State v. Muhm

#24681-a-SLZ

2009 SD 100

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

THOMAS MUHM, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOHN J. DELANEY
Judge

* * * *

MARTY J. JACKLEY
Attorney General

MEGHAN N. DILGES
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

TIMOTHY J. RENSCH
Rensch Law Office Attorneys for defendant
Rapid City, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MAY 26, 2009

OPINION FILED 11/18/09
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ZINTER, Justice

[¶1.] Thomas Muhm was convicted of all five counts in an indictment

alleging: one count of attempted first degree rape, one count of first degree rape,

two counts of sexual contact with a child under sixteen, and one count of criminal

pedophilia. The charges arose from allegations of weekly sexual abuse of two boys

over several years. Muhm appeals arguing that: (1) the counts were multiplicitous

and duplicitous in violation of due process and double jeopardy concerns; (2) the

State failed to give notice of a report and the opinions of an expert witness; and, (3)

the circuit court erred in failing to grant a new trial on the ground of newly

discovered evidence. We affirm.

Facts and Procedural History

[¶2.] J.C. and C.S. regularly spent weekends with Muhm, a family friend at

the time. C.S. began spending weekends at Muhm’s home when C.S. was seven or

eight years-old, and J.C. began spending weekends when he was six or seven. The

State alleged that Muhm repeatedly sexually abused the boys during these weekend

visits.

[¶3.] The alleged abuse came to light in January 2006. The boys’ mother

testified that she had taken them to the doctor because J.C. had a rash on his foot

and he had complained of a rash on his penis. After returning home, C.S. told his

mother that he knew why there was a rash on J.C.’s penis. C.S. stated that Muhm

had been sucking J.C.’s penis and making J.C. do things he did not want to do. C.S.

also told his mother that Muhm put his penis in the boys’ “butts” and then made

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them do the same to Muhm. After receiving similar information from J.C., the boys’

mother called the police.

[¶4.] On February 2, 2006, the boys were interviewed by Lora Hawkins, a

child forensic interviewer. During separate videotaped interviews, the boys

disclosed further details of abuse. J.C., the younger brother, indicated that Muhm

started touching J.C. when he was about seven, and the last time it had happened

was about a week-and-a-half prior to the interview. J.C. said Muhm would put his

hands on J.C.’s “pee-pee,” and Muhm would put his “pee-pee” on J.C.’s “butt.” J.C.

also stated Muhm tried to put his “pee-pee” in J.C.’s “pooh hole,” but Muhm’s penis

never “went in.” J.C. indicated this happened more than once. J.C. also disclosed

having to “jack off” Muhm, and Muhm doing the same thing to J.C. J.C. could not,

however, describe what he meant by “jack off.” J.C. finally disclosed having to lick

chocolate syrup from Muhm’s “pee-pee” and Muhm sucking on J.C.’s penis. J.C.

denied ever having to do anything with Muhm’s “pooh hole.” J.C. told Hawkins that

these things happened many times and that these things also happened to C.S. He

also informed Hawkins that his stepbrother, S.R., was in prison for doing these

same types of things to a neighbor. When Hawkins asked J.C. if S.R. had ever done

something “icky to him,” J.C. responded, “No.”

[¶5.] C.S. similarly indicated that Muhm had been touching both C.S.’s and

J.C.’s “privates.” When asked what he meant by “privates,” C.S. said “penis and

butt.” C.S. told Hawkins that Muhm would suck and rub C.S.’s penis. He indicated

Muhm would put chocolate syrup on his own penis and make the boys lick it. C.S.

also indicated that Muhm would put lubricants on his penis and on C.S.’s buttocks

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and then stick his penis inside C.S.’s “butt.” He said this happened around thirty

times. C.S. also told Hawkins that Muhm would make C.S. put his penis in Muhm’s

“butt,” and that this occurred twenty times. C.S. said that the “bad stuff” always

occurred on the couch in Muhm’s living room. C.S. said he observed Muhm doing

these things to J.C. and no one else had touched C.S.’s body in a similar manner.

[¶6.] After the interviews, a deputy sheriff contacted Muhm. During a forty-

five minute non-custodial interview, Muhm denied any molestation of the boys, said

that he did not understand why the boys would make such allegations, and

indicated that he loved the boys like they were his own children.

[¶7.] In March 2006, the boys testified in front of a grand jury. Additional

details and some inconsistencies arose in comparison with their interviews with

Hawkins. Nevertheless, the general pattern of weekly sexual abuse over several

years remained the same. 1

1. J.C. told the grand jury Muhm touched J.C. in the “pee-pee” and “pooh hole”
when he was nine, and that Muhm would “jack him off.” According to J.C.,
this happened more than five times. J.C. still could not explain or describe
“jacking off.” J.C. indicated Muhm would touch J.C.’s “butt,” rub J.C.’s “butt
cheeks,” and put his penis inside J.C.’s “butt.” He said this happened more
than five times. J.C. said he sucked Muhm’s penis every weekend night he
went to Muhm’s house. J.C. also testified that Muhm did not have J.C. put
his “pee-pee” in Muhm’s “butt.”

C.S. testified Muhm sucked his penis, C.S. never sucked Muhm’s penis, and
Muhm had anal sex with C.S. three times. C.S. explained that the first few
times, Muhm was not able to accomplish penetration, but eventually Muhm
was able to get his penis in C.S.’s “butt.” C.S. also testified that Muhm
wanted C.S. to put his penis in Muhm’s “butt,” but C.S. refused. C.S. further
testified about “’jacking off” with Muhm, and that the last time something
happened was the last time he was at Muhm’s. Finally, C.S. testified that he
saw Muhm sucking J.C.’s penis.

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[¶8.] On March 16, 2006, Muhm was indicted on thirty-seven counts

involving the two boys and four different statutory offenses. The charges were

grouped within five categories. The first three categories charged repeated

violations of three different statutory offenses involving J.C. occurring over two and

one-half years. The last two categories charged repeated acts of two statutory

offenses involving C.S. occurring over more than five years. Counts within each

category were identical and undifferentiated; i.e., they charged the same statutory

offense with the same boy and did not allege specific times and places of the acts.

The counts within these categories charged:

 Counts 1-2: three acts of Attempted First Degree Rape of
J.C. between July 12, 2003 and January 31, 2006;

 Counts 3-7: five acts of First Degree Rape of J.C. between
July 12, 2003 and January 31, 2006;

 Counts 8-17: nine acts of Sexual Contact With a Child Under
Sixteen (J.C.) between July 12, 2003 and January 31, 2006;

 Counts 18-27: nine acts of Sexual Contact With a Child
Under Sixteen (C.S.) between October 23, 2000 and January
31, 2006; and

 Counts 28-37: nine acts of Criminal Pedophilia with C.S.
between October 23, 2000 and January 31, 2006.

[¶9.] Muhm moved for a bill of particulars. After the State filed a bill of

particulars, Muhm moved to dismiss the indictment on the grounds of multiplicity

and duplicity of counts. In this motion, Muhm requested that the State be required

to elect one count from each of the five categories for trial. The State agreed to the

request, and the case proceeded to trial on only one count of each category of offense

(counts 1, 3, 8, 18, and 28).

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[¶10.] Three pretrial motions are relevant to this appeal. First, the State

moved to introduce other crimes, wrongs, or acts under SDCL 19-12-5 (Rule 404(b)).

The circuit court ruled that the State could not introduce the other acts identified in

the State’s notice. That ruling did not prohibit evidence of the repeated acts of

alleged misconduct that had been charged in the dismissed counts. Second, in

response to a defense motion, the court entered a discovery order requiring the

State to provide the defense a list of the State’s experts, including their reports and

opinions. The third motion was filed on the first day of trial. Muhm moved to

require the State to elect a particular act that the State would use to prove each

count and to exclude evidence of the other repetitive sexual acts. This motion was

denied.

[¶11.] At the time of trial, C.S. was twelve-years-old and J.C. was ten. The

boys again described weekly sexual abuse occurring over the time periods alleged.

And, as occurred in the grand jury proceedings, additional inconsistencies arose in

their testimony. 2

2. For example, at trial, C.S. testified he put his penis in Muhm’s “butt” every
time he was with him, as opposed to his grand jury testimony that he never
put his penis in Muhm’s “butt.” C.S. also testified he sucked Muhm’s penis
many times, but at the grand jury he testified that he never sucked Muhm’s
penis. Finally, C.S. testified Muhm had anal sex with him every other day he
was at Muhm’s, yet at the grand jury he testified it happened only three
times.

J.C. testified Muhm “raped” him and Muhm’s penis went inside J.C. “four or
five” times, but J.C. told Hawkins that Muhm’s penis never went inside his
“poophole.” As opposed to his pretrial statements, J.C. testified he never had
to suck chocolate syrup from Muhm’s penis. J.C. also testified he had to put
his penis in Muhm’s anus, whereas before trial he had stated “that never
(continued . . .)
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[¶12.] The State called Dr. Leslie Fiferman, a psychologist, to testify about

the traits of sexually abused children. Although the State had provided notice that

Dr. Fiferman would testify and had identified the topics he would address, no

further detail or report were provided. Therefore, immediately prior to Dr.

Fiferman’s testimony, the defense moved to exclude the testimony on the ground

that no report or disclosure of his opinions had been made. The circuit court

indicated that the State violated the discovery order, but allowed Dr. Fiferman’s

testimony.

[¶13.] The jury returned a verdict of guilty on all five counts. Muhm

subsequently moved for a new trial, alleging a multiplicitous and duplicitous

indictment that violated due process and double jeopardy protections. Muhm also

alleged a discovery violation arising from Fiferman’s testimony. While the motion

was pending, the State produced a report concerning the children’s stepbrother, S.R.

In that report, S.R. admitted to molesting C.S. Muhm thereafter submitted a

second new trial motion based on this newly discovered evidence. All motions were

denied.

Decision

I. Whether Muhm was Denied Constitutional Protections by the Circuit
Court’s Denial of his Motion to Require the State to Elect One Specific Act
as the Sole Basis for Each Count.

[¶14.] As previously mentioned, before trial, the thirty-seven counts of the

____________________
(. . . continued)
happened.” As to “jacking off,” J.C. stated before trial that this happened
eight or nine million times, whereas at trial he could not remember one time.

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indictment were reduced to five. Each surviving count alleged a different sexual act

involving either J.C. or C.S. Because the children alleged that each type of sexual

act occurred repeatedly, Muhm moved to require State to elect one particular act as

the sole basis for each count and to exclude evidence of the repetitive acts involving

that same sexual offense. Muhm argued that without limiting the State’s proof to

one predetermined act for each count, the State would have multiple acts available

to prove each count. Muhm contended that without an election, the indictment was

multiplicitous and duplicitous depriving him of due process and the protections

provided by the Double Jeopardy Clause.

[¶15.] The State responded that it would be unable to proceed with the

prosecution if an election were required. The State explained that because of the

young ages of the children and the repetitive nature of the alleged abuse over such a

lengthy period of time, it would not be possible to make such an election before trial.

The prosecutor explained:

There is no way for me to know sitting here today what those
two boys are going to say when they take that stand. They are
so young and so damaged. This abuse went on for so long.
There is not going to be any way I can specify one particular act
of rape when they were raped every weekend for four years. I
can’t do it. They can’t do it.

[¶16.] The circuit court denied the motion recognizing the repetitive nature of

the allegations and the difficulty a young child would have recounting any

particular act. 3 The court also indicated that the defense had taken contradictory

3. The California Supreme Court recognized that “it would be impossible for the
prosecutor to select a specific act he relies on to prove the charge” in this type
of case where a child is only able to recount a generic pattern of repeated
(continued . . .)
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positions by first requesting a dismissal of the multiple counts charging each

repeated act; and then, after having obtained the State’s agreement to dismiss the

multiple counts, seeking to restrict the State from relying on the repeated acts to

prove its case.

[¶17.] On appeal, Muhm argues that the counts were multiplicitous and

duplicitous. He further points out that the children testified “in vague fashion”

(they did not differentiate between every repeated act within each category).

Therefore, he argues that one or more acts, or even different acts, could have been

the basis for the guilty verdict on each count. Muhm contends that this method of

charging and proof deprived him of due process and the constitutional protection

against double jeopardy.

[¶18.] We begin our analysis by discussing multiplicity, duplicity, and the

related constitutional concerns. Whether an indictment is multiplicitous or

duplicitous is a question of law reviewed de novo. United States v. Roy, 408 F3d

484, 491 (8thCir 2005); United States v. Damrah, 412 F3d 618, 622 (6thCir 2005).

[¶19.] “‘Duplicity’ is the joining in a single count of two or more distinct and

separate offenses. . . . Multiplicity, on the other hand, is the splintering of a single

offense into separate counts in an indictment.” 1 Nancy Hollander et al., Wharton’s

Criminal Procedure § 5:12 (14th ed. 2008). In other words, a duplicitous indictment

or information includes a single count that captures multiple offenses, whereas a

____________________
(. . . continued)
sexual abuse. People v. Jones, 51 Cal3d 294, 308, 792 P2d 643, 650 (1990)
(citation omitted).

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multiplicitous indictment or information includes multiple counts all charging a

single offense.

[¶20.] Muhm argues both multiplicity and duplicity. However, after the

State dismissed all but five counts, the surviving counts were not multiplicitous:

each surviving count alleged a different offense involving a different child. On the

other hand, the surviving counts were duplicitous. Each count potentially captured

repetitive offenses involving the same child. Because Muhm’s indictment did not

involve multiplicity, 4 we limit our discussion to duplicity and its related double

jeopardy and due process concerns.

A. Double Jeopardy

[¶21.] “One vice of duplicity is that a general verdict for a defendant on that

count does not reveal whether the jury found him not guilty of one crime or not

guilty of [all potential crimes covered by the count]. Conceivably, this could

prejudice the defendant in protecting himself against double jeopardy.” United

States v. Starks, 515 F2d 112, 116 (3rdCir 1975). The numerous acts of criminal

conduct falling within a duplicitous count, together with generalized allegations of

proof, may not, in some cases, prevent a second prosecution from being brought

4. Muhm’s reliance on Valentine v. Konteh, 395 F3d 626 (6thCir 2005) is
misplaced. Unlike Muhm’s case, Valentine did involve multiplicity. The
defendant was charged with twenty “carbon copy” counts of only two offenses.
Id. at 628. Furthermore, the district court’s convictions on one count of each
offense were affirmed because the prosecutor presented substantial evidence
“of ongoing abuse, . . . [so that] had the case been tried in 2 counts [those]
convictions would clearly stand.” Id. at 637 (emphasis added).

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against a defendant. That risk occurs if it is unclear exactly which crimes were

considered in the first trial. See id.

[¶22.] This double jeopardy concern is not, however, implicated in this case.

Concededly, the language of each of the five counts is not tied to a specific time and

place. Therefore, each count was broad enough to allow a jury to have considered

different sexual acts as the basis for its verdict on each count. Nevertheless, each

count did allege that the sexual offense occurred with a specific victim during a

period of time. Further, the entire record provides context from which we can

conclude that the State would be barred from re-prosecuting on the same or lesser

included offenses involving the same children during that period of time.

[¶23.] As noted in a slightly different situation in State v. Basker, 468 NW2d

413, 417 (SD 1991), a nonspecific charge, conceivably involving multiple acts of

child sexual abuse occurring over a lengthy period of time, does not violate double

jeopardy if the defendant cannot be recharged for sexual offenses occurring within

that period. Although “an information should be as specific as possible with respect

to time, [we noted that] it is not always possible to know with certainty when an

offense occurred. This is especially true in sexual molestation cases involving a

minor victim who does not immediately complain to authorities.” Id. Consequently,

we examined non-specific charges involving repeated sexual abuse occurring over

several years in the context of the allegations and defenses actually at issue. When

considered in that context, we concluded “the indictment adequately apprised

[defendant] of the accusations against him such that he could . . . plead any

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judgment of conviction founded upon the indictment as a bar to any subsequent

prosecution.” Id. The same is true in Muhm’s case.

[¶24.] Considering the allegations and defenses actually presented in this

case, Muhm could not be prosecuted again for the same or lesser-included sexual

offenses involving these children during the periods of time alleged. The original

indictment, bill of particulars, and discovery revealed that the allegations involved

weekly sexual acts involving two children and four statutory offenses. Muhm’s

defense was a complete denial of any sexual act occurring during the entire period

of time covered by the indictment. Muhm asserted that there was never any sexual

misconduct, that he could not understand why the children would make such

allegations, and that the children were not credible. Therefore, all acts of sexual

abuse involving the four statutes and two children were at issue at trial, and any

further prosecution involving these children during this time period for these or

lesser included offenses would be barred. See id. See also State v. Lafferty, 2006

SD 50, ¶ 13, 716 NW2d 782, 786 (noting that “[b]oth the United States Constitution

and the South Dakota Constitution protect [the defendant] from such relitigation.”).

For that reason, the duplicitous counts did not violate Muhm’s rights under the

Double Jeopardy Clause.

B. Due Process

1. Notice and opportunity to prepare a defense.

[¶25.] Muhm argues that the duplicitous indictment violated his due process

right to the notice necessary to prepare and present an adequate defense. The

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California Supreme Court described these rights in a similar case involving

repetitive, undifferentiated allegations of sexual abuse.

The “preeminent” due process principle is that one accused of a
crime must be “informed of the nature and cause of the
accusation.” Due process of law requires that an accused be
advised of the charges against him so that he has a reasonable
opportunity to prepare and present his defense and not be taken
by surprise by evidence offered at his trial. Thus, the right to
defend has two related components, namely, the right to notice
of the charges, and the right to present a defense to those
charges.

Jones, 51 Cal3d at 317, 792 P2d at 656 (citations omitted).

[¶26.] We have considered these due process rights in a case involving

improper sexual contact with a minor occurring over a long period of time. See

Basker, 468 NW2d at 416. We first observed that a generally phrased indictment

alleging repeated sexual contact with a minor over a lengthy period of time is not

insufficient.

For an indictment to be sufficient, it must contain the elements
of the offense charged such that it apprises the defendant with
reasonable certainty of the accusations against him . . . . When
time is not a material element of the offense charged, the
indictment need not allege the precise time at which the offense
was committed.

Id. (citations omitted). Because “time is not a material element of the offense” in

crimes involving sexual abuse of minors, State v. Nuzum, 2006 SD 89, ¶ 18, 723

NW2d 555, 559, Muhm’s indictment was sufficient.

[¶27.] Further, considering the entire record, our conclusion in Basker

regarding notice and presentation of an adequate defense is applicable here: we do

not “believe the lack of specific dates of the alleged sexual misconduct prohibited

[defendant] from asserting [a defense].” 468 NW2d at 417. As the California

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Supreme Court explained: “So long as the evidence presented at the preliminary

hearing supports the number of offenses charged against defendant and covers the

time frame[s] charged in the information, a defendant has all the notice the

Constitution requires.” Jones, 51 Cal3d at 312, 792 P2d at 653. We see no reason

why the same rule should not apply when pretrial notice is furnished through a

grand jury transcript or through “pretrial discovery procedures.” See id. at 320, 792

P2d at 657 (observing that in light of modern trial practice, including the right of

cross-examination, “generic child molestation charges by no means deprive the

defendant of a reasonable opportunity to defend”).

[¶28.] Muhm, however, argues that J.C. and C.S. testified in a “vague

fashion,” thereby making it impossible to effectively defend. This argument has not

been accepted in child sex abuse cases involving similar vague, generic testimony:

[T]he defendant’s due process rights are implicated by the
inability of his young accuser to give specific details regarding
the time, place and circumstances of various alleged assaults.
Frequently, as here, these cases involve the so-called “resident
child molester” who . . . has continuous access to him[.] In such
cases, the victim typically testifies to repeated acts of
molestation occurring over a substantial period of time but,
lacking any meaningful point of reference, is unable to furnish
many specific details, dates or distinguishing characteristics as
to individual acts or assaults.

Although the cases are widely conflicting, some courts have
concluded that prosecutions based on such nonspecific or
“generic” testimony deprive the defendant of due process by
preventing him from effectively defending against such charges,
and by precluding a unanimous jury verdict as to each act
charged in the information. Yet testimony describing a series of
essentially indistinguishable acts of molestation is frequently
the only testimony forthcoming from the victim. To hold that
such testimony, however credible and substantial, is inadequate
to support molestation charges would anomalously favor the
offender who subjects his victim to repeated or continuous

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assaults.

Id. at 299-300, 792 P2d at 645. In such cases, more specificity is simply impossible:

Multiple sex offenses committed by adults upon immature and
inarticulate children over a long period of time are very likely to
result in an amalgamation of the crimes in the child’s mind.
The child is unlikely to be able to give any testimony
approximating the date of any one separately describable offense
even in the uncomplicated case. Where the number of offenses
is so numerous even an adult would not be able to count them,
the child’s testimony will often be reduced to a general, and
customarily abbreviated, recitation of what happened on a
continuing basis.

Id. at 313, 792 P2d at 653-54 (citation omitted). Thus, like the court in Jones, we

conclude that considering the totality of the record (including the bill of particulars,

grand jury transcript and pretrial discovery disclosing the specifics of the children’s

allegations), any duplicitous counts did not deprive Muhm of his due process rights

to notice and the opportunity to prepare an adequate defense.

2. Jury Unanimity

[¶29.] Another 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. See United States v. Garcia, 400 F3d 816, 819 (9thCir 2005);

United States v. Davis, 306 F3d 398, 415 (6thCir 2002); United States. v. Karam, 37

F3d 1280, 1286 (8thCir 1994); Jones, 51 Cal3d at 316, 792 P2d at 656. In some

situations, a general verdict may not reveal whether the jury unanimously found

the defendant guilty of one offense or more offenses, or guilty of one offense and not

guilty of others. United States v. Crisci, 273 F3d 235, 239 (2ndCir 2001).

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[¶30.] This concern is of even more significance in cases like this where

Muhm was charged with “single act” offenses.5 In such cases, 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. In other words, even though due process may not

require time specificity in charging such cases, the jury must have been in

agreement as to a single occurrence or the multiple occurrences underlying each

count. And, for single act offenses, jury unanimity is not achieved if some of the

jurors believed the crime occurred on one occasion during the timeframe and others

believed that the crime occurred on a different occasion. Cooksey v. State, 359 Md

1, 9, 752 A2d 606, 610 (2000).

[¶31.] Muhm argues that his right to jury unanimity was violated because of

the general verdict, the duplicitous counts, the long time frames of alleged abuse,

and the boys’ generic testimony of repeated, undifferentiated acts. Muhm contends

that under these circumstances, it is impossible to determine whether the jury

5. Rape (or attempted rape) is a “single act” offense. See SDCL 22-22-1 (“Rape
is an act of sexual penetration accomplished with any person under any of
the following circumstances. . .”). Sexual contact with a child under sixteen is
a single act offense. See SDCL 22-22-7, and 7.1 (the former statute provides:
“Any person, sixteen years of age or older, who knowingly engages in sexual
contact with another person . . . if the other person is under the age of sixteen
years is guilty of a Class 3 felony.” The latter statute defines as a “sexual
contact” as “any touching, not amounting to rape, whether or not through
clothing or other covering, of the breasts of a female or the genitalia or anus
of any person with the intent to arouse or gratify the sexual desire of either
party”). Criminal pedophilia is a single act offense. See SDCL 22-22-30.1
(2004) (“Criminal pedophilia is any act of sexual penetration accomplished
with a victim less than thirteen years of age by any person twenty-six years
of age or older.”).

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reached a unanimous decision on the particular act that was the basis for the

conviction on each count.

The Either or Rule: Election or a Jury Unanimity Instruction

[¶32.] State and federal courts have adopted procedures that balance the

need to prosecute cases involving repetitive acts charged in a single count with

defendants’ rights to due process and the assurance of jury unanimity. Although

some cases have required a prosecution election of specific acts, others have

resolved the issue with the use of curative jury instructions.6 The most commonly

6. In Cooksey, supra, the Maryland Court of Appeals cataloged a number of
ways States have approached the issue.

Several States have dealt, in one context or another, with
whether, and under what circumstances, separate single-act
sexual offenses committed over an extended period can combine
to support a single conviction, under a continuing course of
conduct or continuing offense theory. Many of those cases did
not involve the specific issues raised here, of whether a count
attempting to charge one offense consisting of disparate offenses
committed over a significant period of time is dismissible for
duplicity. Some . . . concerned the specificity of the indictment –
the lack of specific dates – rather than whether a count was
duplicitous. Others, reaching the appellate court after trial and
conviction, dealt not so much with the validity of the indictment
as with whether, when the State alleges a single offense
committed during a particular time period but offers evidence of
multiple incidents occurring during that period, any of which
might suffice to establish the offense, it must elect, either at the
beginning or at the end of the case, which incident it intends to
proceed upon and the court must then instruct that the verdict
must be unanimous as to that incident.

359 Md at 17-18, 752 A2d at 615 (citations omitted). Although Cooksey
discusses a number of ways States have considered this issue, Cooksey’s
conclusion misinterprets California law. Cooksey relies on the rationale of
People v. Van Hoek, 200 CalApp3d 811, 246 CalRptr 352 (1988), which Jones
specifically overruled. See, Jones, 51 Cal3d at 322, 792 P2d 659. We
(continued . . .)
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followed procedure has been described as the either or rule. See Jones, 51 Cal3d at

307, 792 P2d at 649. The 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. See 1A Charles A. Wright, Andrew D. Leipold, Federal Practice and

Procedure § 145 (citing United States v. Savoires, 430 F3d 376 (6thCir 2005);

United States v. Hughes, 310 F3d 557, 560 (7thCir 2002); United States v. Ramirez-

Martinez, 273 F3d 903, 915 (9thCir 2001); United States v. Shumpert Hood, 210

F3d 660, 663 (6thCir 2000); United States v. Karam, 37 F3d 1280, 1286 (8thCir

1994); United States v. Robinson, 651 F2d 1188, 1194 (6thCir 1981); United States

v. Robinson, 651 F2d 1188, 1194 (6thCir 1981); United States v. Henry, 504 F2d

1335, 1338 (10thCir 1974); Franklin v. United States, 330 F2d 205, 207 (DC Cir

1964)).

[¶33.] Application of the either or rule is well described in Jones, 51 Cal3d at

307, 792 P2d at 649. Where 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

____________________
(. . . continued)
reference Cooksey only to identify and catalog the issues, not to reflect our
support of its rationale or conclusions.

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given. Id. at 321, 792 P2d at 658-59. Where, however, the testimony of the victim

recounts undifferentiated or generic occurrences of the sexual act, a modified

unanimity jury instruction must be given because:

[A]lthough a prosecutorial election or unanimity instruction can
help focus the jury on the same specific act where evidence of
several distinct acts has been elicited, nonetheless neither an
election nor a unanimity instruction is very helpful where the
victim is unable to distinguish between a series of acts, any one
of which could constitute the charged offense. In a case
consisting only of “generic” evidence of repeated sex acts, it
would be impossible for the prosecutor to select a specific act he
relies on to prove the charge, or for the jury to unanimously
agree the defendant committed the same specific act.

Id. at 308, 792 P2d at 650. Therefore, “when there is no reasonable likelihood of

juror disagreement as to particular acts, and the only question is whether or not the

defendant in fact committed all of them, the jury should be given a modified

unanimity instruction which, in addition to allowing a conviction if the jurors

unanimously agree on specific acts, also allows a conviction if the jury unanimously

agrees the defendant committed all the acts described by the victim.” Id. at 322,

792 P2d at 659. 7 In this latter situation, because credibility is usually the “true

7. The Jones court cautioned that, even under the modified either or rule:

The victim . . . must describe the kind of act or acts committed
with sufficient specificity, both to assure that unlawful conduct
indeed has occurred and to differentiate between the various
types of proscribed conduct (e.g., lewd conduct, intercourse, oral
copulation or sodomy). Moreover, the victim must describe the
number of acts committed with sufficient certainty to support
each of the counts alleged in the information or indictment (e.g.,
“twice a month” or “every time we went camping”). Finally, the
victim must be able to describe the general time period in which
these acts occurred (e.g., “the summer before my fourth grade,”
or, “during each Sunday morning after he came to live with us”).
(continued . . .)
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issue” -- “the jury either will believe the child’s testimony that the consistent,

repetitive pattern of acts occurred or disbelieve it.” Id. “In either event, a

defendant will have his unanimous jury verdict and the prosecution will have

proven beyond a reasonable doubt that the defendant committed a specific act, for if

the jury believes the defendant committed all the acts it necessarily believes he

committed each specific act.” Id. at 321, 792 P2d at 659. We agree with the either

or approach. 8

____________________
(. . . continued)

51 Cal3d at 316, 792 P2d at 655. The court explained:

[I]f the victim testified that an act of oral copulation occurred
once each month for the first three months of 1990, and the
[State] charge[d] three counts of molestation, the jury’s
unanimous conclusion that these three acts took place would
satisfy the constitutional requirement of unanimity.

Similarly, if an information charged two counts of lewd conduct
during a particular time period, the child victim testified that
such conduct took place three times during that same period,
and the jury believed that testimony in toto, its difficulty in
differentiating between the various acts should not preclude a
conviction of the two counts charged, so long as there is no
possibility of jury disagreement regarding the defendant’s
commission of any of these acts.

Id. at 321, 792 P2d at 658.

8. The California jury unanimity instruction, entitled “When Proof Must Show
Specific Act or Acts Within Time Alleged,” provides:

Defendant is accused [in Count[s] ] of having committed the
crime of _____, a violation of section ____ of the Penal Code, on
or about a period of time between ____ and ____.
In order to find the defendant guilty, it is necessary for the
prosecution to prove beyond a reasonable doubt the commission
(continued . . .)
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[¶34.] In this case, the counts were duplicitous and the children’s evidence

was vague and generic in that it described numerous undifferentiated acts

occurring every weekend. Further, no prosecutorial election was made and there

was no instruction requiring jury unanimity instruction on a specific act.

Nevertheless, “harmless error” analysis is applied in such cases. As Jones

recognized, harmless error applies in cases when the trial court fails “either to

select specific offenses or give a unanimity instruction” if “the record indicate[s] the

jury resolved the basic credibility dispute against defendant and would have

convicted the defendant of any of the various offenses shown by the evidence to have

____________________
(. . . continued)
of [a specific act [or acts] constituting that crime] [all of the acts
described by the alleged victim] within the period alleged.
And, in order to find the defendant guilty, you must
unanimously agree upon the commission of [the same specific
act [or acts] constituting the crime] [all of the acts described by
the alleged victim] within the period alleged.
It is not necessary that the particular act or acts committed so
agreed upon be stated in the verdict.

CA CALJIC 4.71.5. The explanatory note to this instruction explains:

Where the information charges an act or series of acts within a
specified period and the prosecution has not elected to rely upon
any specific date or dates, and the alleged criminal activity does
not come within the continuous course of conduct exception, use
this instruction[.]

In a case in which the jurors might disagree as to the particular
act defendant committed, use the first bracketed phrase. When
there is no reasonable likelihood of juror disagreement as to
particular acts, and the only question is whether or not the
defendant committed all of them, use the second bracketed
phrase and delete the first.

CA CALJIC 4.71.5.

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been committed.” See Jones, 51 Cal3d at 307, 792 P2d at 650 (citing People v.

Moore, 211 CalApp3d 1400, 1415-16, 260 CalRptr 134 (1989); People v. Winkle, 206

CalApp3d 822, 828-830, 253 CalRptr 726 (1988); People v. Schultz, 192 CalApp3d

535, 539-540, 237 CalRptr 513 (1987); People v. Deletto, 147 CalApp3d 458, 466,

470-73, and n10, 195 CalRptr 233 (1983)).

[¶35.] South Dakota has adopted the harmless error rule.

SDCL 23A-44-14 defines harmless error as “[a]ny error, defect,
irregularity or variance which does not affect substantial
rights[.]” The harmless error rule governs even constitutional
violations, not requiring the automatic reversal of a conviction,
provided the court is able to declare a belief beyond a reasonable
doubt that the error was harmless and did not contribute to the
verdict obtained.

State v. Michalek, 407 NW2d 815, 819 (SD 1987) (citations omitted). Like the

California examples cited above, in this case no alibi evidence was presented and

the only issue was the credibility of the child witnesses. The only defense was to

undermine the boys’ credibility through various means, including pointing out

inconsistencies in their statements, their smoking and alcohol use, and a number of

other subjects. As the defense stated in closing arguments, “[w]hat this case is

about is whether or not these kids will lie about [Muhm] and make stuff up about

him.” Therefore, “in essence the trial involved a question of credibility, and the

jury’s verdict necessarily implied that it believed the victim[s].” See Jones, 51 Cal3d

at 308, 792 P2d at 650. Ultimately, “the jury resolved the basic credibility dispute

against defendant and would have convicted the defendant of any of the various

offenses shown by the evidence to have been committed.” See id. at 307, 792 P2d at

649. We therefore believe beyond a reasonable doubt that any error in failing to

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#24681

require an election of acts or giving an appropriate instruction 9 was harmless and

did not contribute to the verdict obtained. As the California Supreme Court

observed:

[T]he defendant never suggested he relied on an alibi defense,
and accordingly he could not claim prejudice in defending
against the charges. . . . [T]he primary issue in these cases is
not alibi or identification, but the credibility of accuser and
accused. Requiring the [State] to plead and prove specific acts of
molestation would result in prosecuting only those defendants
who select victims with good memories, or who commit the
fewest acts.

Jones, 51 Cal3d at 313, 792 P2d at 653 (citation omitted). We agree.

[¶36.] For the foregoing reasons, we conclude that the duplicitous counts

neither deprived Muhm of due process nor subjected him to the prohibition against

double jeopardy. Muhm’s duplicity arguments fail.

II. Whether the Circuit Court Erred in Allowing Expert Testimony.

[¶37.] Muhm argues that the State violated the discovery order by not

providing Dr. Fiferman’s specific opinions before trial. Our “standard of review for

the violation of a discovery order mirrors the standard applied when reviewing both

mistrial motions and evidentiary issues.” State v. Reay, 2009 SD 10, ¶ 39, 762

NW2d 356, 367-68 (citation omitted). “[This Court] presume[s] the evidentiary

rulings made by a trial court are correct, and review[s] those rulings under an abuse

of discretion standard.” State v. Krebs, 2006 SD 43, ¶ 19, 714 NW2d 91, 99.

Further, if a discovery order is violated, we still must determine “whether the

9. Although the circuit court did not give a unanimity instruction, Muhm did
not propose one.

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#24681

defendant suffered any material prejudice as a result[.]” Reay, 2009 SD 10, ¶ 39,

762 NW2d at 368. “Material prejudice is established ‘when in all probability . . . it

produced some effect upon the final result and affected rights of the party assigning

it.’” Id. (citation omitted).

[¶38.] The circuit court’s discovery order required the State to provide the

defense with “[a] complete listing, designation, and identification of any and all

experts the prosecution intends to offer during its case in chief, as well as a

complete listing, designation, summary, and identification of each and every expert

opinion which will be offered in the case in chief, or which is exculpatory or

inculpatory in any way.” (Emphasis added.) The State provided notice that Dr.

Fiferman would give testimony on topics relating to the traits of sexually abused

children. The notice stated:

The State will offer testimony regarding the delayed reporting of
assaults of children along with the trauma and psychological
effects of a child who has been sexually assaulted. Dr. Fiferman
will also testify as to the behavior of children who have been
assaulted and the mannerisms in which children display
adverse affects [sic] to such traumas. Dr. Fiferman will discuss
how grooming works to discourage reporting and enhances the
relationships between the perpetrator and the child victim.
Further, his testimony will be regarding how children
communicate to others when they have been assaulted and what
difficulties there are in having children describe or discuss being
sexually assaulted.

The State provided no report or written document providing further specifics of Dr.

Fiferman’s topics or whether his testimony might include opinions.

[¶39.] Before Dr. Fiferman testified, Muhm moved to prevent his testimony

because the State had not provided more specifics. The State responded that there

was no discovery violation as it had provided notice regarding the topics Dr.

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#24681

Fiferman would be addressing. The State also pointed out that Dr. Fiferman

prepared no report because he had never interviewed the boys. The circuit court

found that the State did not comply with the discovery order, but it allowed Dr.

Fiferman to testify.

[¶40.] On appeal, the State argues that even if there was a technical violation

of the discovery order, the violation did not prejudice Muhm. The State points out

that its notice outlined the topics of Dr. Fiferman’s testimony. The notice

specifically indicated that Dr. Fiferman would testify to the fact that children delay

reporting because of grooming and have difficulty describing or discussing the abuse

they have suffered. Muhm responds that he was prejudiced “by not knowing what

[Dr. Fiferman’s] opinions and testimonial substance were prior to hearing them for

the first time in the courtroom.” Therefore, Muhm contends that he “could not

compare the expert opinions with literature on the topics and consider such in

connection with the cross-examination.” Considering the notice and actual

testimony given, we conclude that Muhm was not prejudiced. 10

[¶41.] Muhm acknowledges that Dr. Fiferman’s testimony consisted of

generalities, including such things as how Dr. Fiferman had dealt with both

perpetrators and victims, what “grooming” was, examples of grooming behaviors,

and how children can act. Muhm also acknowledges that “Dr. Fiferman . . . testified

10. Muhm does not argue that Dr. Fiferman usurped the function of the jury by
testifying that the boys were actually abused. Nor does Muhm argue that Dr.
Fiferman opined whether he thought Muhm was guilty. Notwithstanding
repeal of the ultimate issue rule, “[o]pinions merely telling a jury what result
to reach are impermissible as intrusive.” See State v. Guthrie, 2001 SD 61, ¶
33, 627 NW2d 401, 415.

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#24681

in rambling fashion using examples from his own experience with clients about how

the grooming process works between molesters and children, how children say

different things at different times, delayed reporting, and how they will still go

someplace where they are being molested.”

[¶42.] This acknowledgment and our review of Dr. Fiferman’s testimony

reveal that his testimony essentially related only to the general topics included in

the State’s notice. Dr. Fiferman did not provide any testimony regarding J.C., C.S.,

or Muhm. Furthermore, considering the pretrial allegations and the notice given,

Muhm could not have been surprised as to how Dr. Fiferman would testify on these

topics. Because Dr. Fiferman’s testimony was limited to a general discussion of the

disclosed topics, and because this disclosure provided Muhm with the opportunity to

retain experts on the same topics, we agree that Muhm has failed to show that “in

all probability,” Dr. Fiferman’s testimony affected his substantial rights and the

outcome of the trial. 11 See Reay, 2009 SD 10, ¶ 39, 762 NW2d at 368. Therefore,

even if the circuit court erred in admitting the testimony, it was not reversible

error.

11. We also note that Muhm’s witnesses from the Department of Social Services
(DSS) provided evidence very similar to that provided by Dr. Fiferman. The
DSS witnesses testified that in their experience, it was not uncommon for
children to be inconsistent, or fail to report the fact that they were being
sexually abused. They further testified that a child often denies being
sexually abused even though the social worker later discovers that the child
was being abused. Because this testimony from other witnesses is quite
similar to Dr. Fiferman’s testimony, we see no prejudicial effect. Contrast,
Krebs, 2006 SD 43, ¶¶ 20-21, 714 NW2d at 99 (finding prejudice in the State’s
violation of a discovery order because the State’s witness’s testimony “was the
only testimony suggesting that [defendant’s] injuries were self-inflicted”).

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#24681

III. Whether the Circuit Court Erred in Denying a New Trial.

[¶43.] Muhm finally argues that the circuit court should have granted a new

trial because of newly discovered evidence. We review a circuit court’s denial of a

motion for a new trial under SDCL 23A-29-1, the same as its civil counterpart

SDCL 15-6-59(b). “Whether a new trial should be granted is left to the sound

judicial discretion of the trial court, and this Court will not disturb the trial court’s

decision absent a clear showing of abuse of discretion.” State v. Gehm, 1999 SD 82,

¶ 12, 600 NW2d 535, 539. For a new trial to be granted, Muhm must demonstrate:

“(1) the evidence was undiscovered by the movant at the time of trial; (2) the

evidence is material, not merely cumulative or impeaching; (3) that it would

probably produce an acquittal; and (4) that no lack of diligence caused the movant

to fail to discover the evidence earlier.” Id. ¶ 13, 600 NW2d at 540.

[¶44.] In this case, we find that the evidence was merely cumulative and

impeaching, and there is no probability it would have produced an acquittal. The

newly-discovered evidence was the post-trial disclosure of the seventeen year-old

stepbrother, S.R., who admitted to his therapist to repeatedly sexually molesting

C.S. in the presence of Muhm and J.C. S.R. also admitted watching pornographic

movies on the couch in his mother’s home.

[¶45.] Muhm argues that S.R.’s statement that there were pornographic

movies in his mother’s home contradicts the mother’s testimony that there was no

pornography in her home. Muhm contends that if the boys watched pornography in

their mother’s home, it could have provided a basis for the boys’ detailed knowledge

of sexual abuse. Muhm also argues that S.R.’s admission of molesting C.S. needed

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to be “explored” in order to corroborate Muhm’s claim that the boys’ allegations

baffled him. Muhm finally argues that S.R. was 6’2” and 300 pounds, and the jury

should have been able to see him, listen to his testimony, and view his demeanor on

the stand “in order to determine his place in the whole scheme of things.” Although

these arguments establish that it may have been useful to “explore” S.R. as a

possible witness, they do not establish a probability that the evidence would have

resulted in an acquittal.

[¶46.] Furthermore, as the circuit court correctly noted, the evidence was a

“doubled-edged sword” that may have hurt more than helped the defense. The court

observed that “the contradictions would probably [not] have resulted in a not guilty

verdict, particularly in light of the damning portions of the evidence.” This

observation was based on S.R.’s disclosure that in addition to abusing one of the

boys, he had been a victim of Muhm’s abuse and a witness to Muhm’s abuse of the

boys. The evidence was also cumulative and impeaching because, as the circuit

court noted, the defense had already done a “first-rate job of pointing out

inconsistencies in the children’s testimony during the course of the trial.” Under

these circumstances, we conclude that the court did not abuse its discretion in

denying a new trial.

[¶47.] Affirmed.

[¶48.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.

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