CONSIDERED ON BRIEFS ON MAY 20, 2013.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE ROBIN J. HOUWMAN Judge.
MARTY J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
MOLLY C. QUINN of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for defendant and appellant.
GILBERTSON, Chief Justice.
[¶1.] Eight-year-old C.I. alleged he had been sexually abused by Steven Brende when he spent the night at Brende's home on one occasion. Following a jury trial, Brende was convicted of two counts of first-degree rape and two counts of sexual contact with a child under age 16. Brende was sentenced to serve 50 years for each of his first-degree rape convictions and 15 years for each of his sexual contact convictions, with the sentences to run concurrently. Brende appeals, arguing his due process right to jury unanimity was violated because the indictment was duplicitous, the evidence was insufficient to support his convictions, and his sentences were unconstitutional.
[¶2.] During the 1990's, Brende met and became friends with C.I.'s parents. C.I. was born on February 9, 2003. C.I.'s parents trusted Brende, and they allowed C.I. to spend the night at Brende's home on various occasions. C.I. enjoyed spending time with Brende and referred to Brende as "Uncle Steve." In February or March of 2011, eight-year-old C.I. told a family friend that he had been sexually abused by Brende at Brende's home. C.I.'s parents contacted law enforcement to report the abuse on March 12, 2011, after being made aware of C.I.'s allegations.
[¶3.] On March 14, 2011, C.I. was evaluated at Child's Voice regarding the alleged sexual abuse. C.I. was in second grade at the time. The evaluation included both a forensic interview and a physical examination. The forensic interview was videotaped in accordance with routine. During the interview, C.I. described four sexual acts he claimed occurred one night when he slept at Brende's home. According to C.I., Brende performed oral sex on C.I., touched C.I.'s penis, and "humped" C.I. on two separate occasions that night. C.I. claimed Brende told him to keep the events a secret and that if C.I. told anyone, he would never get to see Brende again.
[¶4.] While interviewing C.I., the forensic interviewer attempted to determine when the alleged abuse occurred. C.I. indicated that all of the events occurred on the same night, but was unable to establish what night that was. C.I. told the forensic interviewer that he was six and was in first grade when the abuse took place. However, when discussing the alleged abuse with C.I. during the interview, the forensic interviewer repeatedly referred to the events as occurring while C.I. was in second grade. On at least one occasion, C.I. clarified that the abuse occurred while he was in first grade despite the forensic interviewer's reference to second grade. Upon completion of the forensic interview, C.I. was physically examined by a physician. The examination did not reveal any signs of physical injury or abuse.
[¶5.] Following C.I.'s evaluation at Child's Voice, law enforcement contacted Brende and Brende agreed to be interviewed. When asked about his relationship with C.I., Brende indicated he considered C.I. to be his nephew and stated they were "close." Brende told law enforcement that the last time C.I. spent the night at his home was on C.I.'s mother's birthday (which Brende initially thought was in November, but later agreed was actually in August). During the interview, Brende repeatedly denied sexually abusing C.I.
[¶6.] On March 25, 2011, the grand jury returned an indictment charging Brende with two counts of first-degree rape, in violation of SDCL 22-22-1(1), and two counts of sexual contact with a child under age 16, in violation of SDCL 22-22-7. The indictment alleged the conduct took place on or about August 1, 2010, through November 30, 2010. During the dates charged in the indictment, C.I. was 7 years old and in second grade, and Brende was 53 years old. Brende was arraigned and pleaded not guilty to the charges.
[¶7.] The case proceeded to jury trial on April 30, 2012. During trial, the videotape from C.I.'s forensic interview was admitted as substantive evidence and was viewed by the jury. In addition, C.I. testified. C.I.'s trial testimony was generally consistent with the allegations C.I. made during the forensic interview. However, there were some inconsistencies.
[¶8.] At trial, C.I. described three sexual acts he claimed occurred on one occasion when he spent the night at Brende's home. Specifically, C.I. testified that while he and Brende were in the living room, Brende "put his penis up [C.I.'s] butt" and moved "back and forth" for "a short time." Next, C.I. testified that after he had fallen asleep in the bedroom, he awoke to find Brende "moving back and forth" with his penis in C.I.'s butt "crack." Further, C.I. testified that Brende touched C.I.'s penis.
[¶9.] On cross-examination, Brende's counsel attempted to clarify C.I.'s testimony regarding the incident that took place in Brende's bedroom. C.I. agreed he had testified that Brende's penis went into his butt crack, and clarified that Brende's penis did not go into his anal opening, just his butt crack. Additionally, contrary to the allegation C.I. made during the forensic interview, during cross-examination C.I. testified that Brende never made him put his penis in Brende's butt.
[¶10.] On May 4, 2012, the jury found Brende guilty of both counts of rape in the first degree and both counts of sexual contact with a child under age 16. On July 9, 2012, Brende received concurrent sentences of 50 years in the South Dakota State Penitentiary for each of the first-degree rape convictions and 15 years for each of the sexual contact convictions. Brende appeals, arguing his due process right to jury unanimity was violated because the indictment was duplicitous, the evidence was insufficient to support his convictions, and his sentences constitute cruel and unusual punishment.
ANALYSIS AND DECISION
[¶11.] 1. Whether Brende's due process right to jury unanimity was violated because the indictment was duplicitous.
[¶12.] "'Duplicity' is the joining in a single count of two or more distinct and separate offenses[.]" State v. Muhm, 2009 S.D. 100, ¶ 19, 775 N.W.2d 508, 514. "In other words, a duplicitous indictment or information includes a single count that captures multiple offenses[.]" Id. "Whether an indictment is . . . duplicitous is a question of law reviewed de novo." Id. ¶ 18, 775 N.W.2d at 514 (citing United States v. Damrah, 412 F.3d 618, 622 (6th Cir. 2005)).
[¶13.] "[One] vice of duplicity is that because the jury has multiple offenses to consider under a single count, the jury may convict without reaching a unanimous agreement on the same act, thereby implicating the defendant's right to jury unanimity." Id. ¶ 29, 775 N.W.2d at 517 (citing United States v. Karam, 37 F.3d 1280, 1286 (8th Cir. 1994)). This becomes even more of a concern in cases involving "single act" offenses, which include rape and sexual contact with a child under age 16. Id. ¶ 30 & n.5, 775 N.W.2d at 517 & n.5. In cases involving "single act" offenses, "the due process right to jury unanimity requires that the jury be unanimous as to the single act or acts that are the basis for the verdict." Id. ¶ 30, 775 N.W.2d at 518. Thus, "even though due process may not require time specificity in charging such cases, the jury must have been in agreement as to a single occurrence or the multiple occurrences underlying each count." Id.
[¶14.] To alleviate the concerns associated with duplicity, this Court adopted the "either or rule." Id. ¶¶ 32-33, 775 N.W.2d at 518-20.
The [either or] rule does not require dismissal of a duplicitous indictment. Rather, the government must elect a single offense on which it plans to rely, and as long as the evidence at trial is limited to only one of the offenses in the duplicitous count, the defendant's challenge will fail. Alternatively, if there is no election the trial court should instruct the jury it must find unanimously that the defendant was guilty with respect to at least one of the charges in the duplicitous count.
Id. ¶ 32, 775 N.W.2d at 518-19. Therefore, "[w]here the prosecution declines to make an election on a duplicitous count and the evidence indicates the jurors might disagree as to the particular act defendant committed, a standard unanimity instruction should be given." Id. ¶ 33, 775 N.W.2d at 519.
[¶15.] Following the settling of jury instructions at trial, the State raised concerns about duplicity and jury unanimity. The State acknowledged that it did not designate the specific act associated with each charge in the indictment. Further, the State acknowledged that in this case, "there [were] multiple acts that the jurors could use for any one of the charges to render a guilty verdict." Therefore, the State proposed that it would address the duplicity issue during its closing argument to ensure that the jury was "unanimous in their decision with regard to each of the acts that they've heard about." In the alternative, the State suggested that the unanimity requirement be addressed in a jury instruction. In response to the State's proposal, Brende's counsel stated she did not believe a formal jury instruction was necessary, and she agreed to have the duplicity issue addressed in closing arguments.
[¶16.] During closing arguments, the State expressly identified the four acts it intended the jury to consider during its deliberations. The four acts the State identified were consistent with the four acts C.I. described during the forensic interview. Specifically, the acts the State identified were: (1) Brende making C.I. place his penis in Brende's butt in the living room; (2) Brende performing oral sex on C.I.; (3) Brende placing his penis in C.I.'s butt crack in the bedroom; and (4) Brende touching C.I.'s penis. After expressly identifying the acts that corresponded with the four charges, the State commented on the unanimity requirement. The State reiterated there were four acts and four charges. The State requested that in considering the acts and charges, the jury "all be talking about the same act when you are deciding if there's enough evidence to prove beyond—that I have shown beyond a reasonable doubt that constitutes that act." ...