Court overturns rape conviction, testimony of neighbor invalid

May 02, 1991|By Joel McCord | Joel McCord,Sun Staff Correspondent

ANNAPOLIS -- On a warm June night two years ago, a Galesville woman slowly roused from sleep to what she thought were the caresses of her boyfriend only to find it was her next-door neighbor who had wandered through her unlocked door.

The neighbor, Tony Wade Irvine, was convicted in Anne Arundel County Circuit Court of burglary, attempted rape and a fourth-degree sexual offense and sentenced to 15 years in prison.

The trial included testimony from another neighbor who said he had done the same thing to her 15 months earlier, and yesterday the Court of Special Appeals overturned the conviction on grounds that she should never have been allowed on the witness stand.

Although her testimony may have established that Mr. Irvine has "a propensity to engage in sexual assaults by trick, deceit, or deception," it was irrelevant to the specific charges against him, the court held.

According to court documents, the victim in the June 1989 assault had put her young son to bed and went to bed herself to read and await her boyfriend, who had borrowed her car. She left the front door unlocked. She was awakened when she felt a man caressing her. Thinking it was her boyfriend, she engaged in intercourse with the man. When she realized it wasn't her boyfriend, she struggled to get up, plugged in a light and realized it was her neighbor.

At the trial, the other neighbor related a similar story, adding that Mr. Irvine wandered out of her house "like he was drunk or something" when she discovered his identity. She also conceded that she never reported the incident.

Under Maryland's rules, evidence that a defendant committed a crime separate from the one with which he is charged cannot be admitted in court unless it establishes a motive or the identity of the person charged or shows a common scheme relating the crimes or the absence of a mistake on the prosecution's part.

The testimony failed on all counts, the court ruled.

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