State v. Brende, 2013 SD 56

Brende was convicted at a jury trial of two counts of first-degree rape and two counts of sexual contact with a child under 16; sentences were 50 years for each rape and 15 years for each sexual-contact count, all run concurrently.
Alleged abuse occurred when the victim was seven years old, during a period August 2010–November 2010, with Brende in a caregiver-like role.
A Child’s Voice forensic interview and a subsequent video were admitted as substantive evidence; the interview described multiple acts but some details conflicted with trial testimony.
Trial testimony described several acts, including Brende allegedly forcing penetration in different locations and touching the victim’s penis, with inconsistencies between forensic interview statements and in-court testimony.
Brende challenged the indictment as duplicitous, challenged sufficiency of evidence for penetration, and argued sentences violated the Eighth Amendment; the court addressed all issues on appeal.
The Supreme Court affirmed some aspects, reversed one rape conviction due to lack of sufficient penetration evidence, and remanded to strike the 50-year sentence on that count; it also rejected the Eighth Amendment claim as not aberrant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duplicity and unanimity of jury verdict	Brende argues the duplicitous counts violated unanimity rights	Brende contends no election or instruction ensured unanimity	Plain error not established; unanimity effectively informed in closing
Sufficiency of evidence for penetration in first-degree rape	State claimed four acts could support four convictions	Evidence insufficient for some penetrative acts	Sufficient for one rape conviction (oral sex); second rape conviction reversed for lack of penetration evidence
Sufficiency of evidence for timing of offenses	Indictment dates should match actual abuse period	Date variance permissible in child-sex cases	Not fatal; leniency applied; dates not dispositive
Eighth Amendment proportionality of sentences	Punishment overly harsh for single-act abuse of a child	Sentences within statutory maximums and warranted by circumstances	Not grossly disproportionate; sentences affirmed overall

State v. Muhm, 2009 SD 100 (2009) (duplicitous indictment and unanimity concerns in single-act offenses)
State v. Bowker, 2008 SD 61 (2008) (plain error review when trial preserved neither election nor unanimity instruction)
State v. Olvera, 2012 SD 84 (2012) (plain error requires substantial rights impact; unanimity instruction adequate here)
State v. Swan, 2008 SD 58 (2008) (leniency in child sexual abuse cases for non-specific dates)
State v. Brim, 2010 SD 74 (2010) (time not a material element in child sexual abuse; date variance tolerated)
Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency review: rational jury could find guilt beyond a reasonable doubt)