State v. Bailey

343 S.E.2d 434 (1986)

STATE of North Carolina v. Darrick Wayne BAILEY.

No. 851SC1350.

Court of Appeals of North Carolina.

May 20, 1986.

*435 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Floyd M. Lewis, for the State.

William T. Davis, Elizabeth City, for defendant-appellant.

WELLS, Judge.

In his first assignment of error defendant contends that the trial court erred in allowing the prosecuting attorney to cross-examine defendant about alleged prior sexual misconduct with a person other than the prosecuting witness. During defendant's cross-examination, the following events took place:

Q. Have you had other women come up to you in the past and ask you for sexual favors as Mrs. Lancaster did on this occasion? A. Not to my knowledge, sir. *436 Q. Have you ever had sexual relations with someone without their consent in the past? A. Not to my knowledge. Q. Have you ever attempted to have sexual relations without their consent? A. Not to my knowledge, sir. Q. Do you know a Miss Maudie Bradey, sir? A. Miss who? Q. Maudie Bradey. A. No, sir. Q. Isn't it true, sir, that you attempted to have sexual relations with Maudie Bradey against her will?

Although defendant objected at this point, the trial court allowed the prosecuting attorney to pursue this line of questioning by asking defendant if in July of 1984 he did not go to the residence of Maudie Bradey and attempt to have sexual relations with her against her will. We hold that the trial court erred in allowing this line of inquiry. Prior to the enactment of the North Carolina Evidence Code our Supreme Court had consistently held that a defendant who testifies in his own behalf may be cross-examined for the purpose of impeachment concerning prior criminal acts or specific acts of misconduct so long as the questions are asked in good faith. See State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); see also State v. Sparks, 307 N.C. 71, 296 S.E.2d 451 (1982). The Evidence Code, N.C.Gen.Stat. § 8C-1, became effective 1 July 1984 to actions and proceedings commenced after that date and applies to defendant's case. Rule 608(b) provides:

(b) Specific instances of conduct.Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness....

In State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), our Supreme Court decided that such inquiries must now be limited to conduct which bears upon or is relevant to the witness' propensity to truthfulness or untruthfulness. Other authorities agree with this position. See, e.g., Weinstein's comments on the identical Federal Rule, 3 Weinstein's Evidence, § 608[05] (1985). See also Note, EvidenceStuck in a Serbonian Bog: State v. Jean and the Future of Character Impeachment in North Carolina, 63 N.C.L.Rev. 535 (1985).

Under the authority of Morgan, supra, we also hold that this cross-examination was not allowable under Rule 404(b) of the Evidence Code (relating to other crimes, wrongs, etc.) because of a lack of relevancy. The cross-examination questions were clearly designed to rebut defendant's defense of consent and we cannot agree that evidence of other non-consensual sexual activity would be relevant on the question of Ms. Lancaster's consent. In the context of this case, where defendant's only defense was consent of the prosecuting witness, this cross-examination inquiry was clearly prejudicial and requires a new trial.

In another assignment of error, defendant contends that the trial court erred in allowing the State to introduce hearsay evidence in the form of a sales receipt for roofing shingles purchased by Cindy Lancaster's husband. Defendant testified that when Cindy Lancaster called him at 8:35 a.m. on 8 November 1984 and invited him to her home, she described her house by saying there would be shingles in her front yard. On rebuttal for the State, Ms. Lancaster's husband testified that he did not pick up his shingles until the late afternoon of 8 November. Mr. Lancaster identified a receipt for shingles purchased from Moore's building supply store in South Norfolk. The receipt was dated 8 November 1984 and was allowed into evidence over defendant's objection. "Hearsay" is a *437 statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. N.C.Gen. Stat. § 8C-1, Rule 801(c) of the Rules of Evidence. Mr. Lancaster's receipt was not offered as the statement of another but was offered to corroborate his own testimony as to the date he purchased his shingles. Thus, it was not hearsay. This assignment is overruled.

In another assignment, defendant contends that the trial court erred in not arresting judgment in defendant's conviction of the crime against nature because that conviction was based upon the same acts for which defendant was convicted of second degree sexual offense. We disagree. N.C.Gen.Stat. § 14-27.5 (1981) provides that a person is guilty of a second degree sexual offense if the person engages in a sexual act with another person by force and against the will of the other person. N.C.Gen.Stat. § 14-27.1(4) (1981) defines fellatio as a "sexual act." Fellatio may be accomplished by mere touching of the male sex organ to the lips or mouth of another. State v. Goodson, 313 N.C. 318, 327 S.E.2d 868 (1985); see also State v. Ludlum, 303 N.C. 666, 281 S.E.2d 159 (1981). On the other hand, the crime against nature proscribed by N.C.Gen.Stat. § 14-177 (1981) requires penetration of or by the sexual organ. See State v. Adams, 299 N.C. 699, 264 S.E.2d 46 (1980) and cases cited therein; see also State v. Fenner, 166 N.C. 247, 80 S.E. 970 (1914). Defendant here was convicted of two separate offenses based upon distinct acts of a sexual nature. This assignment is overruled.

Because of our decision to award defendant a new trial, we do not address defendant's assignments as to sufficiency of the evidence to convict him.

For the reasons stated, there must be a

New trial.

ARNOLD and BECTON, JJ., concur.