#26455-aff in pt, rev in pt & rem-DG

2013 S.D. 56

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                       ****
STATE OF SOUTH DAKOTA,                        Plaintiff and Appellee,

      v.

STEVEN ALLEN BRENDE,                          Defendant and Appellant.

                                       ****

                   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.


                                       ****
                                              CONSIDERED ON BRIEFS
                                              ON MAY 20, 2013

                                              OPINION FILED 07/17/13
#26455

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.

                                       FACTS

[¶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 1 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


1.      Child’s Voice is a medical evaluation center where children are evaluated for
        possible physical and sexual abuse.


                                          -1-
#26455

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. 2 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. 3 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


2.      The forensic interviewer asked C.I. what he meant by “humping.” C.I. was
        unable to explain it verbally, so the forensic interviewer introduced
        anatomically correct dolls to assist C.I. in describing what happened. The
        forensic interviewer then asked C.I. to show what he meant by “humping.”
        First, C.I. put the penis of the child doll up to the butt of the adult doll. C.I.
        described Brende backing his butt against C.I.’s penis. C.I. said that his
        penis went inside Brende’s butt and that Brende said it “felt good.”
        According to C.I., this incident occurred in Brende’s living room. Next, C.I.
        put the adult doll’s penis up against the butt of the child doll. When the
        forensic interviewer asked C.I. where Brende’s penis was C.I. stated “inside.”
        C.I. denied that the “humping” hurt, but indicated that it did not feel good
        and that he wanted to go home. C.I. stated that this incident occurred in
        Brende’s bedroom.

3.      According to C.I.’s father, the last time C.I. spent the night at Brende’s home
        was during C.I.’s Thanksgiving break in 2010. C.I.’s father noted that C.I.
        had gone to spend the night at Brende’s home on New Year’s Eve in 2010, but
        on that occasion C.I. called his parents to pick him up early because he
        wanted to go home.

                                            -2-
#26455

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.


                                          -3-
#26455

[¶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.” 4 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.” 5 Further, C.I. testified that Brende touched C.I.’s

penis. 6

[¶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


4.       This testimony differs from the allegation C.I. made during the forensic
         interview, in which C.I. claimed that while he and Brende were in the living
         room Brende made C.I. put his penis in Brende’s butt.

5.       While it may not be anatomically correct, we use language such as “butt” and
         “butt crack” throughout this opinion because this is the language C.I. used
         during the forensic interview and at trial.

6.       Although during the forensic interview C.I. stated that Brende performed
         oral sex on him, he did not mention this allegation during his direct
         testimony, nor was he cross-examined regarding this allegation.

                                           -4-
#26455

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

                                          -5-
#26455

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. 7



7.       Specifically, Counts 1 and 2 of the indictment were identical and alleged:

               That the Defendant, STEVEN ALLEN BRENDE, in Minnehaha
               County, State of South Dakota, on or about the 1st day of
               August, 2010, through the 30th day of November, 2010, then
               and there did commit the crime of Rape in the First Degree by
               accomplishing an act of sexual penetration with C.D.I., DOB 2-
               9-03, who was less than thirteen years of age, which conduct on
               the part of the Defendant was in violation of SDCL 22-22-1(1),
               contrary to the form of the statute in such case made and
               provided and against the peace and dignity of the State of South
               Dakota.

                                                              (continued . . .)
                                            -6-
#26455

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.” 8 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


________________________
(. . . continued)
         Counts 3 and 4 were also identical and alleged:

               That the Defendant, STEVEN ALLEN BRENDE, in Minnehaha
               County, State of South Dakota, on or about 1st day of August,
               2010, through the 30th day of November, 2010, did while being
               sixteen years of age or older, and more than three years older
               than the victim, did knowingly engage in sexual contact with
               another person, C.D.I., DOB 2-9-03, who was not the
               Defendant’s spouse and who was under the age of sixteen years,
               in violation of SDCL 22-22-7 contrary to the form of the statute
               in such case made and provided and against the peace and
               dignity of the State of South Dakota.

8.       The State indicated that “[b]y directing [the jury] to be unanimous in which
         of the acts they are reviewing in order to reach their verdict, we should have
         protection of the defendant against having the allegation that he was subject,
         possibly to some jurors’ thinking of one act, other jurors thinking of another
         act, when they render a verdict.”


                                           -7-
#26455

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.” Further, the State told the

jury: “So be fair. Consider each act. Be sure that you’re all talking about the same

act. Decide if it constitutes rape. If not, does it constitute sexual contact? If

neither, move on to the next act.”

[¶17.]        On appeal, Brende argues the indictment was duplicitous. Brende

asserts that at trial, the State presented evidence of at least five separate acts that

could have supported the four charges in the indictment. Brende claims that due to

the trial court’s failure to either require the State to specifically elect the acts it

would rely on at trial or to give a unanimity instruction, his right to jury unanimity

was violated because the jurors could have relied on different acts to support his

convictions. In making this argument, Brende acknowledges that general jury

instructions were given that required the jury to: consider each count separately;

consider the evidence that applied to each count (and make a finding beyond a

reasonable doubt); and reach a unanimous verdict. However, Brende argues these

instructions did not adequately protect his right to jury unanimity because these


                                            -8-
#26455

instructions did not specifically require the jury to unanimously agree on the

particular act or evidence that supported a finding of guilt on each count. Further,

although Brende acknowledges that the duplicity issue was addressed in closing

arguments, Brende asserts that resolving the issue in this manner was improper in

light of the “either or rule” adopted by this Court.

[¶18.]       In making these arguments, Brende admits he did not raise the

duplicity issue with the trial court and did not request a jury instruction on

unanimity. Accordingly, both the State and Brende agree this issue should be

reviewed for plain error. See State v. Bowker, 2008 S.D. 61, ¶ 45, 754 N.W.2d 56, 69

(“Where an issue has not been preserved by objection at trial, our review is limited

to whether the trial court committed plain error.”). With regard to plain error, this

Court has stated:

             We invoke our discretion under the plain error rule cautiously
             and only in exceptional circumstances. To demonstrate plain
             error, the appellant must establish that there was: (1) error, (2)
             that is plain, (3) affecting substantial rights; and only then may
             we exercise our discretion to notice the error if (4) it seriously
             affects the fairness, integrity, or public reputation of the judicial
             proceedings.

State v. Olvera, 2012 S.D. 84, ¶ 9, 824 N.W.2d 112, 115.

[¶19.]       However, despite the trial court’s failure to strictly comply with

the “either or rule” by either requiring the State to specifically elect the acts

it would rely on at trial or by giving a unanimity instruction, Brende cannot

establish the trial court committed plain error in this case because the jury

was ultimately informed of the unanimity requirement. During its closing

argument, the State discussed the unanimity requirement with the jury after

expressly identifying the four acts that corresponded with the four charges.
                                          -9-
#26455

Thus, although this manner of resolving the duplicity issue is not one of the

two options specified in the “either or rule,” it still allowed for the jury to be

informed of the unanimity requirement. Furthermore, Brende’s counsel

specifically agreed to resolving the duplicity issue in this manner, without a

formal jury instruction. Accordingly, Brende cannot establish that the trial

court’s failure to strictly comply with the “either or rule” affected his

substantial rights, or that this error seriously affected the “fairness, integrity,

or public reputation of the judicial proceedings.” See Olvera, 2012 S.D. 84, ¶

9, 824 N.W.2d at 115. As a result, Brende cannot demonstrate that plain

error occurred. Therefore, Brende’s claim that his due process right to jury

unanimity was violated is without merit.

[¶20.]        2.     Whether there was sufficient evidence to support
                     Brende’s convictions.

[¶21.]        Challenges to the sufficiency of evidence are reviewed de novo. State v.

Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 764 (citing State v. Tofani, 2006

S.D. 63, ¶ 35, 719 N.W.2d 391, 400). However, an appellate court is not required to

“ask itself whether it believes that the evidence at the trial established guilt beyond

a reasonable doubt.” Id. ¶ 5, 741 N.W.2d at 765 (quoting Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). “Instead, the

relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 318-19,

99 S. Ct. at 2789). Consequently, the evidence is insufficient only “when no rational

trier of fact could find guilt beyond a reasonable doubt.” Id. (quoting Jackson, 443

                                           -10-
#26455

U.S. at 318-19, 99 S. Ct. at 2789). Further, in reviewing the sufficiency of the

evidence on appeal, this Court “will not usurp the jury’s function in resolving

conflicts in the evidence, weighing credibility, and sorting out the truth.” State v.

Swan, 2008 S.D. 58, ¶ 9, 753 N.W.2d 418, 420 (quoting State v. Pugh, 2002 S.D. 16,

¶ 9, 640 N.W.2d 79, 82).

[¶22.]       Brende challenges the sufficiency of the evidence on two separate

grounds. First, Brende argues the State failed to present sufficient evidence of

penetration to sustain his two convictions for first-degree rape. Proof of “an act of

sexual penetration” is required in order to convict a defendant of rape under SDCL

22-22-1. SDCL 22-22-2 defines “sexual penetration” as “an act, however slight, of

sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however

slight, of any part of the body or of any object into the genital or anal openings of

another person’s body.” This Court has previously stated that “[p]enetration can be

inferred from circumstantial evidence and need not be proved by medical evidence.”

State v. Toohey, 2012 S.D. 51, ¶22, 816 N.W.2d 120, 129 (citing Spurlock v. State,

675 N.E.2d 312, 315 (Ind. 1996)). Further, “[i]n cases involving child victims, a

child’s limited understanding of [his or] her exact anatomical features does not

negate the child’s ability to provide circumstantial evidence that penetration

occurred.” Id. (citing United States v. St. John, 851 F.2d 1096, 1099 (8th Cir.

1988)). However, “a conviction cannot be sustained on mere suspicion or possibility

of guilt.” Id. (citing United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991)).

[¶23.]       In light of our resolution of the duplicity issue, the State is limited to

using the four acts it expressly identified during its closing argument (Brende


                                          -11-
#26455

making C.I. place his penis in Brende’s butt in the living room, Brende performing

oral sex on C.I., Brende placing his penis in C.I.’s butt crack in the bedroom, and

Brende touching C.I.’s penis) as the basis for each of the four convictions. Of these

four acts, C.I.’s allegation that Brende performed oral sex on him was the only act

in which the evidence presented at trial provided proof of sexual penetration that

was sufficient to sustain a conviction for first-degree rape. As discussed above, C.I.

did not mention the oral sex allegation during his direct testimony, nor was he

cross-examined regarding this allegation. However, at trial, the court rejected

Brende’s counsel’s hearsay objection and admitted the video of C.I.’s forensic

interview as substantive evidence pursuant to SDCL 19-16-38. See id. (providing

hearsay exception for “statement[s] made by a child under the age of thirteen . . .

describing any act of sexual contact or rape performed with or on the child by

another[.]”). Accordingly, the video of the forensic interview was viewed by the jury

for its substantive value. During the interview, C.I. stated that Brende performed

oral sex on him and that his penis was both inside and outside of Brende’s mouth.

These statements provided the jury with sufficient evidence of penetration to

support one of Brende’s convictions for first-degree rape.

[¶24.]       Nevertheless, in considering the three remaining acts, there was not

sufficient evidence of penetration presented at trial to support Brende’s second

conviction for first-degree rape. We address the three remaining acts in turn,

starting with the act C.I. alleged occurred in Brende’s bedroom. During direct

examination, C.I. testified that after he had gone to sleep in the bedroom, he awoke




                                         -12-
#26455

to find Brende moving back and forth with his penis in C.I.’s butt crack. C.I.

testified:

             State: What did Uncle Steve do, if anything else, there in the
             bedroom with you?
             C.I.: He – he was humping me.
             State: Can you tell the jurors what you mean by that, humping
             you?
             C.I.: He was going back and forth with his penis in my butt.
             ....
             State: When you say humping, was he – again, was he moving
             when he had his penis in your butt?
             C.I.: He was moving back and forth.
             State: Could you tell what part of your butt his penis went
             into?
             C.I.: The crack.

On cross-examination, Brende’s counsel questioned C.I. about his testimony

regarding the incident C.I. alleged took place in Brende’s bedroom. The following

exchange between Brende’s counsel and C.I. occurred:

             Defense: Okay. So you changed into your pajamas and you
             went into the bedroom to go to sleep?
             C.I.: Yes.
             Defense: Okay. And when you woke up you said that Steve
             was humping you?
             C.I.: Yes.
             Defense: Okay. And by humping you, you mean that he put
             his penis in your butt?
             C.I.: Yes.
             Defense: And you said that in your butt meant in your butt
             crack, correct?
             C.I.: Yes.
             Defense: Okay. I know this is uncomfortable to talk about but
             it’s important, okay?
             C.I.: Okay.
             Defense: Do you remember if – let me rephrase that. You
             didn’t say that his penis went inside your butt, did you, just in
             the crack?
             C.I.: Yes.

                                        -13-
#26455

             Defense: Okay. So it did not go into the hole, just into your
             butt crack?
             C.I.: Yes.
             Defense: Did anything go into your hole there?
             C.I.: No.
             Defense: Okay. And I appreciate that, [C.I.]. Again, I know
             these are difficult questions and you’re hanging in there, okay?
             C.I.: Yes.
             Defense: Okay. While Uncle Steve was humping you, you
             wanted it to stop?
             C.I.: Yes.
             Defense: Okay. So you rolled over and went to sleep?
             C.I.: Uh-huh, yes.
             Defense: And then it stopped?
             C.I.: Yes.

[¶25.]       Thus, during these exchanges, C.I. clarified that no penetration

occurred with regard to the act he asserted took place in the bedroom. As a

result, although this act could still be used as the basis for one of Brende’s

sexual contact convictions, it could not be used as the basis for Brende’s

second first-degree rape conviction because C.I. expressly stated that sexual

penetration did not occur.

[¶26.]       Next, we consider C.I.’s allegation that Brende made C.I. put his

penis in Brende’s butt while the two were in the living room. C.I. made this

allegation during the videotaped forensic interview, which was admitted as

substantive evidence and viewed by the jury at trial. Nevertheless, C.I.

explicitly recanted this allegation at trial during cross-examination. Brende’s

counsel asked C.I.: “Did [Brende] ever make you put your dick in his butt?”

C.I. responded: “No.” Brende’s counsel then asked C.I.: “Do you remember

telling [the forensic interviewer] that he made you put your dick in his butt?”

C.I. responded: “No.”
                                          -14-
#26455

[¶27.]       Under the circumstances of this case, we conclude that no

rational trier of fact could have found Brende guilty of first-degree rape

beyond a reasonable doubt based upon C.I.’s statements that Brende made

him put his penis in Brende’s butt, which C.I. alleged during the forensic

interview but then recanted at trial. First, at the time C.I. made these

statements during the forensic interview, he was not subject to cross-

examination, nor was he under oath. Next, as opposed to a situation in which

a witness qualifies prior statements or partially recants them, in this case

C.I. completely recanted his prior allegation that Brende made him put his

penis in Brende’s butt. C.I. also denied any recollection of making this

allegation. See State v. Robar, 601 A.2d 1376, 1379 (Vt. 1991) (recognizing

“the impediment to cross-examination . . . when the witness professes no

memory of the subject of the cross-examination”). Additionally, there was no

evidence that C.I. recanted this allegation due to intimidation or coercion, nor

was any other evidence presented that would have explained C.I.’s

recantation. See United States v. Bahe, 40 F. Supp. 2d 1302, 1310 (D.N.M.

1998) (“The central difficulty with basing a conviction on nothing more than

an out-of-court statement which has been recanted at trial is that the fact

finder has no logical basis for determining which statement is true[.]”); State

v. Pierce, 906 S.W.2d 729, 736 (Mo. Ct. App. 1995) (recognizing the danger of

allowing a conviction to be based solely upon a prior statement recanted at

trial, stating “[w]hen the trier of fact decides to believe a witness’ prior

statement rather than the in-court contradiction, that decision often is based


                                           -15-
#26455

solely on guess or intuition, not credible facts”). See also Stanley A. Goldman,

Guilt by Intuition: The Insufficiency of Prior Inconsistent Statements to

Convict, 65 N.C. L. Rev. 1, 38 (1986) (“[W]ithout a specific factual basis in the

record to justify believing the prior accusation over the present testimony, a

verdict based solely on the prior statement would be supported only by

suspicion, hunch, guess, or intuition . . . [which] does not satisfy due

process.”).

[¶28.]        Furthermore, as no evidence was presented to corroborate this

allegation, C.I.’s prior statements, recanted at trial, provided the only

substantive evidence that could have supported a first-degree rape conviction.

See United States v. Orrico, 599 F.2d 113, 118 (6th Cir. 1979) (recognizing the

difference between admissibility and sufficiency, and noting that in response

to concerns that adoption of Federal Rule of Evidence 801(d)(1)(A), which

would allow for the admission of prior inconsistent statements for

substantive value, might result in convictions based solely upon that

evidence, the Senate Committee stated: “[Rule 801(d)(1)(A)], however, is not

addressed to the question of the sufficiency of the evidence to send a case to

the jury, but merely as to its admissibility[,] [f]actual circumstances could

well arise where, if this were the sole evidence, dismissal would be

appropriate.”). Accordingly, even though the statements C.I. made during

the forensic interview pertaining to his allegation that Brende made him put

his penis in Brende’s butt were admitted as substantive evidence pursuant to

SDCL 19-16-38, we conclude that the recanted statements, standing alone,


                                          -16-
#26455

were insufficient to support a conviction against Brende for first-degree

rape. 9

[¶29.]          Finally, C.I.’s remaining allegation that Brende touched his

penis cannot be used as the basis for Brende’s second first-degree rape

conviction because no penetration was alleged with regard to this act.

Therefore, although there was sufficient evidence of penetration presented at

trial to support one of Brende’s convictions for first-degree rape, the evidence

presented at trial was insufficient to support Brende’s second conviction for

first-degree rape even when viewed in the light most favorable to the State.

As a result, Brende’s second conviction for first-degree rape is reversed.

[¶30.]          As a separate challenge to the sufficiency of the evidence, Brende

argues there was insufficient evidence that the crimes occurred during the time

period charged in the indictment (August 1, 2010, through November 30, 2010).

Thus, Brende asserts the evidence was insufficient to support his convictions for

sexual contact and first-degree rape. This Court has previously recognized that “[i]t

is not always possible to know when crimes involving sexual abuse of minors

occurred.” State v. Brim, 2010 S.D. 74, ¶ 8, 789 N.W.2d 80, 84 (citing Muhm, 2009

S.D. 100, ¶¶ 23, 26, 775 N.W.2d at 515-516). This is because “[c]hildren, especially

those who suffer traumatic events, cannot always remember precise times and



9.        We leave for another day the question of whether (and if so, when) a prior
          statement, recanted at trial, may be sufficient to support a conviction. See
          United States v. Bahe, 40 F. Supp. 2d 1302 (D.N.M. 1998); Commonwealth v.
          Brown, 52 A.3d 1139 (Pa. 2012); Stanley A. Goldman, Guilt by Intuition: The
          Insufficiency of Prior Inconsistent Statements to Convict, 65 N.C. L. Rev. 1
          (1986).

                                           -17-
#26455

dates.” Id. (quoting Swan, 2008 S.D. 58, ¶ 21, 753 N.W.2d at 423). Therefore,

“[a]lthough an indictment should be as specific as possible, time is not a material

element of crimes involving sexual abuse of minors.” Id. ¶ 9, 789 N.W.2d at 84

(citing Muhm, 2009 S.D. 100, ¶ 23, 775 N.W.2d at 515). Instead, this Court is

“lenient in child sexual abuse cases where there are differences between the dates

alleged in the indictment and those proven at trial” and “the fact that a crime was

committed on a date different from the one alleged in the indictment is not fatal to

the charge.” Id. Furthermore, “[u]nless the defendant demonstrates that he was

deprived of his defense because of a lack of specificity, this Court’s policy of leniency

governs.” Id. (quoting Swan, 2008 S.D. 58, ¶ 12, 753 N.W.2d at 421).

[¶31.]         During the dates charged in the indictment, C.I. was seven years old

and in second grade. Brende argues there was insufficient evidence that the crimes

occurred during the time period charged in the indictment because C.I. specifically

stated during his interview at Child’s Voice that he was six years old and in first

grade when the abuse occurred. 10 However, the forensic interviewer who conducted

C.I.’s interview at Child’s Voice on March 14, 2011, testified that C.I. had difficulty

with the concept of time and was unclear about when the abuse occurred.



10.      C.I. was also interviewed at Child’s Voice on May 25, 2010 (C.I. was seven
         years old and finishing first grade at the time) as a result of behavioral
         problems he was having at school and at home. During that interview, C.I.
         denied ever being touched inappropriately in a sexual manner. In addition to
         claiming that the dates in the indictment do not match C.I.’s claims as to
         when the abuse occurred, Brende asserts C.I.’s denial of ever being touched
         inappropriately while in first grade contradicts C.I.’s claim that Brende
         sexually abused him while he was in first grade, meaning that C.I.’s current
         allegation must be false.


                                          -18-
#26455

Furthermore, the State presented evidence at trial to support its allegation that the

sexual abuse occurred on or about August 1, 2010, through November 30, 2010. 11

[¶32.]         Regardless, the lack of a specific date of the abuse did not deprive

Brende of his defense in this case. Brende’s defense was a complete denial that the

sexual abuse ever occurred. In support of this defense, Brende attempted to

undermine C.I.’s credibility at trial by pointing out the inconsistencies in C.I.’s

allegations, C.I.’s emotional and behavioral problems, and C.I.’s inability to

precisely identify when the abuse occurred. Because the main issue in this case was

C.I.’s credibility, the lack of a precise date of the abuse was not a critical issue in

this case. See Brim, 2010 S.D. 74, ¶¶ 5-11, 789 N.W.2d at 83-85 (concluding the

trial court did not err in denying defendant’s motion for judgment of acquittal when

lack of precise dates of the abuse did not deprive the defendant of his defense, which

was a complete denial of any sexual acts occurring during the entire time period

covered by the indictment). As a result, this Court’s policy of leniency governs.


11.      During the end of C.I.’s forensic interview, the forensic interviewer and C.I.
         were discussing the fact that C.I. spent the night at Brende’s house on the
         night the sexual abuse occurred. The forensic interviewer then asked C.I. if
         there was ever a time when he did not spend the night at Brende’s home.
         Although it is unclear, C.I. appears to respond “the next time I go there, I
         think.” The State established that C.I. was supposed to spend the night at
         Brende’s on New Year’s Eve in 2010, but that he called to have his parents
         pick him up early that night. Thus, if C.I. did in fact say “next” in response
         to the forensic interviewer’s question, the sexual abuse would have occurred
         on the most recent occasion C.I. spent the night at Brende’s home, which
         C.I.’s father testified was in November 2010 (and Brende indicated was in
         August 2010). Additionally, there was evidence presented at trial indicating
         that Brende moved into the apartment where C.I. alleged the abuse occurred
         sometime during September or October 2010, when C.I. was in second grade.
         Thus, despite C.I.’s statement that the abuse occurred when he was in first
         grade, the abuse could not have occurred while C.I. was in first grade because
         Brende did not live in that apartment.

                                           -19-
#26455

Therefore, we reject Brende’s challenge to the sufficiency of the evidence on this

basis.

[¶33.]       3.     Whether the sentences imposed by the trial court violate
                    Brende’s Eighth Amendment right against cruel and
                    unusual punishment.

[¶34.]       “The Eighth Amendment of the United States Constitution, applicable

to the states through the Fourteenth Amendment, prohibits the infliction of ‘cruel

and unusual punishments.’” State v. Williams, 2006 S.D. 11, ¶ 12, 710 N.W.2d 427,

431; see also U.S. Const. amend. VIII. When a defendant asserts that his or her

sentence constitutes cruel and unusual punishment, we review the sentence for

proportionality:

             [W]e first determine whether the sentence appears grossly
             disproportionate. To accomplish this, we consider the conduct
             involved, and any relevant past conduct, with utmost deference
             to the Legislature and the sentencing court. If the sentence does
             not appear grossly disproportionate, no further review is
             necessary. If the sentence does appear grossly disproportionate,
             an intra- and inter-jurisdictional analysis shall be conducted.
             We also consider the gravity of the offense and the harshness of
             the penalty; and other relevant factors, such as the effect this
             type of offense has on society.

Williams, 2006 S.D. 11, ¶ 12, 710 N.W.2d at 432 (quoting State v. Guthmiller, 2003

S.D. 83, ¶ 43, 667 N.W.2d 295, 309) (internal citations and quotation marks

omitted). See generally Williams, 2006 S.D. 11, ¶ 12 n.2, 710 N.W.2d at 432 n.2

(clarifying the standard of review for Eighth Amendment challenges).

[¶35.]       On appeal, Brende asserts that his sentences are grossly

disproportionate to his offenses because the circumstances of his offenses do not

justify such harsh sentences. Therefore, Brende argues his sentences violate his

Eighth Amendment right against cruel and unusual punishment. In addressing

                                         -20-
#26455

Brende’s claim, we first consider the gravity of Brende’s offenses. Brende was

convicted of one count of first-degree rape and two counts of sexual contact with a

child under age sixteen (we do not consider Brende’s second first-degree rape

conviction due to our reversal of that conviction on appeal). At the time of the

abuse, C.I. was only 7 years old, whereas Brende was 53 years old. Additionally, in

committing the offenses, Brende took advantage of the relationship he had

established with both C.I. and C.I.’s parents. Furthermore, after committing the

offenses, Brende threatened C.I. in order to prevent C.I. from reporting the abuse.

[¶36.]         In support of his claim that his sentences are not justified by the

circumstances of his offenses, Brende notes there was no evidence that the sexual

acts caused C.I. physical trauma or pain. In addition, Brende points out that the

abuse occurred on a single occasion, and was not alleged to be ongoing. Further,

Brende emphasizes that he has a limited criminal history, which includes no

felonies or crimes against children, and asserts that he is less culpable for his

offenses because he suffers from intellectual impairments. 12

[¶37.]         However, despite Brende’s contentions, additional considerations

weigh in favor of the sentences imposed by the trial court. For example, in

emphasizing there was no evidence that the sexual acts caused C.I. physical trauma

or pain, Brende fails to recognize the emotional trauma C.I. suffered and will likely



12.      Brende had an IQ of 84, which is within the borderline intellectual
         functioning range, although his capabilities in verbal comprehension and
         attention were much lower than his overall score suggested. Brende dropped
         out of school at age 17, at which time he was only at an eighth or ninth grade
         level.


                                           -21-
#26455

continue to suffer as a result of the sexual abuse and Brende’s subsequent threats.

See State v. Bonner, 1998 S.D. 30, ¶ 27, 577 N.W.2d 575, 583 (recognizing that

“child victims of sex offenses often develop life-long emotional problems”). In

addition, Brende’s pre-sentence investigation report and psycho-sexual evaluation

revealed that Brende had a high risk for being untruthful, he engaged in strong

levels of denial and minimalization, and he was not likely to be a willing participant

in mental health counseling or sex-offender treatment. Brende’s psycho-sexual

evaluation also indicated that Brende was sexually interested in both grade-school

boys and girls, despite his denial of having any kind of sexual interests.

Furthermore, Brende never accepted responsibility for his actions.

[¶38.]         Next, in considering the harshness of Brende’s sentences, Brende’s

concurrent sentences of 50 years for his first-degree rape conviction and 15 years for

each of his sexual contact convictions were within the statutory maximums. 13

Nevertheless, citing to State v. Bruce, Brende asserts he should have received lesser

sentences because the circumstances of this case do not involve “the most serious

combination[ ] of the offense and the background of the offender.” 2011 S.D. 14, ¶

32, 796 N.W.2d 397, 407 (stating that “[w]hen . . . statutory ranges are established,

the legislative intent is that ‘the more serious commissions of the crime . . . deserve

sentences at the harsher end of the spectrum’” and that “the most severe sanctions


13.      The maximum sentence for first-degree rape under SDCL 22-22-1(1) is life
         imprisonment. The mandatory minimum sentence for a first-offense
         violation of SDCL 22-22-1(1) is 15 years. The maximum sentence for sexual
         contact with a child under age 16, in violation of SDCL 22-22-7, is 15 years.
         The mandatory minimum sentence for a first-offense violation of SDCL 22-
         22-7 if the victim is less than thirteen years of age is 10 years.


                                           -22-
#26455

[are intended to be reserved] for the most serious combinations of the offense and

the background of the offender”). However, the fact that the trial court sentenced

Brende to a total of 50 years (as all sentences were to run concurrently), which was

well within the maximum of life imprisonment, indicates that the trial court

recognized this case did not involve the most serious combination of offenses and

offender and that the trial court sentenced Brende accordingly. Ultimately, we

conclude that Brende’s sentences are not grossly disproportionate to his offenses.

As a result, no further review is necessary.

                                    CONCLUSION

[¶39.]       First, we reject Brende’s duplicity challenge because Brende cannot

establish that the trial court’s failure to strictly comply with the “either or rule”

constitutes plain error. Therefore, we affirm on this issue. Next, although there

was sufficient evidence to support both of Brende’s sexual contact convictions, the

evidence of sexual penetration presented at trial was only sufficient to support one

of Brende’s first-degree rape convictions, that being the first-degree rape conviction

based on C.I.’s oral sex allegation. As a result, we reverse Brende’s second

conviction for first-degree rape and remand to the trial court with instructions to

strike the 50-year sentence given for this conviction and to enter a judgment of

acquittal on this charge. Finally, Brende’s claim that his sentences violate his

Eighth Amendment right against cruel and unusual punishment is without merit

because Brende’s sentences are not grossly disproportionate to his offenses.

Accordingly, we affirm on this issue.

[¶40.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.


                                           -23-
