Considered on Briefs November 30, 2015
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE JOSEPH NEILES, Judge.
MARTY J. JACKLEY, Attorney General, JOHN M. STROHMAN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
BEAU J. BLOUIN, Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
GILBERTSON, Chief Justice
[¶1] A Minnehaha County jury convicted Jeremias Hernandez on six counts of child rape--SDCL 22-22-1(1), and six counts of sexual contact with a minor--SDCL 22-22-7. Some counts within the indictment were phrased identically. Hernandez contends the evidence was insufficient to show six sexual penetrations and to establish the county where three of the child rape counts occurred. Hernandez also asserts that the identically phrased counts deprived him of due process. Specifically, he argues that the identically phrased counts subjected him to multiple punishments for a single offense, deprived him of fair notice, and preclude him from pleading the convictions in a subsequent case. Hernandez argues that if a defendant is indicted on more than one count of violating the same statutory offense (and the language used in the counts is identical), due process and double jeopardy concerns require the State to elect the specific acts that the State relies on for each of the identically phrased counts. The circuit court held it did not. We affirm.
Facts and Procedural History
[¶2] On June 21, 2013, a grand jury indicted Hernandez on twelve felony counts for child rape and sexual contact of two minor sisters, D.C. and L.C.
[¶3] Counts 1, 2, and 3 were identical: each charged first-degree rape of D.C., a child under thirteen, occurring between October 2011 and May 2012 in Minnehaha County.
[¶4] Counts 4, 5, 6 were identical: each charged first-degree rape of D.C., a child under thirteen, occurring between May 2012 and May 2013 in Minnehaha County.
[¶5] Counts 7 and 8 were identical: each charged sexual contact with D.C., a child under sixteen, occurring between October 2011 and May 2012 in Minnehaha County.
[¶6] Counts 9 and 10 were identical: each charged sexual contact with D.C., a child under sixteen, occurring between May 2012 and May 2013 in Minnehaha County.
[¶7] Counts 11 and 12 were identical: each charged sexual contact with L.C., a child under sixteen, occurring between October 2012 and May 2013 in Minnehaha County.
[¶8] During the trial, D.C., a fifth grader, testified that Hernandez (who lived with them at the Garfield Apartments in Sioux Falls, South Dakota) put his hand on her " bottom part" multiple times in the master bedroom; Hernandez licked her on her bottom part on multiple occasions; and Hernandez tried to put his bottom part into her bottom part on multiple occasions in both the master bedroom and D.C.'s bedroom, resulting in Hernandez ejaculating onto D.C. D.C. also testified that Hernandez touched her breasts on multiple occasions. D.C. testified the same thing happened to L.C., D.C.'s younger sister (with the exception that Hernandez would not touch L.C.'s breasts). This happened to L.C. more than one time, D.C. testified. Hernandez, D.C., L.C., and the girl's mother (V.C.), subsequently moved to a trailer home at Delta Place. D.C. testified that, after the move, Hernandez continued to place his hand on her bottom part, lick her bottom part, and rub her chest on more than one occasion. Further, D.C. testified that Hernandez had her touch his bottom part by rubbing it up and down until " white stuff" would come out. D.C. also testified that she saw Hernandez touch L.C.'s bottom part, lick L.C.'s bottom part, and try to put his " thing" inside her.
[¶9] Klely Martinez, mother of one of D.C.'s friends, testified that D.C. told Martinez about the sexual activity with Hernandez; that D.C. told Martinez that Hernandez would touch D.C. on her private parts; and that D.C. told Martinez that D.C. did not want the same to happen to L.C. anymore. Martinez testified that she took D.C. and L.C. to her pastor at Augustana Lutheran Church in Sioux Falls. The pastor, Jeanette Clark, was a mandatory reporter. Pastor Clark testified that she drove to the police station and Martinez and the girls followed. At the police station, they informed the officers of the situation. From the police station, V.C. was telephoned. V.C. testified that D.C. subsequently informed V.C. about the incidents and V.C. confirmed the living arrangements over the applicable timeframe.
[¶10] Colleen Brazil, a forensic interviewer with Child's Voice (a children's advocacy center) interviewed D.C. on June 10, 2013. D.C., whose date of birth was October 21, 2002, was ten years old at the time of the interview. The jury viewed a video recording of the interview whereby D.C. confirmed many of the same allegations, including the fact that this all started when D.C. was nine years old.
[¶11] Hernandez did not call any witnesses in his defense, but he did move the court for judgment of acquittal. Hernandez argued that the State failed to introduce sufficient evidence to show that he penetrated D.C., as alleged in the indictment. The circuit court denied the motion stating, " [D.C.'s] statement that was offered to the Child's Voice forensic interviewer did include evidence which does support those charges . . . ."
[¶12] At the conclusion of evidence, the circuit court instructed the jury. The court's instructions were typical. The instructions spelled out the elements of each count in the indictment, instructed the jury to consider each count in the indictment and the evidence applied to that count, and instructed the jury that they ...