State of South Dakota v. Ernest Albert Fisher, Jr.

Summary

The Supreme Court of South Dakota affirmed Ernest Albert Fisher Jr.'s convictions following a retrial on rape and sexual contact offenses involving his daughter. The court held that evidence of Fisher's attempt to fabricate evidence was admissible to show consciousness of guilt and that alleged defects in the indictment did not warrant dismissal because the indictment and jury instructions adequately apprised him of the charges and caused no prejudice.

Holdings

1. Evidence that a defendant fabricates evidence in an attempt to conceal the charged crime is relevant consciousness-of-guilt evidence admissible as other-act evidence under SDCL 19-12-5 (Rule 404(b)), provided it relates to a material issue and survives the Rule 403 balancing test.
2. Admission of fabrication evidence, subject to reasonable restrictions, did not deny Fisher the right to testify or his constitutional right to confront and cross-examine Dobras.
3. Counts 2 and 3 were not duplicitous because the indictment charged violations of the pre-amendment rape statute and did not charge both third-degree and first-degree rape in a single count.
4. Counts 5 and 6 were sufficient because the indictment used the statutory language and gave Fisher adequate notice; even if the degree designation was defective, the defect was cured because the statute, jury instructions, and proof established the essential elements of the offense.
5. The court declined to reconsider issues concerning third-party-perpetrator evidence, uncharged sexual acts, and the sexually explicit DVD cover because those issues had already been raised and resolved in the prior appeal and neither the facts nor the law had changed.

Questions Presented

1. Whether evidence that Fisher solicited the fabrication of evidence to discredit the victim was relevant and admissible under Rule 404(b), and whether its probative value was substantially outweighed by unfair prejudice.
2. Whether admission of the fabrication evidence denied Fisher his rights to testify and to confront and cross-examine witnesses.
3. Whether Counts 2 and 3 of the indictment were duplicitous because the charged conduct allegedly spanned an amendment to the rape statute.
4. Whether Counts 5 and 6 were fatally defective because the indictment misstated the degree of rape.
5. Whether the court should reconsider issues concerning third-party-perpetrator evidence, uncharged sexual acts, and the sexually explicit DVD cover that had already been resolved in Fisher's prior appeal.

Disposition

affirmed