Nix v. State, 5481

• Decision Date: 05 November 1982
• Docket Number: No. 5481,5481
• Citation: 653 P.2d 1093
• Parties: Barry NIX, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1093

653 P.2d 1093

Barry NIX, Appellant, v. STATE of Alaska, Appellee.

No. 5481.

Court of Appeals of Alaska.

Nov. 5, 1982.

Michael J. Lindeman and Joseph A. Kalamarides, Settles, Kalamarides & Associates, P.C., Anchorage, for appellant.

Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

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 convictions and the length of the sentences imposed.

His primary contention on appeal ¹ 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 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).

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.

L.O.M., a young Caucasian woman, was attacked in her street-level apartment located on the west side of Anchorage, approximately four blocks from J.B.'s apartment, at approximately 10:40 p.m. on January 27, 1979. Her assailant was neither masked nor gloved. She described him as white, between twenty-two and twenty-six years old, approximately 5'8"' to 5'11"' tall, wearing a blue down parka. The assailant came to her door, and when she opened it, forced his way in and beat her about the body with his fists. When he heard one of the children who was sleeping in the next room cry out, he panicked and fled. She positively identified Nix as her assailant at a lineup and later at trial. Nix was convicted of the burglary and assault on L.O.M.

C.P.

C.P., a young Caucasian woman, was attacked in her street-level apartment located on the west side of Anchorage, approximately thirteen blocks from J.B.'s apartment and twelve blocks from L.O.M.'s apartment, at approximately 11:30 p.m. on January 30, 1979. She told the police that her assailant was thin, weighing 135 to 150 pounds, between 5'8"' and 6' tall, wearing a beige-brown ski mask and cowskin-like gloves. She was not able to tell his race. He rang her bell and when she answered forced his way in, spun her around, blindfolded her, propelled her into the bedroom and there tied her hands behind her back. He told her if she screamed she would "get it" or be "blown away." He attempted vaginal intercourse but when she told him she was menstruating, forced her to perform fellatio. He then forced her to lie face down on her bed with a pillow over her head while he escaped.

Shortly before the attack, C.P. had come home from the hospital where she worked. She noticed a quite dirty white or off-white late sixties model Dodge or Plymouth sedan, which she believed was following her. When the police investigated C.P.'s complaint, they found tire marks in the snow near her apartment showing an unusual pattern: three snow tires and a summer tire on the left front.

C.P. testified that while her assailant was assaulting her, he spilled semen on her comforter. Her comforter was chemically analyzed for semen stains which indicated that the semen came from a man with blood group type "B."

Nix was convicted of the burglary and rape of C.P.

S.C.

S.C., a young Caucasian woman, lived in a trailer located in a trailer park on the west side of Anchorage approximately nine blocks from C.P.'s residence, five blocks from L.O.M.'s residence, and six blocks from J.B.'s residence. On February 2, 1979, after celebrating her birthday at a local restaurant, S.C. and a friend, Russell Sell returned to her trailer at approximately 1:00 a.m. She found her door partially open and defendant Barry Nix, whom she had not previously met, asleep in a chair in her front room. She looked around the front room and discovered it had been ransacked. She became quite agitated, woke Nix up demanding to know who he was and why he was in her front room. When he proved unresponsive, she called the police and her landlord. She then went into her bedroom and found her drawers pulled out and her personal belongings scattered about the room. She specifically noticed that someone had taken her babydoll pajamas and suggestively laid them out on her bed. It looked like someone had been lying on the...