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To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed. Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.
The prosecutrix, Ms. Nancy B., testified that about 4 p.m. on July 8, 1971, she left her apartment to walk to a nearby grocery store. As she passed a liquor store, she heard catcalls from some men, and defendant one Franklin Mayberry, whom she had never seen before, grabbed her arm. She dug her fingernails into his wrist, and he released her. After she turned to leave, he kicked her, threw a bottle which struck her, and shouted obscenities at her. But she remonstrated and continued on her way. After she entered the grocery store, defendant one suddenly appeared beside her and said something to the effect that she was going to go outside with him and if she did not cooperate, she would pay for it. The prosecutrix further testified what she suffered from defendant one and his brother, defendant two Booker T. Mayberry that day. Thereafter, an information was filed charging defendants with various offenses against the prosecutrix. Defendant one was charged with assault with intent to commit rape. Defendant two was charged with kidnaping, rape by means of force and threat, assault by means of force likely to produce great bodily injury, and oral copulation. Following a joint trial, the jury found defendants guilty as charged on all counts, except that the jury found defendant Franklin guilty of assault, a lesser included offense in the alleged violation of section 245. He received a jail term for the assault, and both defendants received prison terms for the other offenses. Defendants appealed their convictions, contending that the prosecutrix' testimony was inherently improbable and that inadequate instructions, an improper charge, and certain other matters also require reversal of the judgments.
Was the prosecutrix' testimony inherently improbable?
The court determined that the prosecutrix' testimony was not inherently improbable. The court ruled that, as to defendant one's claims, the trial court's failure to instruct on diminished capacity was not error because evidence of such was minimal. Further, the failure to give a cautionary instruction as to the alleged assault with intent to commit rape was not prejudicial because a similar instruction was given in connection with the rape charge against defendant two. However, as to defendant two's claims, the court held that the trial court erroneously refused to give mistake of fact instructions to the jury to acquit him of rape and kidnapping if they had a reasonable doubt as to whether defendant reasonably believed that the prosecutrix consented to her movement from the grocery store to his apartment, and to have sexual intercourse with him, was prejudicial. Accordingly, the court reversed defendant two’s conviction for rape and kidnapping but affirmed the convictions in all other respects.