APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, HONORABLE JOHN J. DELANEY Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON MAY 26, 2009
[¶1.] Thomas Muhm was convicted of all five counts in an indictment alleging: one count of attempted first degree rape, one count of first degree rape, two counts of sexual contact with a child under sixteen, and one count of criminal pedophilia. The charges arose from allegations of weekly sexual abuse of two boys over several years. Muhm appeals arguing that: (1) the counts were multiplicitous and duplicitous in violation of due process and double jeopardy concerns; (2) the State failed to give notice of a report and the opinions of an expert witness; and, (3) the circuit court erred in failing to grant a new trial on the ground of newly discovered evidence. We affirm.
Facts and Procedural History
[¶2.] J.C. and C.S. regularly spent weekends with Muhm, a family friend at the time. C.S. began spending weekends at Muhm's home when C.S. was seven or eight years-old, and J.C. began spending weekends when he was six or seven. The State alleged that Muhm repeatedly, sexually abused the boys during these weekend visits.
[¶3.] The alleged abuse came to light in January 2006. The boys' mother testified that she had taken them to the doctor because J.C. had a rash on his foot and he had complained of a rash on his penis. After returning home, C.S. told his mother that he knew why there was a rash on J.C.'s penis. C.S. stated that Muhm had been sucking J.C.'s penis and making J.C. do things he did not want to do. C.S. also told his mother that Muhm put his penis in the boys' "butts" and then made them do the same to Muhm. After receiving similar information from J.C., the boys' mother called the police.
[¶4.] On February 2, 2006, the boys were interviewed by Lora Hawkins, a child forensic interviewer. During separate videotaped interviews, the boys disclosed further details of abuse. J.C., the younger brother, indicated that Muhm started touching J.C. when he was about seven, and the last time it had happened was about a week-and-a-half prior to the interview. J.C. said Muhm would put his hands on J.C.'s "pee-pee," and Muhm would put his "pee-pee" on J.C.'s "butt." J.C. also stated Muhm tried to put his "pee-pee" in J.C.'s "pooh hole," but Muhm's penis never "went in." J.C. indicated this happened more than once. J.C. also disclosed having to "jack off" Muhm, and Muhm doing the same thing to J.C. J.C. could not, however, describe what he meant by "jack off." J.C. finally disclosed having to lick chocolate syrup from Muhm's "pee-pee" and Muhm sucking on J.C.'s penis. J.C. denied ever having to do anything with Muhm's "pooh hole." J.C. told Hawkins that these things happened many times and that these things also happened to C.S. He also informed Hawkins that his stepbrother, S.R., was in prison for doing these same types of things to a neighbor. When Hawkins asked J.C. if S.R. had ever done something "icky to him," J.C. responded, "No."
[¶5.] C.S. similarly indicated that Muhm had been touching both C.S.'s and J.C.'s "privates." When asked what he meant by "privates," C.S. said "penis and butt." C.S. told Hawkins that Muhm would suck and rub C.S.'s penis. He indicated Muhm would put chocolate syrup on his own penis and make the boys lick it. C.S. also indicated that Muhm would put lubricants on his penis and on C.S.'s buttocks and then stick his penis inside C.S.'s "butt." He said this happened around thirty times. C.S. also told Hawkins that Muhm would make C.S. put his penis in Muhm's "butt," and that this occurred twenty times. C.S. said that the "bad stuff" always occurred on the couch in Muhm's living room. C.S. said he observed Muhm doing these things to J.C. and no one else had touched C.S.'s body in a similar manner.
[¶6.] After the interviews, a deputy sheriff contacted Muhm. During a forty-five minute non-custodial interview, Muhm denied any molestation of the boys, said that he did not understand why the boys would make such allegations, and indicated that he loved the boys like they were his own children.
[¶7.] In March 2006, the boys testified in front of a grand jury. Additional details and some inconsistencies arose in comparison with their interviews with Hawkins. Nevertheless, the general pattern of weekly sexual abuse over several years remained the same.*fn1
[¶8.] On March 16, 2006, Muhm was indicted on thirty-seven counts involving the two boys and four different statutory offenses. The charges were grouped within five categories. The first three categories charged repeated violations of three different statutory offenses involving J.C. occurring over two and one-half years. The last two categories charged repeated acts of two statutory offenses involving C.S. occurring over more than five years. Counts within each category were identical and undifferentiated; i.e., they charged the same statutory offense with the same boy and did not allege specific times and places of the acts. The counts within these categories charged:
* Counts 1-2: three acts of Attempted First Degree Rape of J.C. between July 12, 2003 and January 31, 2006;
* Counts 3-7: five acts of First Degree Rape of J.C. between July 12, 2003 and January 31, 2006;
* Counts 8-17: nine acts of Sexual Contact With a Child Under Sixteen (J.C.) between July 12, 2003 and January 31, 2006;
* Counts 18-27: nine acts of Sexual Contact With a Child Under Sixteen (C.S.) between October 23, 2000 and January 31, 2006; and
* Counts 28-37: nine acts of Criminal Pedophilia with C.S. between October 23, 2000 and January 31, 2006.
[¶9.] Muhm moved for a bill of particulars. After the State filed a bill of particulars, Muhm moved to dismiss the indictment on the grounds of multiplicity and duplicity of counts. In this motion, Muhm requested that the State be required to elect one count from each of the five categories for trial. The State agreed to the request, and the case proceeded to trial on only one count of each category of offense (counts 1, 3, 8, 18, and 28).
[¶10.] Three pretrial motions are relevant to this appeal. First, the State moved to introduce other crimes, wrongs, or acts under SDCL 19-12-5 (Rule 404(b)). The circuit court ruled that the State could not introduce the other acts identified in the State's notice. That ruling did not prohibit evidence of the repeated acts of alleged misconduct that had been charged in the dismissed counts. Second, in response to a defense motion, the court entered a discovery order requiring the State to provide the defense a list of the State's experts, including their reports and opinions. The third motion was filed on the first day of trial. Muhm moved to require the State to elect a particular act that the State would use to prove each count and to exclude evidence of the other repetitive sexual acts. This motion was denied.
[¶11.] At the time of trial, C.S. was twelve-years-old and J.C. was ten. The boys again described weekly sexual abuse occurring over the time periods alleged. And, as occurred in the grand jury proceedings, additional inconsistencies arose in their testimony.*fn2
[¶12.] The State called Dr. Leslie Fiferman, a psychologist, to testify about the traits of sexually abused children. Although the State had provided notice that Dr. Fiferman would testify and had identified the topics he would address, no further detail or report was provided. Therefore, immediately prior to Dr. Fiferman's testimony, the defense moved to exclude the testimony on the ground that no report or disclosure of his opinions had been made. The circuit court indicated that the State violated the discovery order, but allowed Dr. Fiferman's testimony.
[¶13.] The jury returned a verdict of guilty on all five counts. Muhm subsequently moved for a new trial, alleging a multiplicitous and duplicitous indictment that violated due process and double jeopardy protections. Muhm also alleged a discovery violation arising from Fiferman's testimony. While the motion was pending, the State produced a report concerning the children's stepbrother, S.R. In that report, S.R. admitted to molesting C.S. Muhm thereafter submitted a second new trial motion based on this newly discovered evidence. All motions were denied.
I. Whether Muhm was Denied Constitutional Protections by the Circuit Court's Denial of his Motion to Require the State to Elect One Specific Act as the Sole Basis for Each Count
[¶14.] As previously mentioned, before trial, the thirty-seven counts of the indictment were reduced to five. Each surviving count alleged a different sexual act involving either J.C. or C.S. Because the children alleged that each type of sexual act occurred repeatedly, Muhm moved to require State to elect one particular act as the sole basis for each count and to exclude evidence of the repetitive acts involving that same sexual offense. Muhm argued that without limiting the State's proof to one predetermined act for each count, the State would have multiple acts available to prove each count. Muhm contended that without an election, the indictment was multiplicitous and duplicitous depriving him of due process and the protections provided by the Double Jeopardy Clause.
[¶15.] The State responded that it would be unable to proceed with the prosecution if an election were required. The State explained that because of the young ages of the children and the repetitive nature of the alleged abuse over such a lengthy period of time, it would not be ...