Man found guilty of rape

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PLANKINTON, S.D. — After 4½ hours of deliberation, a four-woman, eight-man jury found a Plankinton man accused of rape guilty on all counts here Friday.

Ernest Fisher, 32, was somber while the jury forewoman read “guilty” on all eight counts, the most serious of which was a single count of first-degree rape. He also is guilty of five counts of rape in the third degree and two counts of sexual contact with a child under the age of 16.

The jury got the case early Friday afternoon after the defense rested. Among Friday’s witnesses was Rich Kaplan, founder of Child’s Voice in Sioux Falls and a specialist in child abuse cases. Kaplan gave opposing testimony to the state’s medical expert, Nancy Free, regarding the physical exam of the 13-year-old victim.

Upon Kaplan’s review of the videotape of the physical exam, he said he found no indication that sexual abuse occurred.

“I have done over 1,000 exams and I don’t know what Dr. Free means by (the girls’ vaginal area) feeling differently,” Kaplan said. “I feel the jurors’ decision should be made on the best possible science.”

When cross-examined by Assistant Attorney General Brent Kempema, Kaplan admitted he could not make a factual diagnosis of abuse since he has not reviewed the oral history of the victim.

After Kaplan testified, Judge Sean O’Brien closed the courtroom for about 10 minutes as the victim — whose juvenile status protects her identity — was called to testify as a rebuttal witness.

The reading of the eight-count indictment and final instructions to the jury followed before closing arguments began.

Kempema started closing arguments, detailing each count Fisher faced.

“There is no scarlet letter that lets people know a child has been molested,” Kempema said. “Likewise, there is no scarlet letter on a perpetrator that they are out in our communities, molesting our children.”

He said the victim has no reason to lie and that this was the toughest decision she will make in her life. He said Fisher has every reason to lie and nothing to lose.

“Hold that man accountable for what he did to that little girl,” said Kempema. “You have the power to hold him responsible.”

Fisher attorney Chris Nipe stressed to jurors that if they pause or hesitate at any time to consider Fisher’s guilt or innocence, they have to vote to acquit on all charges.

Nipe told jurors the state did not prove its case beyond a reasonable doubt.

When speaking of a prior conviction of a sexual nature against Fisher, Nipe reiterated that friends and family this week testified Fisher never hid the conviction from them and everyone knew about it immediately.

Furthermore, Nipe told jurors that on two separate occasions, the courts awarded Fisher parental custody, even after the 1994 conviction. He also said more conclusive evidence from experts is warranted and that physical examinations should take longer than two to three minutes.

Nipe concluded his closing argument by telling jurors that “this was a game by the victim and she did not know how serious it was going to get. She had to keep going with the lies because she didn’t realize the seriousness or consequences of her actions.”

Said Aurora County State’s Attorney John Steele: “The defense spent most of the time on what the evidence should have been instead of what the evidence is.”

Fisher was immediately remanded to the custody of the Aurora County Sheriff’s Department pending sentencing.

An arraignment hearing for part two of the indictment is scheduled for Oct. 8.

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