“ ‘The mere fact that an abortion took place is not so inflammatory as to render it inadmissible.’ ”
How later courts described this case
- “ ‘The mere fact that an abortion took place is not so inflammatory as to render it inadmissible.’ ”
- “Testimony of a self-serving declaration made by a defendant following an alleged crime is incompetent as substantive evidence.” (citation omitted)
Written by the judges who cited it.
The opinion
Justice Frye
concurring in the result.
I agree with the Court’s ultimate decision finding no error in defendant’s trial and sentencing. I write only to express my concern with the Court’s treatment of defendant’s contention that it was plain error for the trial judge to permit the victim to testify, even in the absence of any objection, that she was not having sexual intercourse with anyone else during the time of the rape in question. The Court holds that admission of this evidence was not error. I am not convinced.
I believe that Rule 412 of the North Carolina Rules of Evidence, properly construed, makes this type of evidence irrelevant to any issue in this case and its admission improper if properly objected to. Under the circumstances of this case, however, the admission of this evidence was clearly not error of the magnitude required for application of the plain error rule so as to award defendant a new trial. See State v. Walker, 316 N.C. 33 , 340 S.E. 2d 80 (1986); State v. Black, 308 N.C. 736 , 303 S.E. 2d 804 (1983).
*192 Rule 412 of the North Carolina Rules of Evidence provides that with the exception of sexual behavior between the complainant and the defendant and three other exceptions not relevant to this case, “the sexual behavior of the complainant is irrelevant to any issue in the prosecution . . . N.C.G.S. § 8C-1, Rule 412(b) (1986). Sexual behavior is defined as “sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.” N.C.G.S. § 8C-1, Rule 412(a) (1986). While it may be argued that the testimony in question relates to a lack of sexual activity rather than sexual activity, I believe that at least one purpose of the rule is to remove from the prosecution of sex offense cases the question of the prosecutrix’s sexual activity or lack thereof with persons other than the defendant. Once the complaining witness is permitted to testify, as here, that she was neither dating anyone on a regular basis nor having sexual intercourse with anyone during that time, the door is open for defendant to make an issue of her sexual behavior. This, in my opinion, is what Rule 412 attempts to prevent.
Chief Justice ExUM and Justice MITCHELL join in this concurring opinion.