State v. Rankins , 63 N.C. App. 782 ( 1983 )

JOHNSON, Judge.

Defendant contends that the court erred in excluding testimony by Ms. Holley that she had sexual intercourse with a man other than defendant eight months before the birth of the child. We agree. As the Supreme Court aptly stated in 1899:

[T]he issue is the paternity of the child, and whatever tends to prove or disprove the affirmative of this issue is competent. It would not be competent to show that the prosecutrix, years before the birth of the child, had intercourse with someone else. Nor would it have been competent to prove that the prosecutrix at some other time had such intercourse, when it was apparent from the laws of nature that the child could not be the result of such intercourse. This would be incompetent because it did not tend to prove or disprove the affirmative of the issue. To admit such evidence would only be to allow the defendant to attack the character of the prosecutrix in a way not allowed by law.

But it seems to us that when the defendant offered to prove that another man had intercourse with the prosecutrix at the time when by the course of nature the child must have been begotten, this evidence bears directly upon the issue and is competent. (Emphasis added.)

State v. Warren, 124 N.C. 807, 809-810, 32 S.E. 552, 553 (1899); see also Levi v. Justice and Searcy v. Justice, 27 N.C. App. 511, 219 S.E. 2d 518 (1975). This excluded testimony was clearly relevant to the issue of paternity. It also contradicted Ms. Holley’s testimony that she had sexual intercourse only with defendant during the period of time in which the child could have been conceived. Although Ms. Holley subsequently testified on voir dire that she had intercourse with this particular man when she was eight months pregnant, it was for the jury to resolve any conflicts in, as well as the credibility of, her testimony. However, any other testimony regarding Ms. Holley’s sexual activity not within a period in which the child could have been conceived was properly excluded.

We also find merit in defendant’s contention that the court erred in allowing the child support enforcement officer to testify over objection that the outcome of this case would have no effect upon Ms. Holley’s AFDC payments. This testimony had no relevance to the issues being tried, i.e., whether defendant was the natural father of the child, whether Ms. Holley had received AFDC payments for the child’s support, and whether defendant had refused or neglected to repay the State for these payments.

We have carefully considered defendant’s remaining assignments of error and find that they have no merit.

Because the excluded testimony of Ms. Holley’s sexual activity with another man eight months before the child’s birth had a direct bearing upon the key issue of the case, paternity, the case must be remanded for a

New trial.

Judges Whichard and EAGLES concur.