting the witness’s testimony for the purpose of identifying the defendant as the man who raped the prosecutrix. No error. Judges Wells and Eagles concur.