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STATE v. BROWN

No. 62275-2.

127 Wn.2d 749 (1995)

903 P.2d 459

THE STATE OF WASHINGTON, Respondent, v. JAMES EDWARD BROWN, Petitioner.

The Supreme Court of Washington, En Banc.

October 12, 1995.

Attorney(s) appearing for the Case

Jessica A. Ryan, Joshua Weinstein, and Suzanne Lee Elliott of Washington Appellate Defender Association; and Nielsen & Acosta, by Eric J. Nielsen, for petitioner.

Norm Maleng, Prosecuting Attorney, and Lisa D. Johnson, Cynthia S. Gannett, and Pamela K. Mohr, Deputies, for respondent.

PEKELIS, J.

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...

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