Cooksey v. State, 126

• Court: Court of Appeals of Maryland
• Writing for the Court: WILNER.
• Citation: 752 A.2d 606,359 Md. 1
• Parties: Charles Anthony COOKSEY v. STATE of Maryland.
• Docket Number: No. 126,126
• Decision Date: 02 June 2000

752 A.2d 606
359 Md. 1

Charles Anthony COOKSEY
v.
STATE of Maryland

No. 126, Sept. Term, 1999.

Court of Appeals of Maryland.

June 2, 2000.

Reconsideration Denied June 23, 2000.

Franklin B. Olmsted, LaPlata, for petitioner.

Gary E. Bair, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

752 A.2d 607

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ

WILNER, Judge.

The Circuit Court for Charles County dismissed a four-count indictment that charged petitioner with second and third degree sexual offenses and sexual child abuse on the ground that each of the counts was duplicitous. The Court of Special Appeals reversed that judgment, finding no duplicity with respect to the counts charging sexual child abuse and, as to the other counts, that dismissal on the ground of duplicity was premature. The two issues before us are (1) whether a count that charges a person with having committed what, in law, is a single-act sexual offense, on several occasions over a substantial period of time, effectively charges more than one offense and is dismissible on the ground of duplicity, and (2) if so, whether sexual child abuse, as charged in this case, is necessarily a single-act offense. We shall answer the first question in the affirmative and the second in the negative and therefore reverse in part and affirm in part the judgment of the Court of Special Appeals.

BACKGROUND

The indictment charged petitioner, in Count 1, with having, "in a continuing course of conduct" between July 22, 1991, and July 22, 1992, feloniously committed "a" sexual offense in the second degree by engaging in "a sexual act" with Casey C., a child then under fourteen, at a time when petitioner was four or more years older then the child. In response to petitioner's demand for particulars, the State alleged that the "sexual act" was cunnilingus, that it occurred "up to fifteen times" during the year period, but that, because of the child's youthful age, the State was not able to state precisely when any of the acts occurred. The statute at issue, Maryland Code, Article 27, § 464A(a)(3) declares that a person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person who is under 14 years of age and the person performing the sexual act is four or more years older than the victim. Section 461A of Article 27 defines "sexual act" to include cunnilingus.

Count 2 charged that, during the same year, petitioner, "in a continuing course of conduct," committed a sexual offense in the third degree by engaging in sexual contact with Casey C., who was then under 14, at a time when petitioner was more than four years older than the victim. In its response to the demand for particulars, the State identified the sexual contact as consisting of petitioner's touching the victim's buttocks and genitals with his hand, inserting his finger into her vagina, attempting to penetrate her vagina with his penis, rubbing her hand on his penis, and placing her on top of him and moving her up and down. It averred that this conduct occurred "[u]p to fifteen" times during the year-long period but that the State was unable to be more specific. The relevant statute, § 464B(a)(3), makes it a sexual offense in the third degree for a person to "engage in ... [s]exual contact with another person who is under 14" if the person "performing the sexual contact" is four or more years older than the victim. Section 461(f) defines "sexual contact," in relevant part, as "the intentional touching of any part of the victim's anal or genital areas or other intimate parts for the purpose of sexual arousal or gratification or for abuse of either party."

Counts 3 and 4 charged petitioner with sexual child abuse, in violation of Article 27, § 35C. Count 3 alleged that, in a continuing course of conduct, petitioner, being a household member and one who had permanent and temporary care and custody and responsibility for the supervision of Casey C., a child under 18 years of age, caused sexual abuse to her "by engaging in sexual molestation and sexual exploitation." In its particulars, the State averred

752 A.2d 608

that the conduct constituting the sexual molestation and exploitation was the conduct alleged in Counts 1 and 2 and that it occurred "[u]p to fifteen" times. Count 4 charged petitioner with sexually abusing, through sexual molestation and exploitation, another child under the age of 18—Holly M.—who was not alleged to be a member of the household but a child over whom petitioner had permanent and temporary care and custody and responsibility for supervision. In its particulars, the State averred that the conduct committed against Holly consisted of the petitioner's fondling the victim's breasts with his hands, twisting her nipples, placing his mouth to her breasts, rubbing against the victim, exposing his penis to her, and masturbating in her presence, and that this conduct occurred between 75 and 100 times during the period from June 30, 1984 through August 17, 1987. Section 35C defines "sexual abuse" as "any act that involves sexual molestation or exploitation" by a parent, family or household member, or person having custody or responsibility for supervision of the child, including incest, rape, sexual offense in any degree, sodomy, or unnatural or perverted sexual act

Upon receipt of the particulars, petitioner moved to dismiss the indictment on a number of grounds, including the claim that each count was duplicitous and in violation of Maryland Rule 4-203(a) and that it did not sufficiently inform him of the accusation, in violation of Articles 21 and 24 of the Maryland Declaration of Rights and the Sixth and Fourteenth Amendments to the U.S. Constitution. In response to the motion, the State amended its bill of particulars to add, as to Counts 1, 2, and 3, that they charge "one offense, which comprises up to fifteen incidents," and, as to Count 4, that it charges one offense, "which comprises between seventy-five and one hundred incidents." Relying largely on State v. Mulkey, 316 Md. 475, 560 A.2d 24 (1989), the court found no violation of the requirement that the charges be stated with reasonable particularity but concluded that each of the four counts was duplicitous and, on that ground, dismissed them. After declaring that the "unit of prosecution" for each of the offenses was "one prosecution per single act," the court stated that, even if Maryland were to follow "a progressive and policy oriented balancing test this indictment would still be fatally duplicitous."

The Court of Special Appeals reversed. It first concluded that sexual child abuse could, indeed, be a continuing offense crime. Noting that the word "act," as used in the definition of sexual abuse, was not defined, it held that "[c]hild sexual abuse by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time." State v. Cooksey, 128 Md.App. 331, 738 A.2d 298 (1999). On that theory, the court found that Counts 3 and 4, charging sexual abuse in a continuing course of conduct, were not duplicitous.

The appellate court's treatment of Counts 1 and 2 was different. Second and third degree sexual offenses, as defined in Maryland law, are "single act" crimes. Maryland has not enacted, as have California and New York, a statute creating a course of conduct offense, and the court seemed to recognize, at least facially, that the charging of more than one single act offense in a single count made the count duplicitous. The court attempted to deal with that problem by looking behind the prohibition against duplicitous pleading to the reasons for the prohibition, and it drew from United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980) three such reasons: to implement a defendant's right to (1) reasonable notice of the charge, (2) a unanimous verdict, and (3) protection against double jeopardy. It then determined that there was no danger to any of those rights from the indictment at issue. As supplemented by the particulars supplied by the State, the indictment sufficed under our decision in Mulkey, supra, 316 Md. 475,

752 A.2d 609

560 A.2d 24, to provide sufficient notice. Cooksey, supra, 128 Md.App. at 352, 738 A.2d at 310

The problem of jury unanimity was a bit more difficult. The danger in combining several single act offenses in a single count is that all 12 members of the jury may be convinced that the defendant committed one of those acts but not be able to agree on which one. The result would be a conviction for a single act offense without a unanimous finding as to the offense committed—a "patchwork" verdict, in the words of the court—that would raise significant Constitutional concerns. Relying on out-of-State cases, the court concluded that that problem could be solved by requiring, at the end of the case, "either ... an election by the prosecution of the single act upon which it is relying for a conviction, or ... a specific unanimity instruction." Id. at 355, 738 A.2d at 311. The instruction, apparently, would require the jury, in order to convict, to agree on one act that was committed. Although not addressing the double jeopardy problem explicitly, the court presumably believed that the election/instruction approach would resolve that problem as well. The court admonished that its decision was not intended to encourage the bringing of multiple charges in a single count, but that "[a] delicate balance must be achieved between the prosecution's need to secure a conviction in child sexual offense and abuse cases and the defendant's right to be informed of the charges with sufficient factual detail to enable him to prepare a defense, and to be afforded a unanimous jury verdict." Id. at 357, 738 A.2d at 312. Because in its view a proper instruction would have protected...