State v. Brown

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James Brown (Brown) appeals from a Court of Appeals’ decision affirming his conviction for second degree rape on the grounds that the trial court erred in (1) admitting the victim’s 911 tape as an excited utterance despite her testimony that she had decided to fabricate a portion of her story prior to making the call, and (2) giving a lesser included offense instruction for second degree rape when there was no affirmative evidence supporting an inference that he committed only that crime. We reverse.

On December 15, 1990, T.G. called 911 to report that she had been raped. Officer Shirley Ann…