Judge finds Missoula man guilty of raping girl

A Missoula man charged with raping a 16-year-old girl was found guilty Tuesday at the end of a three-day bench trial in District Court.

Wilbert Louis Fish, 23, wept openly in court as District Judge John Larson convicted him of sexual intercourse without consent, a felony, and scheduled a sentencing hearing for March 15 at 2 p.m.

Fish, who a Missoula jury previously acquitted on rape charges in a separate case, faces a penalty of up to 100 years in the Montana State Prison and no less than two years. He can also be fined up to $50,000.

Over the course of the trial, which began Friday, Larson heard from about 12 witnesses, but the case boiled down to the testimony of just two - Fish and the teenage girl who claims he raped her on Halloween night last year.

The credibility of both witnesses came under fire as defense attorney Pat Flaherty and Chief Deputy County Attorney Karen Townsend mounted evidence against the victim and Fish.

Before attorneys delivered their opening statements last Friday morning, Fish pleaded guilty to tampering with a witness, a felony, thereby casting doubt on his credibility even before the trial had begun. Fish said he instructed a friend to lie about the rape under police questioning because he was scared, but Townsend suggested it was simply a means of creating an alibi.

The friend, Jason Konye, told a detective that he had been with Fish and the girl on the night of the rape, and that none of the alleged offenses had taken place. In fact, Fish and the girl were alone at his apartment when the rape occurred.

That was before Flaherty, in his two-hour cross examination of the victim, who is now 17, established a host of discrepancies in her testimony. Drawing from the girl's deposition and earlier statements she gave to law enforcement, Flaherty showed a flurry of inconsistent details regarding the nature of her relationship with the defendant prior to the rape.

Principal among those discrepancies was the girl's statement that she had never been to Fish's apartment prior to Halloween night. She later admitted having visited Fish's apartment briefly, but told detectives she hadn't remembered the occasion clearly because she'd been drinking.

Flaherty accused the girl of withholding the details about her drinking and said she only brought them up at trial to cover her tracks.

“Can you tell me why we've only learned about her drinking on the Friday before trial?” Flaherty asked.

And while Townsend acknowledged minor problems in the girl's testimony, she said those inconsistencies were “honest mistakes” and that the girl made no “deliberate attempt to mislead detectives.”

“But in Mr. Fish's case, he made deliberate falsifications,” Townsend said. “And these, as he well knew, were absolute deliberate lies.”

To illustrate Fish's “deliberate falsifications,” Townsend played a tape-recorded telephone interview between Fish and former Missoula Police Detective Greg Jacobson from Nov. 16, 2005, a little more than two weeks after the rape took place.

In the taped interview, Fish denied having had any contact with the alleged victim's skin, and said that aside from a brief period of over-the-clothes kissing, nothing sexual occurred.

But at trial, Fish testified that he kissed the girl's breasts and rubbed her crotch, but maintained that the activity was consensual.

Fish said he lied to police at the time because he was awaiting trial on separate rape charges and was nervous about implicating himself.

Those separate charges arose in March 2005 after police reported seeing Fish inside Club Cabo with his hand down an unconscious 21-year-old woman's pants. In that case, a Missoula jury deliberated less than two hours before announcing its not guilty verdict. He was arrested for the second time Dec. 8, 2005, about five weeks after the girl reported the rape to police.

In addition, Fish said he lied to authorities because he was concerned about the prospect of statutory rape charges.

But Townsend said Fish became forthright only after learning that the prosecutor had obtained indisputable forensic evidence: swabs taken from the girl's body the night of the incident. Analysis of those swabs showed unmistakable traces of Fish's DNA on the girl's breasts and body.

“And when he learns that the DNA clearly shows what a lie he's in, then he changes his story,” Townsend said. “Then he wants you to believe him that these activities were consensual.”

The analysis also showed minor traces of the victim's DNA, which Flaherty posited could have been a product of consensual kissing.

But Larson, who became the finder of fact when Fish waived his right to a jury trial last month, announced a guilty verdict without even pausing after Townsend uttered the final syllable of her closing argument.

After the verdict, as spectators, mainly law enforcement officials, filed out of the courtroom, Fish's sobbing was the only sound.

Larson told Fish that he would likely be granted a supervised release in the months before the sentencing hearing, but that his freedom depended entirely on the outcome of a urine analysis.