State v. Vargas, #26885
| Decision Date | 19 August 2015 |
| Docket Number | #26885 |
| Citation | 2015 S.D. 72 |
| Court | South Dakota Supreme Court |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. ALFREDO L. VARGAS, Defendant and Appellant. |
#26885-r-GAS
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA
MARTY J. JACKLEY
Attorney General
CAROLINE SRSTKA
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff
and appellee.
JAMY PATTERSON of
Pennington County Public
Defender's Office
Rapid City, South Dakota
Attorneys for defendant
and appellant.
[¶1.] A jury found Defendant, Alfredo Vargas, guilty of attempted fetal homicide. He appeals, alleging that attempted fetal homicide is a legal impossibility and that the circuit court made erroneous evidentiary rulings. We reverse.
[¶2.] A jury found Defendant guilty of attempted fetal homicide. During the trial, the jury heard from Lisa Komes. Komes testified that she learned that she was pregnant with Defendant's child in February of 2010. She told Defendant about her pregnancy, and he indicated that he wanted her to obtain an abortion. Komes did not want to be pregnant at that time, but she did not want an abortion either. Their relationship suffered as a result of "the elephant in the room." She explained it was not unusual for him to buy her fountain drinks, but on one occasion after becoming pregnant she noticed that a drink he gave her tasted bitter. She disregarded it as "watered down . . . or something," and threw the cup and drink away. A similar incident occurred one morning when Defendant brought her a fountain drink with white powder on the bottom of it. When she was done with the drink, Defendant rinsed the cup out and threw it away. Again, this drink tasted bitter. The next time he brought her an unusual drink it smelled "minty, and it tasted terrible." She called law enforcement, telling officers that she believed her boyfriend was poisoning her. Law enforcement took the drink. One more time, Defendant brought Komes a drink at work, and again she turned it over to lawenforcement. She never felt sick from any of the drinks, and her baby was born healthy on October 5, 2010.
[¶3.] Maggie Toavs was Defendant's sister-in-law at the time of trial. She testified that in April 2010, she told Defendant she wanted blue cohosh to help her induce labor. She was over eight months pregnant at that time and had just been released from the hospital for preterm labor. Defendant told her that he had some, and Toavs, along with her daughter, went to his house to obtain the cohosh. While Toavs and her daughter were at his house, he initially told them that he had the cohosh for his friends who did not want to have a baby. At some point during the exchange, he told them he had it for Komes and his baby. He told Toavs that he was putting the substance in Komes's drinks. Toavs assumed that Komes had consented to adding the substance to her drinks. Toavs took some of the substance from Defendant, but did not remember looking at the bottle to see what it was that he offered her. She returned home and tried the substance in a drink but could not drink all of it because it "tasted really bitter." Toavs' daughter testified similarly.
[¶4.] At the time of these incidents, Defendant was married to Melissa Vargas. A phone call between Defendant and his wife was played at trial. At one point in the conversation his wife asked: Defendant responded:
[¶5.] Roger Mathison testified as an expert in chemistry; he is a chemist at the State Health Lab in Pierre, South Dakota. He testified to the contents of the drinks that Komes gave to law enforcement. The liquids were stored in two different containers; one was in a large can, and the other was in a small can. The liquid contained in the larger can contained 141 milligrams of pulegon per liter. Pulegon is a constituent of the mint family. He did not have a way to determine exactly what oil or plant material the pulegon may have originated from. He did not know if it was peppermint, spearmint, or pennyroyal. According to his tests, there was nothing unusual in the smaller can of liquid.
[¶6.] Richard Wold is a forensic examiner with the Rapid City Police Department. He testified as an expert in forensic examination. He tested the same liquids that Mathison tested, but he did not discover pulegon in either liquid. Instead, Wold found terpin hydrate in the liquid in the smaller can. Terpin hydrate is an over-the-counter cough suppressant, but it is no longer used in cough medicine. It is not in the same family as pulegon. Wold found nothing in the substance contained in the larger can.
[¶7.] Scott Phillips, a medical toxicologist, testified that pulegon can be extracted from the plant pennyroyal. He also testified that pennyroyal is part of the mint family, and that the "American variety is a little bit more bitter mint type of taste . . . versus the European variety, which isn't quite as bitter." Pennyroyal is both a food and supplement and is not regulated by the Federal Drug Administration. He testified that it is primarily used for simple things such as upper respiratory tract inflammation. It has also been used to bring on menstrualperiods and as an abortifacient. Ingestion of the substance can cause an irritated stomach, nausea, and vomiting, depending on the amount ingested. In large amounts it can cause kidney failure and liver failure, both of which can lead to bleeding, seizures, and comas. He testified that the literature regarding its use as an abortifacient is vague, but some literature indicates that it causes uterine contractions as would occur in labor. Other literature suggests that the liver damage leads to abortion or that it causes slight sloughing of the uterine lining. He opined that it was probably a combination of all of those things that lead to an abortion. He concluded that if taken in sufficient quantities, pennyroyal in its pure form could lead to an abortion, but it would lead to sickness and illness in the pregnant woman as well.
[¶8.] Phillips also testified about cohosh. He testified that black cohosh1 is an herb in the buttercup family and has been used by herbalists over the years to treat perimenopausal symptoms. It has a very bitter type of flavor. He testified that "some have suggested its use as an abortifacient, but probably not as commonly as pennyroyal oil or some of the other ones." An adult that ingested a small amount, such as one capsule, might not see any symptoms.
[¶9.] Defendant appeals the jury verdict asserting: (1) attempted fetal homicide is a legal impossibility, (2) Defendant's spousal privilege and right to confrontation was violated by admission of the taped conversation between him and his wife, (3) the circuit court abused its discretion by admitting 404(b) evidence, (4)the circuit court abused its discretion by admitting the State's experts, and (5) there was insufficient evidence to convict Defendant.
Attempted fetal homicide
[¶10.] Defendant asserts attempted fetal homicide is a legal impossibility because it does not require a specific intent to kill. Further, that in this case the jury was not properly instructed on that element of the offense. Defendant proposed an instruction that would require the jury to find that Defendant intended to cause the death of the "fetus," therefore he has preserved this error for appeal.
[¶11.] South Dakota does not have a statute specifically defining attempted fetal homicide. South Dakota's attempt statute, SDCL 22-4-1, provides in part:
Unless specific provision is made by law, any person who attempts to commit a crime and, in the attempt, does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration of that crime, is punishable for such attempt at maximum sentence of one-half of the penalty prescribed for the underlying crime.
Fetal homicide is enumerated in SDCL 22-16-1.1:
"[T]o prove an attempt, 'the prosecution must show that defendant (1) had the specific intent to commit the crime, (2) committed a direct act toward the commission of the intended crime, and (3) failed or was prevented or intercepted in the perpetration of the crime.'" State v. Reed, 2010 S.D. 66, ¶ 7, 787 N.W.2d 1, 3 (quoting State v. Disanto, 2004 S.D. 112, ¶ 15, 688 N.W.2d 201, 206).
[¶12.] At issue in this case is the first of the three elements that the State must prove—Defendant "had the specific intent to commit the crime" of fetal homicide. "Specific intent has been defined as meaning some intent in addition to the intent to do the physical act which the crime requires, while general intent means an intent to do the physical act or, perhaps, recklessly doing the physical act which the crime requires." State v. Rash, 294 N.W.2d 416, 417 (S.D. 1980) (quoting People v. Lerma, 239...
To continue reading
Request your trial
-
State v. Liaw
...for grand theft." Id. This court also recently discussed the issue in State v. Vargas, a case involving attempted fetal homicide. 2015 S.D. 72, ¶ 17, 869 N.W.2d 150, 157. In Vargas, the trial court failed to instruct the jury that the State must prove beyond a reasonable doubt that the defe......
-
State v. Abdo
...for clear error.Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d at 377. Evidentiary rulings are reviewed for an abuse of discretion. State v. Vargas, 2015 S.D. 72, ¶ 19, 869 N.W.2d 150, 158.Analysis 1. Motions to Suppress[¶15.] Abdo argues that law enforcement was required to obtain a warrant before......
-
Novotny v. Sacred Heart Health Servs.
...circuit court's order violated a statutory privilege, it raises a question of statutory interpretation requiring de novo review.” State v. Vargas, 2015 S.D. 72, ¶ 19, 869 N.W.2d 150, 158 (quoting Andrews v. Ridco, 2015 S.D. 24, ¶ 14, 863 N.W.2d 540, 546 ).Analysis[¶ 6.] We have not previous......