- Associated Press - Thursday, August 20, 2015

SIOUX FALLS, S.D. (AP) - South Dakota’s Supreme Court reversed the attempted fetal homicide conviction Thursday of a man accused of spiking his girlfriend’s beverages with an herb in 2010 to try to induce an abortion.

Under the ruling, the high court found a lower court made mistakes by giving incorrect instructions to the jury about the elements of the charge and letting jurors listen a to phone call between defendant Alfredo Vargas and his wife.

“… Defendant was improperly convicted of the crime of attempted fetal homicide because the jury did not have to find that he had the specific intent to cause the death of the unborn child - an element which the State has the burden to prove,” the court stated in its opinion.

A now-justice, Janine Kern, presided over the case when she was a judge in Pennington County and ordered Vargas to serve five years in prison in 2013. Kern did not participate in this decision.

Vargas, 38, was sentenced after jurors in Rapid City found him guilty of lacing his girlfriend’s drinks with an herb that in large quantities can cause an abortion. The state secured the conviction in a second attempt, after the first case filed against Vargas was thrown out when his attorney challenged the prosecution’s expert witness.

Defense attorney Jamy Patterson said Thursday that she is pleased with the high court’s decision and was working on notifying her client, who is being housed at the State Penitentiary in Sioux Falls.

Attorney General Marty Jackley said the decision over a possible retrial will be left to Pennington County State’s Attorney Mark Vargo, whose office handled the case.

Vargo did not immediately return a call seeking comment Thursday. Patterson, however, said prosecutors have indicated that they intend to retry the case. In the event of a new trial, Patterson said she would ask the judge to allow Vargas to remain free during the proceedings.

The substance that a state laboratory found in a drink is known as pulegon. A medical toxicologist during the 2013 trial testified that pulegon can be extracted from the plant pennyroyal, which is part of the mint family, and it has been used to “bring on menstrual periods” and cause abortions.

During the trial, Lisa Komes testified that she became suspicious of some bitter-tasting drinks that Vargas provided her and had law enforcement test them. She gave birth to a healthy boy in October 2010.

At the time of these incidents, Vargas was married to Melissa Vargas. The court tried to compel her to testify, but she did not appear in court despite a subpoena.

But the jury heard a conversation that was recorded when Melissa Vargas contacted the defendant with a detective in her presence. Alfredo Vargas admitted in the conversation to spiking Komes’s drinks, but the Supreme Court concluded the jury should not have heard the conversation.

“The erroneous admission of this phone call was not harmless because it allowed the jury to hear Defendant admitting that he put pennyroyal into Komes’s drinks on two different occasions,” the justices wrote. “Although the State argues that the testimony of other witnesses and results of the contaminated beverages established the same thing, this phone call was the only admission by Defendant to any witness that he put pennyroyal in Komes’s drinks.”


Follow Regina Garcia Cano on Twitter at https://twitter.com/reginagarciakNO

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