State v. Vargas
2015 S.D. 72
| S.D. | 2015Background
- In 2010 Lisa Komes told Alfredo Vargas she was pregnant; Vargas allegedly gave her multiple bitter/minty-tasting fountain drinks which she sometimes discarded and sometimes turned over to police. The baby was later born healthy.
- Witnesses (including Maggie Toavs and her daughter) testified Vargas gave them a bitter substance (cohosh/pennyroyal) to induce labor and told them he was putting such substances in Komes’s drinks; Toavs tried some and found it very bitter.
- Chemical testing yielded conflicting results: one lab found pulegone (a mint-family constituent) in one sample; another found terpin hydrate in a different sample and nothing in the other sample.
- A recorded phone call between Vargas and his wife (made with a detective listening and later produced to police) included statements in which Vargas admitted giving pennyroyal to Komes; the court admitted the recording over Vargas’s objection.
- Vargas was convicted by a jury of attempted fetal homicide; he appealed, arguing (inter alia) attempted fetal homicide is a legal impossibility, the spousal call admission violated spousal privilege and the Confrontation Clause, other-act evidence was improperly admitted, and certain evidentiary rulings were erroneous.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Vargas) | Held |
|---|---|---|---|
| Whether attempted fetal homicide is a cognizable offense | Attempt applies to fetal homicide under SDCL 22-16-1.1(1); attempt statute covers crimes generally | Attempted fetal homicide is legally impossible because attempt requires specific intent to cause death and fetal-homicide statute includes death element; jury instructions failed to require intent to kill the fetus | Attempted fetal homicide can exist under §22-16-1.1(1) only when the State proves specific intent to cause fetal death; here instructions were erroneous because they allowed conviction based on intent to cause serious bodily injury rather than intent to kill |
| Admissibility of recorded spousal phone call (privilege and confrontation) | Wife waived privilege by recording and turning the call over; call admissible and not testimonial in a way that violates Confrontation Clause | Call was a confidential marital communication protected by spousal privilege and Melissa’s statements were testimonial hearsay; admission violated Confrontation Clause because wife was unavailable and not cross-examined | Admission of the call was erroneous: spousal-privilege exception for crimes against a child applies to unborn child (so privilege exception justified admission), but Melissa’s recorded statements were testimonial and admission violated Confrontation Clause and was not harmless (call contained Vargas’s admissions) |
| Admissibility of other-act evidence (Toavs testimony re: cohosh/pennyroyal) | Evidence showed common scheme/plan, knowledge, and absence of mistake; relevant and probative | Prior-act testimony was unfairly prejudicial and inadmissible under Rule 404(b) | Court did not abuse discretion in admitting other-act evidence: probative for knowledge/plan and not substantially outweighed by prejudice |
| Sufficiency of expert and forensic evidence | State’s experts corroborated presence/effects of pennyroyal/cohosh; combined evidence supports conviction | Experts’ testimony had weaknesses and inconsistent lab results undercut proof; insufficient evidence to prove intent to kill | Court did not decide these issues on appeal because reversal was required on instruction and Confrontation Clause errors |
Key Cases Cited
- State v. Lyerla, 424 N.W.2d 908 (S.D. 1988) (attempted second-degree murder cannot exist because attempt requires specific intent to kill)
- State v. Reed, 787 N.W.2d 1 (S.D. 2010) (elements of attempt: specific intent, direct act, prevention of completion)
- State v. Rash, 294 N.W.2d 416 (S.D. 1980) (distinguishing specific intent from general intent)
- Braxton v. United States, 500 U.S. 344 (U.S. 1991) (attempt to commit murder requires specific intent to kill)
- State v. Charger, 611 N.W.2d 221 (S.D. 2000) (attempt distinguished from completed crime where intended criminal result is an element)
- United States v. Nash, 910 F. Supp. 2d 1133 (S.D. Ill. 2012) (spousal-recording and privilege issues; exceptions when spouse is crime victim or joint participant)