In his first assignment of error defendant contends that the trial court erred in allowing the prosecuting attorney to cross-examine defendant about alleged prior sexual misconduct with a person other than the prosecuting witness. During defendant’s cross-examination, the following events took place:
Q. Have you had other women come up to you in the past and ask you for sexual favors as Mrs. Lancaster did on this occasion?
A. Not to my knowledge, sir.
Q. Have you ever had sexual relations with someone without their consent in the pаst?
A. Not to my knowledge.
Q. Have you ever attempted to have sexual relations without their consent?
A. Not to my knowledge, sir.
Q. Do you know a Miss Maudie Bradey, sir?
A. Miss who?
Q. Maudie Bradey.
A. No, sir.
Q. Isn’t it true, sir, that you attemрted to have sexual relations with Maudie Bradey against her will?
Although defendant objected at this point, the trial court allowed the prosecuting attorney to pursue this line of questioning by asking defendant if in July of 1984 he did nоt go to the residence of Maudie Bradey and attempt to have sexual relations with her against hеr will. We hold that the trial court erred in allowing this line of inquiry. Prior to the enactment of the North Carolina Evidence Code our Supreme Court had consistently held that a defendant who testifies in his own behalf may be cross-examined for the purpose of impeachment concerning prior criminal acts or spеcific acts of misconduct so long as the questions are asked in good faith.
See State v. Small,
(b) Specific instances of conduсt. — Specific instances of the conduct of a witness, for the purpose of attacking or supрorting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness ....
In
State v. Morgan,
Under the authority of Morgan, supra, we also hold that this cross-examination was not allowable under Rule 404(b) of the Evidence Code (relating to other crimes, wrongs, etc.) because of a lack of relevancy. The cross-examination questions were clearly designed to rebut defendant’s defense of consent and we cannot agreе that evidence of other non-consensual sexual activity would be relevant on the question of Ms. Lаncaster’s consent. In the context of this case, where defendant’s only defense was consent оf the prosecuting witness, this cross-examination inquiry was clearly prejudicial and requires a new trial.
In anоther assignment of error, defendant contends that the trial court erred in allowing the State to introduce hearsay evidence in the form of a sales receipt for roofing shingles purchased by Cindy Lancaster’s husband. Defendant testified that when Cindy Lancaster called him at 8:35 a.m. on 8 November 1984 and invited him to her home, she described her house by saying there would be shingles in her front yard. On rebuttal for the State, Ms. Lancaster’s husband testified that he did not pick up his shingles until the late afternoon of 8 November. Mr. Lancaster *682 identified a reсeipt for shingles purchased from Moore’s building supply store in South Norfolk. The receipt was dated 8 November 1984 and was allowed into evidence over defendant’s objection. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. N.C. Gen. Stat. § 8C-1, Rule 801(c) of the Rules of Evidence. Mr. Lancaster’s reсeipt was not offered as the statement of another but was offered to corroborate his own testimony as to the date he purchased his shingles. Thus, it was not hearsay. This assignment is overruled.
In another assignmеnt, defendant contends that the trial court erred in not arresting judgment in defendant’s conviction of the crimе against nature because that conviction was based upon the same acts for which defendаnt was convicted of second degree sexual offense. We disagree. N.C. Gen. Stat. § 14-27.5 (1981) provides that а person is guilty of a second degree sexual offense if the person engages in a sexual act with another person by force and against the will of the other person. N.C. Gen. Stat. § 14-27.1(4) (1981) defines fellatio as a “sexual act.” Fellatio may be accomplished by mere touching of the male sex organ to the lips or mouth of another.
State v. Goodson,
Because of our decision to award defendant a new trial, we do not address defendant’s assignments as to sufficiency of the evidence to convict him.
For the reasons stated, there must be a
New trial.