Nix v. State

653 P.2d 1093, 1982 Alas. App. LEXIS 347
Court of Appeals of Alaska·Decided November 5, 1982·No. 5481·Published·Cited by 28 cases

Opinions

OPINION

SINGLETON, Judge.

Barry Nix was convicted of the unlawful entry into the homes of three Anchorage women (respectively J.B., L.O.M., and C.P.) with the intent to rape them, former AS 11.20.080; the resulting rape of two of the women, J.B. and C.P., former AS 11.15.-120(a)(1); and the assault of the third, L.O.M., former AS 11.15.230. All of the cases were tried together and he was acquitted of the burglary and rape of T.C. He received sentences which totalled fifty years’ imprisonment, when taking into account those to be served consecutively, and including sentences which we approved in Nix v. State, 624 P.2d 825 (Alaska App.1981). He appeals, challenging both his [1095] convictions and the length of the sentences imposed.

His primary contention on appeal1 is that the trial court erred in denying his motion to sever the various counts, so that each victim’s case could be separately heard. He also contends that separate grand juries should have heard the facts regarding each victim prior to returning an indictment. In connection with this argument he claims that the trial court also erred in permitting the jury to hear evidence regarding an alleged burglary of the residence of S.C. and an assault on S.C. for which Nix was separately tried and convicted. See Nix v. State, 624 P.2d 823 (Alaska App.1981).

The Alaska Supreme Court has addressed contentions similar to Nix’s in two cases which we find controlling: Stevens v. State, 582 P.2d 621 (Alaska 1978) and Coleman v. State, 621 P.2d 869, 874 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981).

In Stevens, two rape charges involving separate victims were joined together for purposes of trial. The supreme court noted that two or more offenses may be joined in the same indictment under Criminal Rule 8(a)2 if either (a) they are of the same or similar character or (b) they are based on the same transaction. Stevens involved the joinder of similar offenses and the court indicated concern that such a joinder could prejudice a defendant: a jury might be more willing to convict a defendant despite reasonable doubts regarding one of the offenses if they were convinced beyond reasonable doubt that he had committed other like offenses. Consequently, the court suggested that where joinder was predicated on the basis of “same or similar character” offenses only, the trial court should on motion grant a severance. 582 P.2d at 629.3 [1096] The court concluded that Stevens was not entitled to a severance of the two rape charges because the circumstances surrounding the two events were sufficiently similar that evidence regarding each was relevant and admissible in the other case to show the common identity of the assailant. In the context of that case it is therefore clear that this right to an automatic severance depends upon a further determination by the court that evidence of each separate incident would not be admissible under Alaska Rules of Evidence 403 and 404 in the trial of the others.

Consequently, we must determine whether evidence regarding the attack on each of Nix’s alleged victims would have been admissible in the trial of each of the other charges if the charges had been separately tried. If there was common admissibility, then the trial court did not err in denying the motion for severance. Conversely, if evidence of one or more of the offenses could not have been admitted in a trial of the other offenses, then Nix suffered error. A reversal is mandatory if the error was prejudicial.

The rules governing the admissibility of evidence of other incidences of rape to show the common identity of the assailant are thoroughly canvassed in Coleman v. State, 621 P.2d 869 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981).

[1097] Having carefully reviewed the record in light of the Coleman and Stevens decisions, we have concluded that there was sufficient similarity between each of the five incidents introduction of evidence regarding each case in the trial of each of the others was not prejudicial error. Consequently, we affirm the decision of the trial court. The following facts establish the context in which this issue must be decided.

J.B.

J.B., a young Caucasian woman, was attacked in her street-level apartment located on the west side of Anchorage at approximately 9:15 p.m. on January 11, 1979. She testified that her assailant knocked at her door. Expecting a friend, she opened the door and the assailant forced his way in. She described him as a white male with a slim build, approximately 5'8" to 6' tall, wearing a light beige nylon stocking over his face as a mask. He was also wearing dark heavy gloves and a nylon coat. He subjected her to vaginal intercourse from front and back and forced her to perform fellatio. He repeatedly threatened to “blow [her] away” or “slice [her] up” if she looked at him, so she kept her eyes shut. When he left he made her lie on her stomach on her bed with her head in a pillow. The FBI lab matched hair samples taken from Nix to hair found on J.B.’s pillow. Chemical analysis of seminal fluid on J.B.’s panties indicated that her assailant was a man with blood group type “B,” the blood type of approximately ten percent of the population. Barry Nix has blood group type “B.” Nix was convicted of the burglary and rape of J.B.

T.C.

T.C., a young Caucasian woman, was attacked in her basement apartment located on the east side of Anchorage near the intersection of Bragaw and Debarr Roads, a few miles from J.B.’s residence, on January 17, 1979 at approximately 8:30 p.m. She described her assailant as white, wearing a dark stocking mask, white cotton gloves stained with brown paint, and a dark jacket. She described him as approximately 6' tall with a slight build, weighing about 145 pounds. He told her to keep her eyes closed or he would “blow [her] head off” or “blow [her] away.” He subjected her to vaginal intercourse and cunnilingus and forced her to perform fellatio. T.C. was able to identify Nix’s voice. Sperm swabbed from her vagina during the medical examination following her attack showed that her assailant had blood group type “B.” Nix was acquitted of the rape and burglary of T.C.

L.O.M.

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Nix v. State, 653 P.2d 1093, 1982 Alas. App. LEXIS 347 (Ala. Ct. App. 1982).

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