#27308-a-DG

2016 S.D. 5

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JEREMIAS HERNANDEZ, Defendant and Appellant.

* * * *

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.

* * * * 

CONSIDERED ON BRIEFS ON 

NOVEMBER 30, 2015

OPINION FILED 01/27/16
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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. 
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[¶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.1 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 

 

1. At trial and contrary to the evidence, L.C. said that she did not know 

Hernandez. L.C.’s date of birth is April 4, 2004.
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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 
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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 must 

conclude unanimously which evidence applied to each particular count. 

[¶13.] During closing arguments, the prosecutor argued that counts one, two, 

and three were supported by D.C.’s testimony that Hernandez licked, touched, and 

placed his penis in D.C.’s vagina while they lived at the Garfield Apartments. The 

prosecutor pointed out that D.C. testified this conduct began when D.C. was nine. 

D.C.’s statements to Brazil also support a conclusion of penetration, the prosecutor 

urged. 

[¶14.] Next, the prosecutor argued that counts four, five, and six were 

supported by D.C.’s testimony that Hernandez licked and digitally penetrated D.C.’s 

vagina on multiple occasions while living at Delta Place—a period matching the 

timeframe delineated in the counts. Additionally, the prosecutor reiterated the jury 

instruction that required all jurors to consider the same act for each charge and to 

consider each charge separately. Nonetheless, the prosecutor argued that the 

evidence supports a finding of penetration for each count. 

[¶15.] For the counts charging sexual contact of D.C. while at the Garfield 

Apartments (counts seven and eight), the prosecutor directed the jury to D.C.’s 
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testimony that Hernandez licked and sucked on her breasts on multiple occasions, 

as well as Hernandez requiring D.C. to masturbate him. Again, the prosecutor told 

the jury that they must only consider Hernandez sucking on her breasts one time or 

the masturbation one time for each count. 

[¶16.] Likewise, for Counts 9 and 10, charging sexual contact with D.C. at 

Delta Place, the prosecutor directed the jury to testimony that Hernandez continued

to suck on D.C.’s breasts and Hernandez required her to masturbate him with her 

hands until ejaculation. Finally, the prosecutor argued that Counts 11 and 12, 

charging Hernandez with sexual contact of L.C., are supported by D.C.’s testimony 

that she observed Hernandez touching L.C.’s privates, tried to stick his private

parts in L.C.’s private parts, and was touching L.C.’s breasts.

[¶17.] The State and Hernandez delivered closing arguments and the court 

submitted the case to the jury. The jury returned a verdict of guilty on all twelve 

counts. Hernandez appeals, raising three issues: (1) whether the State introduced 

sufficient evidence to establish that the incidents alleged at the Garfield 

Apartments occurred in Minnehaha County; (2) whether the State introduced 

sufficient evidence to support six convictions of sexual penetration; and (3) whether 

multiplicity in the indictment violated Hernandez’s right to fair notice and 

protection against double jeopardy. 

Decision

1. Sufficiency of the evidence: Venue 

[¶18.] Hernandez argues that the State failed to introduce sufficient evidence 

that the incidents in the Garfield Apartments (Counts 1, 2, 3, 7, and 8) were 
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committed in Minnehaha County. After reviewing the record de novo, we disagree. 

See State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 764 (articulating the 

standard of review in sufficiency challenges).

[¶19.] “Where lack of proper venue is apparent on the face of an indictment, 

venue objections are waived if not made prior to trial. However, when an 

indictment contains a proper allegation of venue so that a defendant has no notice 

of a defect of venue until the government rests its case, the objection is timely if 

made at the close of the evidence.” State v. Haase, 446 N.W.2d 62, 65 (S.D. 1989) 

(quoting United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979)). Here, the 

State properly alleged venue in Minnehaha County on each of the counts in the 

indictment and Hernandez did not object to venue at the close of the State’s case in 

chief. Therefore, Hernandez waived venue, even if the Garfield Apartments were 

located in another county in South Dakota. 

[¶20.] Moreover, V.C.’s trial testimony supports a jury inference that the 

incidents at the Garfield Apartments occurred in Minnehaha County. See id. at 65-

66 (“On appeal, this [C]ourt accepts the evidence and the most favorable inferences 

that the jury might have fairly drawn therefrom to support the verdict.”). On direct 

examination, the prosecution questioned V.C. about her current Sioux Falls address 

at Delta Place; V.C.’s prior address at the Garfield Apartments on 12th Street; 

V.C.’s daughters; V.C.’s knowledge of the incidents; the defendant; the defendant’s 

involvement with V.C.’s daughters; V.C.’s interview at the Law Enforcement 

Center; and V.C.’s discussions with her daughter about the incidents. At the 

conclusion of V.C.’s direct testimony, the prosecutor asked, “And did all these things
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we talked about, did they happen in Sioux Falls?” V.C. responded, “Yes.” The 

prosecutor asked, “In Minnehaha County?” V.C. responded, “Yes.” Based on V.C.’s 

testimony alone, we conclude the State established by a preponderance of the 

evidence that Minnehaha County was the “county . . . in which the offense is alleged 

to have been committed.” S.D. Const. art. VI, § 7; SDCL 23A-16-3 (Rule 18); State v. 

Sullivan, 2002 S.D. 125, ¶ 7, 652 N.W.2d 786, 788 (delineating preponderance 

standard for venue).

2. Sufficiency of the evidence: sexual penetration

[¶21.] At the close of evidence, Hernandez asked the court to enter a 

judgment of acquittal. The court denied Hernandez’s request. Hernandez argues 

the court erred because the State failed to introduce sufficient evidence of six sexual 

penetrations to support Hernandez’s six convictions of child rape under SDCL 22-

22-1(1). We disagree. 

[¶22.] “Sexual penetration means an act, however slight, of sexual 

intercourse, cunnilingus [i.e., oral stimulation of vulva or clitoris], 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.” SDCL 22-22-2. Thus, 

our review turns on “whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found [six occurrences of any 

of the aforementioned acts] beyond a reasonable doubt.” See State v. Brende, 2013 

S.D. 56, ¶ 21, 835 N.W.2d 131, 140.2

 

2. Our review of whether the State introduced sufficient evidence to sustain a 

conviction is de novo. Brende, 2013 S.D. 56, ¶ 21, 835 N.W.2d at 140. 
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a. Sexual penetrations at the Garfield Apartments

[¶23.] Counts 1, 2, and 3 charged Hernandez with first-degree rape of D.C.

occurring between October 2011 and May 2012 in Minnehaha County during a time 

D.C. lived at the Garfield Apartments. 

[¶24.] D.C. testified that Hernandez put his hand on her “bottom part” 

multiple times in the master bedroom; Hernandez licked D.C. on her bottom part on 

multiple occasions; and that Hernandez tried to put his bottom part into D.C.’s 

bottom part on multiple occasions in both the master bedroom and D.C.’s bedroom,

resulting in Hernandez ejaculating onto D.C.

[¶25.] The Child’s Voice forensic interviewer, Brazil, testified that D.C. told 

her many things about incidents occurring at the Garfield Apartments. For 

instance, Brazil testified that D.C. said Hernandez touched D.C.’s vagina with his 

fingers on the inside and the outside, and that it did not feel good. D.C. told Brazil 

that Hernandez would try to put his penis into D.C.’s vaginal area and that 

Hernandez would move up and down until “white stuff would come out of his penis.” 

According to Brazil, D.C. said it hurt and it had happened many times. Brazil 

testified that D.C. also disclosed that Hernandez used his mouth to touch the inside 

of D.C.’s vaginal area. Further, Brazil testified that D.C. talked about most things 

happening in Hernandez’s room, but she also talked about one time where 

Hernandez’s penis was touching her vaginal area in D.C.’s bedroom.

[¶26.] Finally, the prosecutor urged the jury to convict Hernandez on each of 

the three separate counts based on the testimony that Hernandez (1) licked, (2) 
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touched, and (3) placed his penis in D.C.’s vagina while they lived at the Garfield 

Apartments. 

[¶27.] We find that, based on D.C.’s and Brazil’s testimony, a rational trier of 

fact could have found three occurrences of sexual penetration, however slight, 

beyond a reasonable doubt. After all, even slight oral stimulation of the vulva or 

clitoris is sufficient; likewise, “any intrusion, however slight, of any part of the body 

. . . into the genital . . . openings of [D.C.’s] body” is sufficient. SDCL 22-22-2. 

b. Sexual penetrations at Delta Place

[¶28.] Counts 4, 5, and 6 charged Hernandez with first-degree rape of D.C.

occurring between May 2012 and May 2013 in Minnehaha County during the time 

D.C. lived at Delta Place. 

[¶29.] D.C. testified that, after the move from the Garfield Apartments to 

Delta Place, Hernandez continued to place his hand on D.C.’s bottom part and he

licked D.C.’s bottom part on more than one occasion. 

[¶30.] Brazil also testified about the portion of her interview with D.C. that 

related to incidents occurring after the family moved from the Garfield Apartments 

to Delta Place. D.C. told Brazil that Hernandez touched D.C.’s vagina at Delta 

Place more than one time. Brazil also explained that children have difficulty listing

an exact number of times abuse occurs. Child’s Voice recorded Brazil’s interview of 

D.C. and the prosecutor played the recording for the jury.3

 

3. Brazil also testified that during her interview with D.C., D.C. stated that 

Hernandez’s mouth and fingers touched both the outside and inside of D.C.’s 

vagina. 
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[¶31.] Dr. Nancy Free was the pediatrician who initially examined D.C. Her 

testimony also buttresses the jury’s conclusion that the acts at both Garfield 

Apartments and Delta Place constituted sexual penetration. Dr. Free testified that 

D.C. talked about “things” hurting when Hernandez’s penis was inside. See State v. 

Toohey, 2012 S.D. 51, ¶ 26, 816 N.W.2d 120, 131 (finding evidence sufficient to 

uphold rape conviction where child victim indicated that defendant’s touch was in 

her pudendal area and that it caused her pain). Dr. Free also testified that based 

on her examination and interview, her expert opinion was that Hernandez forced 

multiple sexual acts upon D.C., including penal and digital penetration of D.C.’s 

vagina, at times forcing his penis to the point of ejaculation. She testified that 

Hernandez also had oral vaginal contact with D.C. 

[¶32.] Finally, the prosecutor urged the jury to find sexual penetration based 

on D.C.’s testimony that Hernandez continued to lick and digitally penetrate D.C.’s 

vagina on multiple occasions while living at Delta Place. The State’s theory was 

that the licking occurred more than once and the touching occurred more than once; 

therefore, there was a minimum of four possible incidents where the jury could find 

the three charged occurrences of sexual penetration. 

[¶33.] We find that, when viewing the evidence most favorably to the 

prosecution, a reasonable jury could have found beyond a reasonable doubt that the 

element of sexual penetration occurred three separate times at Delta Place.

3. Due Process and Double Jeopardy 

[¶34.] As mentioned, counts within the indictment contained identical 

language. See supra ¶¶ 3-7. Prior to trial, Hernandez asked the circuit court to 
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require the State to elect specific acts to attach to each count. The court denied 

Hernandez’s request. Hernandez argues that the court’s failure to require the State 

to elect specific acts for each count in the indictment denied him fair notice and the 

ability to defend against double jeopardy. 

a. Fair notice

[¶35.] Essentially, Hernandez contends the indictment was insufficient. 

Hernandez directs our attention to a rule articulated in Russell v. United States, a 

case in which the Supreme Court discussed the sufficiency of an indictment handed 

up from a grand jury pursuant to an accused’s Fifth Amendment right to indictment 

by grand jury in a federal criminal prosecution. 369 U.S. 749, 82 S. Ct. 1038, 8 

L. Ed. 2d 240 (1962). 

[¶36.] In Russell, the Supreme Court considered convictions “for refusing to 

answer certain questions when summoned before a congressional subcommittee.” 

Id. at 752, 82 S. Ct. at 1040. The Court determined that the indictments for such 

an offense must identify the subject under inquiry at the time of a defendant’s 

interrogation by the subcommittee because the conduct was criminal “only if the 

question which the witness refused to answer pertained to a subject then under 

investigation by the congressional body which summoned him.” Id. at 753-55, 82 S. 

Ct. at 1041. The Court discussed the “purposes and functions which a grand jury 

indictment is intended to serve” in the “administration of federal criminal law.” Id.

at 760, 82 S. Ct. at 1045. The Supreme Court prefaced its analysis by identifying 

the constitutional protections at issue: The Fifth Amendment requires the 

government to present the accused with an indictment by a grand jury for capital 
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and otherwise infamous crimes (including the case before the Supreme Court); and, 

the Sixth Amendment requires the government to inform an accused of “the nature 

and cause of the accusation.” Id. at 760-61. The Supreme Court cataloged its 

history of construing grand jury indictments, eventually leading to the enactment of 

the Federal Rule of Criminal Procedure 7(c) in 1946.4 The Supreme Court 

 

4. Today, Federal Rule of Criminal Procedure (7)(c)(1) is essentially the same as 

it was in 1946. Today the Rule states: 

The indictment or information must be a plain, concise, and 

definite written statement of the essential facts constituting the 

offense charged and must be signed by an attorney for the 

government. It need not contain a formal introduction or 

conclusion. A count may incorporate by reference an allegation 

made in another count. A count may allege that the means by 

which the defendant committed the offense are unknown or that 

the defendant committed it by one or more specified means. For 

each count, the indictment or information must give the official 

or customary citation of the statute, rule, regulation, or other 

provision of law that the defendant is alleged to have violated. 

For purposes of an indictment referred to in section 3282 of title 

18, United States Code, for which the identity of the defendant 

is unknown, it shall be sufficient for the indictment to describe 

the defendant as an individual whose name is unknown, but 

who has a particular DNA profile, as that term is defined in that 

section 3282.

Fed. R. Crim. P. 7 (c)(1)(footnote omitted). Likewise, South Dakota’s version 

of Rule (7)(c)(1) is substantively the same: 

The indictment or the information shall be a plain, concise, and

definite written statement of the essential facts constituting the 

offense charged. The information must be signed by the 

prosecuting attorney to be valid. It need not contain a formal 

commencement, a formal conclusion or any other matter not 

necessary to such statement.

Allegations made in one count may be incorporated by reference 

in another count. It may be alleged in a single count that the 

means by which the defendant committed the offense are 

unknown, but, if it is alleged that he committed it by more than 

one specified means, each means shall be stated in a separate 

count. 

 (continued . . .)
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determined that “[r]esolution of the issue presented in the cases before [it] thus 

ultimately depend[ed] upon the nature of the substantial safeguards to a criminal 

defendant which an indictment is designed to provide.” Russell, 369 U.S. at 763, 82 

S. Ct. at 1046. It concluded that the substantial safeguards are:

first, whether the indictment contains the elements “of the 

offense intended to be charged, and sufficiently apprises the 

defendant of what he must be prepared to meet, and,” secondly, 

“in case any other proceedings are taken against him for a 

similar offense whether the record shows with accuracy to what 

extent he may plead a former acquittal or conviction.”

Id. at 763-64, 82 S. Ct. at 1047 (quoting Cochran v. United States, 157 U.S. 286, 

290, 15 S. Ct. 628, 630, 39 L. Ed. 704 (1895)). Because the subject matter of the 

congressional committee hearings was “central to every prosecution” under the 

statute, the Supreme Court held that in order to provide fair notice, indictments 

under the statute in question required more than a recitation of the language of the 

statute. Id. at 771, 82 S. Ct. at 1051. 

[¶37.] Preliminarily, we acknowledge that the Fifth Amendment right to 

indictment by a grand jury is inapplicable in a state prosecution. See Hurtado v. 

California, 110 U.S. 516, 538, 4 S. Ct. 111, 122, 28 L. Ed. 232 (1884). However, to 

the extent an indictment informs the accused “of the nature and cause of the 

__________________________________

(. . . continued)

The indictment or information shall state for each count the 

official or customary citation of the statute, rule, regulation, or 

other provision of law which the defendant is alleged to have 

violated. Error in the citation or its omission shall not be ground 

for dismissal of the indictment or information or for reversal of a 

conviction if the error or omission did not mislead the defendant 

to his prejudice. 

SDCL 23A-6-4 (Rule 7(c)(1)). 
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accusation” as required under the Sixth Amendment, Russell’s discussion regarding 

the sufficiency of an indictment is informative. U.S. Const. amend VI; see Russell,

369 U.S. at 761, 82 S. Ct. at 1045. Consequently, we have since adopted a similar 

rule: “To be sufficient an indictment must (1) contain the elements of the offense 

charged and fairly inform the defendant of the charge against him, and (2) enable 

him to plead an acquittal of conviction in bar of future prosecutions for the same 

offense.” State v. Bingen, 326 N.W.2d 99, 100 (S.D. 1982) (citing Russell, 369 U.S. 

749, 82 S. Ct. 1038). Importantly, under both the federal rule and its South Dakota 

analog, an indictment or information is generally sufficient if it follows the language 

of the criminal statute. See, e.g., State v. Wurst, 436 N.W.2d 839, 843 (S.D. 1989); 

United States v. Resendiz-Ponce, 549 U.S. 102, 109, 127 S. Ct. 782, 789, 166 L. Ed. 

2d 591 (2007); cf. Russell, 369 U.S. at 771, 82 S. Ct. at 1051 (requiring more than 

the language of the statute because the subject matter of the congressional inquiry 

was “central to every prosecution” under that particular statute). 

[¶38.] Thus, using Russell as a guidepost, the question is whether the South 

Dakota statutes criminalizing child rape and sexual contact with a minor require 

more than a recitation of the language in the criminal statutes (similar to the 

statute in Russell); or, is a recitation of the language in the statute sufficient to 

provide fair notice. 

[¶39.] We hold the latter: The statutes that Hernandez was charged under 

are unlike the federal statute at issue in Russell, and therefore the indictment did 

not require a recitation beyond the statutory elements to provide sufficient notice. 

In Russell, there could be “criminality under the statute only if the question which 
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the witness refused to answer pertained to a subject then under investigation by the 

congressional body which summoned him.” Id. at 755, 82 S. Ct. at 1042. “A witness 

rightfully may refuse to answer where the questions asked are not pertinent to the 

matter under inquiry.” Id. Thus, if the indictment failed to state the subject 

matter, in addition to the elements of the statute, the defendant was left unaware of 

the criminal behavior alleged. Here, the indictment left Hernandez well aware of 

the criminal behavior alleged: six separate acts of sexual penetration (which is 

defined by statute, see SDCL 22-22-2); and six separate acts of sexual contact with a 

named minor. Hence, nothing more was needed in the indictment to “apprise 

[Hernandez] of what he must be prepared to meet.” Id. at 763, 82 S. Ct. at 1046.

[¶40.] We find that the indictment in Hernandez’s case was sufficient to 

provide fair notice to Hernandez of the crimes charged. Each count identified (1) 

the elements of the specific offense [rape or sexual contact], (2) the correlating

statute [SDCL 22-22-1 or SDCL 22-22-7], (3) the county of the offense [Minnehaha], 

(4) the victim of the offense [D.C. or L.C.], and (5) the period in which the alleged 

offense occurred. Furthermore, in addition to knowing that he must defend against, 

for instance, an allegation that he sexually penetrated D.C., a child under the age of 

thirteen in Minnehaha County between October 2011 and May 2012, Hernandez

may have had access to the grand jury transcript under SDCL 23A-5-16 (Rule 6(e))5

and he could have requested a bill of particulars.6

 

5. Disclosure of matters before the grand jury is allowed “if permitted by the 

court at the request of a defendant upon a showing that grounds may exist 

for a motion to dismiss an indictment because of matters occurring before a 

grand jury.” SDCL 23A-5-16 (Rule 6(e)).

 (continued . . .)
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b. Double jeopardy 

[¶41.] Nevertheless, Hernandez urges us to adopt a special rule when 

multiple counts charge the same statutory offense in an indictment. Hernandez 

contends that the State ought to be required to elect specific acts to coincide with 

each count in order to enable him to plead an acquittal of conviction in bar of future 

prosecutions for the same offense. Furthermore, Hernandez asserts that because 

the prosecution was not required to elect specific acts to coincide with each count in 

the indictment or coinciding jury instructions, the jury may have punished him 

twice for the same crime. Hernandez’s concern focuses on counts 4, 5, and 6 (the 

three alleged rapes of D.C. at Delta Place). 

[¶42.] The indictment was sufficient to “enable [Hernandez] to plead an 

acquittal of conviction in bar of future prosecutions for the same offense.” Bingen,

326 N.W.2d at 100. We addressed this question directly in Wurst, 436 N.W.2d 839. 

In addition to pleading to the entirety of the indictment, “[Hernandez] may proceed 

with proof, outside the [indictment] itself, to determine the charge which the 

conviction was based upon in order to raise a bar to subsequent prosecution.” Id. at 

843. We believe the indictment and the record in this case adequately protect 

Hernandez from a subsequent prosecution for the offenses for which the jury 

__________________________________

(. . . continued)

6. We recognize that, under the federal rule, a bill of particulars cannot save an 

invalid indictment. Russell, 369 U.S. at 770, 82 S. Ct. at 1050. However, the 

indictment in this case was not “invalid.”
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convicted him.7 The State may not subsequently prosecute Hernandez for firstdegree rape of D.C. in Minnehaha County during the period of October 2011–May 

2013 based on sexual penetration with Hernandez’s hands, mouth, or penis. 

Likewise, the State may not subsequently prosecute Hernandez for sexual contact 

with D.C. or L.C. in Minnehaha County occurring over the same period. 

[¶43.] Hernandez was not punished twice vis-à-vis his convictions on Counts 

4, 5, and 6 for a single crime. In closing, the prosecutor directed the jury’s attention 

to D.C.’s testimony that Hernandez no longer used his penis to penetrate D.C. at 

Delta Place, rather only his hands and mouth. Thus, unlike the child rapes at the 

Garfield Apartments where the jury was directed to consider Hernandez’s use of his 

penis for one count, his mouth for one count, and his hands for one count; at Delta 

Place, the jury was directed to consider the testimony that Hernandez used his 

mouth more than once and his hands more than once. Accordingly, the evidence 

supported Hernandez’s conviction of one child rape by sexual penetration with the 

mouth while at Delta Place; one conviction of child rape by sexual penetration with 

the hand at Delta Place; and one conviction of child rape by sexual penetration with 

the hand or mouth at Delta Place since a showing was made that each type of act 

 

7. Indeed, SDCL 23A-6-4 (Rule 7(c)(1)) expressly authorizes indictments where 

the means is unknown, much less not specifically identified: “It may be 

alleged in a single count that the means by which the defendant committed 

the offense are unknown, but, if it is alleged that he committed it by more 

than one specified means, each means shall be stated in a separate count.” 

See also Fed. R. Crim. P. 7. (same).
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occurred twice or more. The prosecutor was thereby asking the jury to find three 

criminal acts from four or more alleged acts.8

[¶44.] Hernandez mistakenly argues this amounted to a multiplicitous 

indictment, thereby violating the Double Jeopardy Clause. Multiplicity “is the 

splintering of a single offense into separate counts in an indictment.” State v. 

Muhm, 2009 S.D. 100, ¶ 19, 775 N.W.2d 508, 514. “[W]hen an indictment includes 

more than one count charging the same statutory violation, ‘the question is whether 

[the Legislature] intended the facts underlying each count to make up a separate 

unit of prosecution.’” United States v. Emly, 747 F.3d 974, 977 (8th Cir. 2014) 

(quoting United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)).9 Clearly, the 

Legislature intended each act of sexual penetration to constitute a separate unit of 

prosecution; thus, Counts 4, 5, and 6 were not multiplicitous. See State v. Cates, 

 

8. We note that any claim of the duplicitous nature of State’s prosecution was 

cured by jury instruction 24, instructing the jury that the jury must 

unanimously find that the defendant was guilty with respect to at least one of 

the charges in the duplicitous count: 

The defendant is accused in counts one through six of the 

indictment with six separate acts of Rape in the First Degree. 

Each count is intended to refer to a separate act of the defendant 

in committing that crime. Each count must be considered 

separately. Before the jury may find the defendant guilty on 

any one count of Rape in the First Degree, all jurors must be 

convinced beyond a reasonable doubt that the defendant is 

guilty of that count. 

9. Legal multiplicity occurs when a defendant is convicted under two different 

statutes for what the Legislature intended to be a single conviction. See, e.g., 

Ball v. United States, 470 U.S. 856, 862, 105 S. Ct. 1668, 1672, 84 L. Ed. 2d 

740 (1985) (deciding that without specific congressional intent, defendant 

could not be convicted under two statutes—receiving a firearm and 

possessing a firearm). Factual multiplicity, on the other hand, deals with 

determining a unit of prosecution under a single statute. See Martin, 2003 

S.D. 153, ¶ 39, 674 N.W. 2d 291, 303; Emly, 747 F.3d at 977.
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2001 S.D. 99, ¶ 9, 632 N.W.2d 28, 33 (“Each act of sexual penetration constitutes a 

separate offense.”) Indeed, the State has broad discretion to conduct criminal 

prosecutions, including its power to select the charges to be brought in a particular 

case. 

[¶45.] In conclusion, we affirm Hernandez’s conviction on all twelve counts. 

First, the evidence introduced at trial was sufficient to establish that the crimes at 

the Garfield Apartments occurred in Minnehaha County. Second, the evidence 

introduced at trial was sufficient for the jury to infer six criminal acts of sexual 

penetration of a child under thirteen. Finally, the indictment provided adequate 

notice to Hernandez, and the record and indictment provide Hernandez with 

adequate information to plead his convictions if the State were to indict him again. 

Furthermore, the record does not support a finding that the jury punished 

Hernandez twice for one crime. 

[¶46.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.