{1} The State appeals from the trial court’s order dismissing five counts of a ten-count indictment against Defendant. This case raises the question of whether an indictment that divides an alleged course of criminal conduct into separate factually indistinguishable counts comports with due process. We conclude that in this case it does not, and that an indictment that lists a series of identical counts may fail to provide a defendant with adequate notice of the charges against him or to protect him from double jeopardy if the counts cannot be linked to particular, distinguishable criminal acts. Accordingly, we affirm the trial court’s order dismissing' five counts of the indictment against Defendant that could not be tied to individual, factually distinguishable incidents of alleged misconduct.
BACKGROUND
{2} On May 30, 2003, the State filed a grand jury indictment against Defendant, charging him with committing, over approximately a ten-week pеriod, ten counts of criminal sexual contact of a minor under the age of thirteen, contrary to NMSA 1978, § 30-9-13(A)(1) (2001) (amended 2003). All ten counts were the same, and each read as follows:
[0]n or between August 25, 2002 and October 31, 2002, in Santa Fe County, New Mexico, the above-named Defendant did unlawfully and intentionally touch оr apply force to the intimate parts of [the victim], and [the victim] was a child under thirteen (13) years of age, contrary to NMSA 1978, Section 30-9-13A(l) [sic].
Nothing in the indictment provided any information that would distinguish one count from any other count.
{3} Defendant moved to dismiss the indictment as violative of his right to due procеss under the United States Constitution, or, in the alternative, to compel the State to name specific instances of the alleged abuse, or, in the alternative, to permit Defendant to submit an instruction to the jury that would require jury members to unanimously find that he committed a particular act at a sрecific place and time in order for them to find him guilty on any of the counts. Defendant argued (1) that the indictment provided inadequate notice of the charged offenses and therefore interfered with his right to defend himself; (2) that the indictment risked placing him in double jeopardy since it was unclear whаt offenses he was being charged with and, as a result, he might later be charged again for the same offenses; and (3) that in the absence of a proper jury instruction, there ran the risk that some members of the jury might find him guilty of some offenses and other jury members might find him guilty of other offenses, without a unanimous verdict as tо any single offense.
{4} The State filed a bill of particulars in an effort to justify the ten counts in the indictment. While the bill of particulars did provide information regarding some specific incidents, (e.g., “[The victim] remembers an incident where he was touched on a day that [his friend] had brought a camera to schоol to try to photograph [Defendant during the touching.”), 'much of what was contained in the bill of particulars did not describe individual events, and instead referred to an alleged course of ongoing conduct, (e.g., “[The victim] said [the touching] happened at least several times every week of еvery month during his 5th grade year.” (emphasis in original)). The attorneys for both the State and Defendant interviewed the victim, who was not able to describe any incidents other than those included in the bill of particulars. After reviewing the bill of particulars, the trial court concluded that the State had provided Dеfendant with notice of the facts and circumstances as to five alleged incidents including: (1) an incident that occurred around mid-October of the victim’s 5th grade year, (2) an incident that occurred following an injury at football practice in the late summer before the victim’s 6th grade year, (3) an incidеnt that occurred a month before the victim’s birthday in his 6th grade year, (4) an incident that occurred a month before the victim informed his friend’s sister of his accusations
DISCUSSION
{5} “We analyze the dismissal of criminal charges on due process grounds under a de novo standard, deferring to the district court’s findings of fact when they are supported by substantial evidence.” State v. Hill,
{6} The State argues that the trial court erred in dismissing counts six through ten because “the information contained in [the] bill of particulars taken together with the charges set forth in the indictment, sufficiently notified [Defendant that he was accused of committing crimes against the [victim] in [D]efendant’s [6th] grade classroom between August 25, 2002, and October 31, 2002.” Relying on Baldonado,
{7} In dismissing thе five counts, the trial court relied on Valentine, in which the Sixth Circuit held that multiple, undifferentiated charges in an indictment violated the defendant’s due process right to notice and his due process right to an indictment that protects him from double jeopardy.
{8} The Sixth Circuit held that the indictment violated the defendant’s due process right to adequate notice of the charges against him because:
within each set of 20 counts [for child rape and felonious sexual penetration, respectively], there are absolutely no distinctions made.... In its charges and in its evidence before the jury, the prosecution did not attempt to lay out the factual bases of forty sepаrate incidents that took place. Instead, the 8-year-old victim describedtypical’ abusive behavior by [the defendant] and then testified that the ‘typical’ abuse occurred twenty or fifteen times.
Id. at 632-33. The indictment provided the defendant with “little ability to defend himself’ since the counts were not anchored to particular offenses. Id. at 633. The court noted that it would have been impossible for the jury to conclude that the defendant was guilty of some of the offenses, but not others; a finding that the defendant was guilty as to “Counts 1, 3, 5 and 7, but not the rest ... would be unintelligible, because the criminal counts were not сonnected to distinguishable incidents. The jury could have found him ‘not guilty 1 of some of the counts only if they reached the conclusion that the child victim had overestimated the number of abusive acts.” Id.
{9} The Sixth Circuit concluded that the indictment also violated the defendant’s right to due process since it presented two potential double jeopardy problems. First, the indictment was not sufficiently specific to permit the defendant to plead a conviction or an acquittal as a bar to future prosecutions, and second, “the undifferentiated counts introduced the very real possibility that [the defendant] would be subject to double jeopardy in his initial trial by being punished multiple times for what may have been the same offense.” Id. at 634-35.
{10} We agree with the trial court that in this case, as in Valentine, the charges in the indictment provided sufficient notice and protected Defendant from double jеopardy only insofar as the State was able to describe separate incidents in the bill of particulars. Therefore, the trial court properly dismissed those five counts that could not be linked to a particular incident of abuse. This Court has recognized that the failure to describe the offenses in an indictment with some particularity violates due process where there are allegations that several similar incidents took place and the defendant cannot tell from the charging document which events he is being prosecuted for. See State v. Foster,
{12} The State proposes another ground for reversal. It argues that the trial court erred in dismissing five of the counts based on the trial court’s mistaken belief that the ten charges were alleged to have occurred over a period of two years, rather than a period of ten weeks. Wе do not agree that this mistake on the trial court’s part requires reversal. First, the State’s argument appears to misunderstand the basis of the trial court’s ruling, which was not related to the length of the charging period, and was based instead on the lack of any distinguishing characteristics among the counts. Bеcause the trial court’s mistake as to the length of the charging period would not have affected its analysis regarding the sufficiency of the indictment, we will not reverse the trial court on that basis. See Specter v. Specter,
{13} Second, any factual misunderstanding the trial court may have had regarding the charging period was invited by the State when the State submitted a bill of particulars that included events covering a two-year period. We will not allow the State to invite errоr and then to complain of it. Cf. State v. Young,
CONCLUSION
{14} We conclude that the trial court properly dismissed those counts of the indictment that could not be linked to individual incidents of abuse. Accordingly, we affirm.
{15} IT IS SO ORDERED.
Notes
. Because these events span both the victim's 5th and 6th grade years, some of them must necessarily fall outside of the ten-week period alleged in the indictment. However, Defendant has not challenged this aspect of the trial court’s ruling, and we do not address any possible error the trial court may have made in relying on these five incidents as the basis for the five counts in the indictment.