874 N.W.2d 493
S.D.2016Background
- Defendant Jeremias Hernandez was indicted on 12 felony counts: six counts of first‑degree child rape (SDCL 22‑22‑1(1)) and six counts of sexual contact with a minor (SDCL 22‑22‑7), with several counts using identical statutory language and overlapping timeframes.
- Counts 1–3 alleged rape of D.C. at the Garfield Apartments (Oct 2011–May 2012); counts 4–6 alleged rape of D.C. at Delta Place (May 2012–May 2013); remaining counts charged sexual contact of D.C. and L.C. during similar periods.
- Victim D.C. and a forensic interviewer (Child’s Voice) described multiple occasions of oral contact, digital penetration, penile contact with ejaculation, and forced masturbation; pediatrician testified such acts occurred and caused pain.
- Trial court instructed jurors to consider each count separately and require unanimity about the act supporting each count; Hernandez moved for judgment of acquittal (denied) and requested the State be required to elect specific acts for identically worded counts (denied).
- The jury convicted on all 12 counts; Hernandez appealed on grounds of venue insufficiency for Garfield Apartments incidents, insufficiency of evidence to support six separate penetrations, and multiplicity/fair‑notice/double jeopardy concerns from identically phrased counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hernandez) | Held |
|---|---|---|---|
| Venue for Garfield Apartments counts | V.C.’s testimony placed the events in Sioux Falls/Minnehaha County; venue properly alleged in indictment and not timely objected to | Insufficient proof events at Garfield Apartments occurred in Minnehaha County | Affirmed: venue established by V.C.’s testimony and defendant waived a pretrial venue challenge by not timely objecting |
| Sufficiency of evidence for six separate sexual penetrations | Testimony (D.C., forensic interviewer, pediatrician) described oral, digital, and penile intrusions occurring multiple times across both residences—sufficient for six penetrations | Evidence was insufficient to prove six distinct penetrations beyond reasonable doubt | Affirmed: viewed in light most favorable to prosecution, a rational jury could find six penetrations occurred (three at each residence) |
| Indictment fair notice (identical counts) | Statutory language, named victim, county, and date ranges provided adequate notice; Russell not controlling because statutes at issue differ | Identical statutory counts deprived Hernandez of fair notice and required the State to elect which acts supported each count | Affirmed: indictment was sufficient under South Dakota law and Sixth Amendment notice principles; no further specification required |
| Multiplicity / double jeopardy from duplicate counts | Legislature intended each act of penetration to be separate unit of prosecution; jury instructions required unanimity for acts supporting each count | Identically phrased counts could result in multiple punishments for the same act absent election or specification | Affirmed: counts not multiplicitous; record and jury instructions prevent double punishment and allow identification of acts to bar future prosecutions |
Key Cases Cited
- Russell v. United States, 369 U.S. 749 (1962) (indictment must provide notice of elements and enable defendant to plead former acquittal or conviction)
- State v. Brende, 835 N.W.2d 131 (S.D. 2013) (standard for sufficiency review)
- State v. Wurst, 436 N.W.2d 839 (S.D. 1989) (indictment following statutory language is generally sufficient)
- State v. Bingen, 326 N.W.2d 99 (S.D. 1982) (indictment must contain elements and fairly inform defendant; enable bar to future prosecutions)
- State v. Cates, 632 N.W.2d 28 (S.D. 2001) (each act of sexual penetration constitutes a separate offense)