## Facts

- On January 5, 1981, Ms. S. was awakened in her home by a hooded intruder who raped her in the dark; she could not see his face.
- During the January assault, Ms. S. asked, “Is it Peter?” referring to Edward Peter Nicholas, Jr., who lived nearby and had previously done yard work for her; the assailant did not respond and fled, and police developed no suspect.
- On June 25, 1981, Ms. S. was again raped in her bed by an intruder in similar circumstances; she described him as slender and muscular with short curly hair and an odor of sweat mixed with cologne, wearing layered clothing.
- Ms. S. believed the same person committed both attacks.
- Police used a tracking dog that took a scent near Ms. S.’s home, trailed through the neighborhood, and led officers to Nicholas in a nearby schoolyard; the handler testified the dog indicated it was following Nicholas’s scent.
- Officers found Nicholas shortly after the June rape; testimony described him as extremely sweaty and red-faced, apparently sexually aroused, and having fresh facial scratches described as fingernail scratches.
- Nicholas’s clothing and physical appearance were offered as consistent with Ms. S.’s description; police also obtained from Nicholas’s mother a sweatshirt similar to the hooded garment Ms. S. associated with the earlier assault.
- Medical evidence after the June rape included a vaginal smear showing sperm and test results indicating a type O secretor profile.
- Ms. S. was a type O secretor, meaning the perpetrator would be either a type O secretor or a nonsecretor—groups totaling about 60% of the population; Nicholas was a type A nonsecretor, so the testing did not rule him out.
- The State charged Nicholas with first-degree rape and first-degree burglary arising from the June incident and also charged him for the January incident; the jury convicted him on the June counts and acquitted him on the January counts.
- Nicholas appealed, challenging admission of the tracking-dog identification evidence and the serology/population-percentage evidence, arguing the verdicts were inconsistent, and claiming the rape and burglary should merge for punishment.

## Issues

1. Whether the trial court erred by admitting tracking-dog identification evidence linking Nicholas to the June rape and burglary.
2. Whether the trial court erred by admitting serology evidence (and related population-percentage testimony) showing the perpetrator fell within a broad class that included Nicholas because the testing did not exclude him.
3. Whether the jury’s acquittals on the January charges and convictions on the June charges were legally inconsistent.
4. Whether first-degree rape and first-degree burglary arising from the June incident must merge, or whether separate punishment is allowed under RCW 9A.52.050.

## Decision

- The Court of Appeals affirmed the convictions and sentence.
- It held the tracking-dog evidence was admissible where an adequate foundation was laid and the identification was supported by other evidence; dog-tracking identification could not be the only proof of identity.
- It held the serology results and testimony about how common the included blood/secretor categories were were admissible; the breadth of the included group affected weight, not admissibility.
- It held the verdicts were not legally inconsistent because the January and June incidents were separate events supported by different proof.
- It held the rape and burglary convictions did not merge; RCW 9A.52.050 permits separate punishment for burglary and an additional crime committed during the burglary.

## Legal Principles

- Tracking-dog identification evidence may be admitted when a proper foundation shows the dog’s training and reliability, the handler’s qualifications, and circumstances indicating the dog likely followed the perpetrator’s trail.
- In Washington, dog-tracking identification evidence may not, by itself, establish guilt beyond a reasonable doubt; it must be supported by other evidence connecting the defendant to the crime.
- Serology evidence that does not exclude a defendant is admissible if it makes identity more or less likely by placing the defendant within the class of possible perpetrators; the fact the class is large generally goes to weight, not admissibility.
- Verdicts are not legally inconsistent merely because a jury convicts on one incident and acquits on another, even if the incidents appear similar, when the evidentiary basis differs.
- Under RCW 9A.52.050, burglary and a separate offense committed in the course of the burglary may be punished separately; the offenses do not merge on that basis.

## Conclusion

State v. Nicholas affirmed Nicholas’s June 1981 first-degree rape and first-degree burglary convictions, holding that tracking-dog identification evidence was properly admitted when backed by other connecting proof, that serology evidence and related population-percentage testimony were admissible even though they only placed Nicholas within a broad group, that acquittal on similar January charges did not make the June verdicts legally inconsistent, and that RCW 9A.52.050 allows separate punishment for burglary and rape committed during the burglary.


State v. Nicholas, 663 P.2d 1356 (1983)