#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
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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 Voice1 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. 
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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. 
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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. 
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[¶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 crossexamination 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.
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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 
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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 . . .)
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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.” 
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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 
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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. 
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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 
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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 
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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 
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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.
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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.” 
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[¶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 crossexamination, 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 
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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,
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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).
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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. 
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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. 
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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
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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. 
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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.
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[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.