STATE of North Carolina
v.
Robert Arthur PACE.
No. 8021SC803.
Court of Appeals of North Carolina.
March 3, 1981.*256 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.
David P. Mast, Jr., Winston-Salem, for defendant-appellant.
MORRIS, Chief Judge.
Defendant first argues that the trial court erred by denying his motions to dismiss the charges due to the insufficiency of the evidence of force. He argues that the evidence raised no more than a suspicion or conjecture as to the use of force against the victim. We disagree. Both second degree rape and second degree sexual offense must be committed "[b]y force and against the will of the other person." G.S. 14-27.3 and -27.5. The testimony of the prosecuting witness tended to show that the acts were indeed committed by force and against her will, and defendant's motions for dismissal were properly denied.
Defendant next argues that the trial court erred by allowing the testimony of Vickie Long Rorie and by instructing the jury on how to consider her testimony. 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, even though the other offense is of the same nature as the crime charged. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). The opinion in McClain enumerates eight well-recognized exceptions to the general rule. Certain of these exceptions allow admission of evidence relevant to the defendant's identity, intent and motive. Another exception allows evidence tending to show a common plan or scheme embracing the commission of a series of related crimes notwithstanding the fact that it also shows defendant's commission of another crime. Id. Stansbury states the law as follows:
Evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.
1 Stansbury's N.C. Evidence, § 91 (Brandis rev. 1973).
The trial court allowed Vickie Long Rorie to testify that defendant had raped her some two months before the present alleged crimes on grounds that her testimony tended to show the identity and modus operandi of the defendant. In its charge the trial court instructed the jury to consider Rorie's testimony solely for the purposes of establishing identity, modus operandi, intent, motive, and a plan or scheme of the defendant involving sex crimes. However, even before Rorie was called as a witness, defense counsel had informed the trial court that he would rely upon the defense of consent; and by the time the jury instructions were given, it was quite clear that consent was the fact in issue. Thus, none of the permissible purposes to which Rorie's testimony might have been put was relevant in this case. There was no issue as to defendant's identity, since his own testimony tended to show that he was with the prosecuting witness at the time involved and that acts of intercourse and fellatio did occur. There was no issue as to defendant's intent or motive. The issue, rather, was the state of mind of the prosecuting witness, whether the acts were committed by force and against her will. The mere fact that defendant wore a plaid jacket and used the term "Baby Girl" with both Rorie and the prosecuting witness does not show a modus operandi or bring Rorie's testimony within the "common plan or scheme" exception of McClain. Compare State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976); State v. McClain, 282 N.C. 257, 193 S.E.2d 108 (1972). These two similarities tended to show identity, but identity *257 was not at issue. It is true that our appellate courts have been quite liberal in construing the exceptions to the general rule of McClain when similar sex crimes are involved. State v. Greene, 294 N.C. 418, 423, 241 S.E.2d 662, 665 (1978); 1 Stansbury, supra, § 92. However, we cannot extend this liberality to the present situation. Evidence which has no logical tendency to prove a fact in issue is inadmissible, and its admission will constitute reversible error if it is of such a nature as to mislead the jury or prejudice the opponent. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22 (1966); 1 Stansbury, supra, § 77. Here, the testimony of Vickie Long Rorie was not relevant to the fact in issue. Her testimony tended to show the bad character of the defendant and his disposition to commit sex crimes. This the State may not do. See State v. Whitney, 26 N.C.App. 460, 216 S.E.2d 439 (1975). We cannot say that the admission of this testimony was harmless since the defense relied so heavily upon defendant's credibility.
Defendant's remaining assignments of error relate to evidentiary rulings and jury instructions which may not occur upon retrial, and we will therefore not address them.
New trial.
VAUGHN and BECTON, JJ., concur.