State v. Nicholas

663 P.2d 1356 (1983)

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Nature of the Case

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Facts

Ms S. was awakened by an intruder in her house. She was raped. About 6 months later, Ms. S. was again raped in her bed by an intruder. She notified the police and described the rapist as slender and muscular, with short curly hair and an odor of sweat mixed with cologne. He was wearing two layers of clothing, 'like a T-shirt with a shirt over it or a jacket over it.' Ms. S. felt that the January and June rapes had been perpetrated by the same person. A police dog picked up a scent on the bushes near the victim's house and eventually they found D. The dog indicated that it was D's scent he was following. D was extremely sweaty and red-faced and was apparently having an erection. D also had two small fresh scratches on his face. D was wearing 'dirty tennis shoes, a blue, very baggy T-shirt type of affair, and blue jeans.' He was not wearing socks or underwear. After arresting D, the police searched his residence. D's mother gave them a sweatshirt of his which was similar to that worn by the January rapist. The fingernail scrapings proved to contain human blood, but in insufficient quantities to type. The vaginal smear contained sperm, and an acid phosphatase test showed positive for a type O secretor which meant, since Ms. S. is a type O secretor, that the rapist was either a type O secretor or a nonsecretor, categories covering about 60 percent of the population. D was a type A nonsecretor, so he was not ruled out by the acid phosphatase test. D was found guilty and appealed.