State v. Hoffman, 15884
| Decision Date | 24 May 1988 |
| Docket Number | No. 15884,15884 |
| Citation | 430 N.W.2d 910 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Glenn HOFFMAN, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Roger A. Tellinghuisen, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.
Randolph F. Stiles, Mitchell, for defendant and appellant.
Appellant Glenn Hoffman (Hoffman) was indicted by a Sanborn County grand jury on seven counts of abuse to minors. (SDCL 26-10-1) Counts I through IV alleged specific acts of abuse while Counts V through VII charged that Hoffman tormented three of his stepchildren. Hoffman was tried before a Sanborn County jury and convicted of Counts I through VI. Hoffman was sentenced to 18 months in the state penitentiary on each count, to be served concurrently. In his appeal Hoffman complains that the evidence was insufficient to support his conviction and that SDCL 26-10-1 is unconstitutionally vague.
This case arose from facts which took place during the period from March through June 1986 between Hoffman and his wife's two minor children, Daniel and Loran. Testimony of the children at trial was inconsistent with that of their mother and Hoffman but it generally indicated many instances of abuse. On one occasion, Hoffman struck Daniel's head against a truck several times. On another occasion Hoffman struck Daniel in the face with his fist. The testimony revealed that Hoffman struck Loran on the head with some type of bar or rod, leaving a bruise, and an incident in which Hoffman pulled hair out of Loran's head. There was also evidence of other abuse to Daniel and Loran.
Hoffman argues the evidence adduced at trial was insufficient to convict him, particularly with respect to Counts V and VI, which charge torment as opposed to the other counts which charge specific acts of abuse. Hoffman's position is that the acts of abuse toward Daniel in Counts I and II are based upon the same set of facts as is the charge of torment in Count V. Likewise, he urges that Counts III and IV, charging specific acts of abuse toward Loran, are based upon the same set of facts as the torment charge in Count VI. SDCL 26-10-1 provides, "Any person who abuses, exposes, tortures, torments or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony."
Each of the counts upon which Hoffman was convicted is based on this single statute. Counts V and VI do not charge specific acts of abuse, yet purport to represent two separate counts. The jury was not instructed that in order to find Hoffman guilty on these two counts, it must rely on facts separate from those considered in determining innocence or guilt on the other four counts. The failure to so instruct results in Hoffman being twice placed in jeopardy. The Fifth Amendment to the United States Constitution provides in pertinent part: "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb...." The South Dakota Constitution also protects this right and provides in Article VI, Sec. 9: "No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy on the same offense."
The "same offense" test as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) is the test adopted in South Dakota in determining whether the threat of double jeopardy exists. State v. Pickering, 88 S.D. 548, 225 N.W.2d 98 (1975). The rationale of the "same offense" test is particularly applicable here, since Hoffman was charged with separate counts of abuse and torment upon the same child, yet no specific acts of torment are cited. Blockburger reasoned that while a single act may be an offense against two statutes, two offenses may be said to have occurred only if each statute requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 183, 76...
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State v. Garza
...may be said to have occurred only if each statute requires proof of an additional fact which the other does not.” State v. Hoffman, 430 N.W.2d 910, 911 (S.D.1988). See also Johnson, 2007 S.D. 86, ¶ 16, 739 N.W.2d at 7 ; State v. Weaver, 2002 S.D. 76, ¶¶ 10–19, 648 N.W.2d 355, 359–63 ; Dillo......
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State v. McMillen
...said to have occurred only if each statute requires proof of an additional fact which the other does not." Id. (quoting State v. Hoffman , 430 N.W.2d 910, 911 (S.D. 1988) ). In applying the Blockburger test, we have stated that when ascertaining the intent behind South Dakota law, "we part ......
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State v. McGill
...see State v. Big Head, 363 N.W.2d 556, 559 (S.D.1985). The language of statutes needs to be fair and reasonably certain. State v. Hoffman, 430 N.W.2d 910, 912 (S.D.1988). It is realized that criminal laws represent a legislative balancing act in many instances. In an attempt to prohibit cer......
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State v. Darby
...may be said to have occurred only if each statute requires proof of an additional fact which the other does not. State v. Hoffman, 430 N.W.2d 910, 911 (S.D.1988) (citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 183, 76 L.Ed. at 309). The Blockburger test was recently examined and reaffirme......