State v. Johann ( 1978 )

SCHWAB, C. J.

Defendant was convicted after trial to the court of first degree rape (ORS 163.375) and two counts of first degree sodomy (ORS 163.405). His only assignment is that the trial court erred in admitting evidence of a "prior bad act.”

The complainant’s version was that defendant, a total stranger, knocked on her apartment door one evening, entered her apartment on the pretense of wanting a glass of water and then forced her to engage in varied sexual activity for the next couple of hours. The state called another woman who testified about an encounter with defendant on the street near the complainant’s apartment building a few minutes before the charged incidents began:

"Q Calling your attention back to June 28 of last year, do you recall where you were living?

"A In Northwest Portland.

"Q Do you recall on that date where you were in the early evening hours, still light?

"A Walking over to Bob Waters’ apartment.

"Q Do you recall approximately what time that was?

"A Sometime after 6:00 o’clock.

"Q And do you recall if anything unusual occurred as you walked towards his apartment?

"A Yes.

"Q Would you indicate what that is, please?

"A I got to about Hoyt, and a man came up to me and asked me if I had a match. And I said, 'No,’ and I started walking faster, and he continued to follow me and asked me if I knew where a phone booth was. Again, I said, 'No.’

sjs * * *

"[H]e grabbed me and put his arm around me, and I tried to pull away, but he was very strong and I couldn’t. And that was when he started talking very obscenely and foully and saying — first he asked me if I wanted to earn $20 by going to bed with him. And I said no. And then he just kept talking along in those lines and scared me very much. And I just kept walking. And then he grabbed me harder and started kissing me there on the street. He stopped and kept walking; all this time I kept trying to pull away. And finally, we got to the apartment building. And I buzzed Bob. He was home. And he opened — he buzzed open the door from his upstairs apartment, and I got in. But the defendant got in the building, also.[¹] * * *

"Q Had you ever seen him before?

"A No.

"Q Have you ever seen him again?

"A No.”

Defendant contends the above testimony impermissibly shows a "prior bad act” that was irrelevant to the issues at trial — since defendant conceded that sexual activity had occurred between him and the complainant — and that any relevance was outweighed by prejudice.

We are not certain that the testimony objected to revealed a prior bad act since it was so closely related to time and place of the crimes charged. But even assuming it was evidence of a prior bad act, for the reasons which follow we conclude it was nevertheless relevant to the issue of consent versus force.

Defendant did not testify. His version of the evening’s events was introduced in the form of a tape-recorded interview between defendant and a police officer. Defendant repeatedly stated he did not remember many of the events in question, but in the process of claiming lack of memory repeatedly implied that the sexual activity had been consensual. Parts of the recorded interview are:

"[Defendant:] I don’t remember meeting her. I don’t know where I met her at.

* * * *

"I first said 'hello’ to her; I don’t know where I first saw her.

* * * *

"As far as taking her home or going home with her or walking her home, I don’t remember at all anything about that.

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"[Officer:] Do you think you could have taken this girl sexually against her will?

"[Defendant:] No, she wouldn’t have invited me home.

"[Officer:] She invited you home?

"[Defendant:] I think so. I mean, I guess that’s how I got in there. I don’t remember.

Hi Hi * Hi

"[Defendant:] I don’t remember even going in the door with her.

«Hi Hi Hi Hi Hi

"[Officer:] Is it possible you could have raped her but don’t remember now?

"[Defendant:] No, it ain’t possible because I wouldn’t have done it. I wouldn’t have raped her.”

In arguing in summation that the sexual activity was consensual, defense counsel relied upon this recorded interview:

"I think the interview between Detective Rose and Mr. Johann points out — points to the Court the state of mind, Mr. Johann’s state of mind at the time. He was intoxicated. He had blanks in his recollection. And the Court makes the decision whether at the time of the interview Mr. Johann was candid with the detective. And I would submit to you that he was candid; that he told the detective everything he remembered; that he, in fact, could not remember where he met the woman, how he met the woman. And the very sketchy things which he remembered, he stated to the detectives. But the one thing he stated clearly was that he did not force her to do anything against her will.”

This reliance on defendant’s denial that any force was involved, coupled with hints, suggestions and innuendos that defendant and the complainant had met elsewhere the evening in question, made the testimony of the other woman relevant to show the circumstances of defendant’s entry into complainant’s apartment building. It tended to corroborate the complainant’s version that the events in question began when a total stranger knocked on her door. It tended to refute the implication that complainant had invited defendant in after he walked her home.

Arguably, the other woman could have been restricted to testifying that defendant, unaccompanied by the complainant, followed her into the apartment building after her friend had buzzed the outer door open. But then the question might logically arise as to why the witness would have remembered seeing a stranger for one brief moment under uneventful circumstances. The testimony about the traumatic events that fixed the occurrence in the witness’s memory was relevant to prevent the balance of her testimony from seeming "improbable or incredible.” State v. Remington, 15 Or App 170, 172, 515 P2d 189 (1973), rev den (1974).

Affirmed.

1 Other testimony established that the apartment building that the witness and defendant entered was the building in which the complainant lived.