dissenting.
In overruling defendant’s objection the court commented:
«* * * This is the very night of the occurrence. It places him at the scene. It does that if nothing else. * * * The relevancy is it puts this man at the scene of the claimed rape, doesn’t it?”
The record is clear, however, that the court did not limit its consideration of the testimony to the issue of defendant’s presence at the scene.1 Immediately before finding the defendant guilty the court said:
*369"* * * It is conceivable, I would think — and this is what concerns you — but I think it is conceivable that it could have been consensual. There are parts of the story of the victim which are difficult to understand, and we have gone over them and hashed them out * * *. They can be explained, but they are in my mind difficult in some ways to explain consistent with the person who has been placed by means of a threat, express or implied, in fear of immediate or future death or serious physical injury to herself.
"On the other hand, there are features of the case that certainly point in the other direction * * * which are impressive to me. The fact of his approach to the other lady * * * for sexual purposes. And certainly she was a believable witness. * * *”2
The challenged testimony was not necessary to prove defendant’s presence at the scene. He was arrested in complainant’s bed, as was shown in the prosecution’s case. He admitted that he had sexual relations with complainant at the time and place alleged, and that was made known to the court at the beginning of the trial. Although the encounter with the other woman was closely related in time to the alleged crime, the omission of her testimony would not *370have made the other evidence to be offered in the case seem "improbable or incredible.” State v. Remington, 15 Or App 170, 172, 515 P2d 189 (1973), rev den (1974). Neither was the testimony necessary for a full understanding of the facts. Compare State v. Hookings, 29 Or App 139, 562 P2d 587, rev den (1977), cert den 434 US 1049 (1978). That the evidence was relevant to any other issue is not claimed, and it was obviously inadmissible to show a criminal disposition or propensity. State v. Pitts, 29 Or App 59, 562 P2d 562, 30 Or App 1, 566 P2d 182, rev den (1977).
Based upon the court’s comments quoted above, I agree with defendant’s assertion that the prejudicial effect of the testimony was substantial. Taking into account the absence of any need for the evidence in the light of the actual issues, see State v. Lehmann, 6 Or App 600, 488 P2d 1383 (1971), any remote probative value the testimony might have had was outweighed by its prejudicial effect, and it should have been excluded. State v. Manrique, 271 Or 201, 531 P2d 239 (1975).
The majority’s reliance on the tape recorded interview in the police station is difficult to understand. In the first place, its admissibility and probative force is not in issue. In the second place, I believe that anyone who listens to the tape could only conclude that all it really shows is that the defendant was, as the old expression goes, "drunk as a billy goat,” so drunk that his ability to have done the bizarre acts the purported victim testified to is extremely doubtful. In the third place, if the questions defendant was responding to were also quoted, it would be clear that the "hints, suggestions and innuendos” were made by the investigating officer, not by the defendant.
I would reverse.
Nor did the prosecution. The following is an excerpt from the district attorney’s closing argument:
"And again, this is consistent with this man with what he said to [the complainant], with what he had done to [the other woman].
"I think that what he did to [the other woman] was important. It shows what his attitude was to women. He insulted her. He scared the heck out of her. I submit to the Court he did the same thing with [the complainant].
"[DEFENSE COUNSEL]: Your Honor, I would object to that type of argument. I had made an earlier objection that if the District *369Attorney is using that as a prior bad act to say that he did it once or that he did it before, hell do it again, and that is the argument he is making, I have an objection to that.
"THE COURT: The objection is overruled.
"[PROSECUTOR]: That is so important because it is so close in time, what he’s doing, and also the fact that he then goes to the apartments throughout the building. And I submit to the Court that he was doing the same thing or looking for the same thing in those apartments as he was looking for with [the other woman].”
At the sentencing the court also commented:
"It is really a matter that when you have agonized over a decision like this case had and you waive a jury, and I have to decide this case, and I said at the time the conduct of the woman involved, if I were a woman and I were being forcibly raped, I don’t know that I would act like that. But I am not a woman. We all forget that without doubt this man accosted another woman on the street, left there and went to this woman’s apartment house where he didn’t know her from Adam’s off ox and forced his way into the apartment house or into her apartment. Now, the Court felt that was rather strong evidence. * * *.