State v. Fisher, 2013 SD 23

Defendant was retried on multiple rape and sexual contact offenses against his daughter after the 2008 conviction was overturned on direct appeal.
At the prior trial, convictions included first-degree rape, third-degree rape, and sexual contact with a child; he received 60 years with some suspended.
On retrial in Feb. 2012, a jury again found him guilty on all charges and imposed the same overall sentence.
Pretrial motions included admissibility of evidence about a subornation of perjury conviction and restrictions on how the State could present it.
The State sought to introduce the fabricated-affidavit scheme (Dobras) to show consciousness of guilt; the court imposed strict limitations and granted co-counsel to assist defense.
The trial court ultimately admitted the subornation evidence, and the indictment was upheld as not fatally defective; defense motions to dismiss were denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of subornation of perjury evidence	Fisher contends it was improper/unduly prejudicial	Evidence prejudicial and irrelevant to guilt	Admissible as 404(b) evidence; probative value outweighs prejudice
Duplicity of Counts 2 and 3	Counts combined pre-/post-amendment law; duplicitous	Counts violated rule against duplicity	Not duplicitous; proper under old law and correctly instructed
Indictment Counts 5-6 and post-amendment law	Indictment mislabeled degree; potential fatal defect	Indictment's form error cured	Not fatal; form defect cured, indictment sufficient
Indictment sufficiency and amendment	Indictment improperly stated law	Indictment amended for form, not substance	Indictment sufficient; any defect cured; no abuse of discretion
Overall admissibility of subornation evidence under Rule 404(b)	Evidence necessary to establish consciousness of guilt	Prejudice outweighed by risk of constitutional issues	Admissible; restricted presentation did not violate rules or confrontation rights

State v. Bruce, 2011 S.D. 14, 796 N.W.2d 397 (S.D. 2011) (Rule 404(b) admissibility of other acts; relevance and prejudice balancing)
State v. Toohey, 2012 S.D. 51, 816 N.W.2d 120 (S.D. 2012) (Evidentiary balancing under SDCL 19-12-3 (Rule 403))
State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (1946) (S.D. 1946) (Consciousness of guilt via fabrication of evidence)
State v. Fisher, 2011 S.D. 74, 805 N.W.2d 571 (S.D. 2011) (Prev. Fisher1 issues; evidentiary rulings reviewed)
State v. McKinney, 2005 S.D. 73, 699 N.W.2d 471 (S.D. 2005) (Confrontation and cross-examination rights limitations)
State v. Goodroad, 521 N.W.2d 433 (S.D. 1994) (Indictment sufficiency; use of statute language)
State v. Anderson, 1996 S.D. 46, 546 N.W.2d 395 (S.D. 1996) (Indictment form and amendability for non-substantive changes)