State v. Havas

¶1concurring:

¶2I concur in the result, but desire to add a comment.

¶3When this case first came before us, in regard to a pretrial habeas application, there was serious doubt whether the State had presented any evidence at all, justifying a prosecution for forcible rape. See State v. Havas, 91 Nev. 611, 540 P.2d 1060 (1975). Indeed, on this issue, members of the court were divided in opinion, although our established practice has been extremely liberal in upholding determinations of probable cause, whether made by magistrates or by grand juries. See, for example Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973).

¶4It should be noted, therefore, that the fabtual determination now under review, i.e. the district court’s finding that the loss of the underpants was prejudicial, came in a case in which the alleged victim’s testimony was itself quite ambiguous on the issue of force, and subject to serious challenge concerning the manner the crime assertedly occurred.

¶5In this context, the district court’s finding cannot be held erroneous as a matter of law.

¶6dissenting:

¶7I respectfully dissent from the opinion filed by the majority. Victor Havas was charged with rape as a result of events occurring in February, 1975. Evidence was introduced at his preliminary hearing that Havas interviewed a young woman for a job at the Courtesy RV Center and as a part of the interview forced her to have sexual intercourse with him. On appeal from the granting of a petition for habeas corpus we found that there was sufficient evidence presented to support the information.1 State v. Havas, 91 Nev. 611, 540 P.2d 1060 (1975).

¶8The young woman testified at the preliminary examination *710that her clothes were not torn during the alleged rape, and that she put them on again after the event. The respondent contends that he was prejudiced by the prosecution’s failure to preserve that evidence. This court has recently set forth the standard for reversal for loss of evidence in Howard v. State, 95 Nev. 580, 600 P.2d 214 (1979), where it was held that the defense must show either (1) bad faith or connivance on the part of the government or (2) that the defendant was prejudiced by the loss of the evidence.

¶9No explanation is given for loss of the pants and respondent has made no attempt to show bad faith or connivance in their disappearance. It follows then that the majority believes that prejudice exists. Since respondent maintains only that he needs the pants to show that he did not force himself on his victim and tear her clothes, the victim’s testimony obviates the need for the clothing. Furthermore, a showing of “[p]hysical force is not a necessary ingredient in the commission of the crime of rape”. Dinkens v. State, 92 Nev. 74, 77, 546 P.2d 228, 230 (1976).

¶10The respondent has shown no genuine prejudice to his defense. I would reverse and remand for trial.