The appellant appeals the denial of his motion for new trial following his conviction of rape.
The victim testified that as she was walking back home from a trip to the post office on July 8,1982, she accepted a ride from a man driving a small, orange truck and that after they were moving, the man began touching her and offered to pay her $10 to go to bed with him. She refused and told him she would walk home, but he insisted that he would give her a ride. Telling her he had seen something alongside the road that he wanted to pick up, he then turned the truck around and began driving in the opposite direction. After going a short distance, he turned onto a dirt road and took her to an isolated, wooded area, where, she said, he raped and sodomized her. Before driving away, the assailant again offered her a ride home, but she refused and, after he had left, began walking. Upon reaching her home, an hour and-a-half later, she immediately told her mother and brother what had happened, and the brother reported the offense to the sheriffs office.
The appellant was taken into custody later that same day after deputies spotted his pickup truck and noticed that its appearance and contents matched a relatively detailed description provided by the victim. For example, the victim had reported that the truck carried the partial license tag number Q-864, and the appellant’s tag number was QZ-8764. The victim had also provided police with an accurate description of the appellant himself, and she later selected his photograph without hesitation from among seven presented to *884 her in a photographic lineup.
The occurrence of intercourse was confirmed by a medical examination showing the presence of sperm in the victim’s vagina. The examination also revealed the presence of bruises on the victim’s arm and a small tear in her vagina. A paper towel was recovered from the scene and shown to be of the same brand, style, and color as several paper towels discovered inside appellant’s truck. Laboratory analysis of this towel revealed the presence of seminal fluid, and it was determined that both the seminal fluid on the towel and the seminal fluid removed from the victim’s vagina had been deposited by a “secreter” of blood type “B” (a “secreter” being a person whose blood type can be determined from analysis of his other bodily fluids). Analysis of the appellant’s blood and saliva revealed him to be a “secreter” of blood type “B,” characteristics which occur together in only 9.6 percent of the population. The appellant presented alibi evidence in his defense, and also offered the testimony of numerous character witnesses.
Three alleged errors are enumerated on appeal: (1) The court’s failure to prevent the photographic lineup file from going out with the jury over the appellant’s objection that it contained markings made by the victim indicating that she had selected his photo; (2) the admission of alleged hearsay testimony by a deputy to the effect that the victim had personally confirmed the identification of the appellant’s truck after it was located; and (3) the court’s instruction to the jury that they could convict notwithstanding evidence of good character. Held:
1. It was established without dispute that the markings on the lineup file were placed there by the victim at the time she chose the appellant’s photo, and, consequently, they did not render the file inadmissible. Accord
Bennett v. State,
2. Assuming arguendo that the court erred in allowing the deputy to testify that the victim had personally identified the appellant’s truck after it was located, the error was harmless since the deputy’s testimony was merely cumulative of the victim’s own testimony on this point and consequently had no potential for prejudicing the appellant’s case.
3. The court gave the following charge on the weight to be given evidence of good character: “Good character, if shown, is a positive substantive fact and may in and of itself generate a reasonable doubt of the guilt of the defendant. It is your duty to take into account evidence of general good character, along with all the other facts and circumstances of the case in deciding this case. In doing so, as stated, if you have a reasonable doubt as to the defendant’s guilt, you should acquit him; however, if you believe the defendant to have been proved guilty beyond a reasonable doubt, it is your duty to convict, notwithstanding evidence as to his general good character.” (Emphasis supplied.)
The appellant contends that the last phrase of the charge was erroneous in that it negated the rule that proof of good character may in and of itself constitute a substantive defense, “overriding any amount of positive evidence pointing to the guilt of the defendant.”
Loomis v. State,
Judgment affirmed.