Cooksey v. State

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, ⁴ § 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 ... [sjexual 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 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, ⁵ 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.” ⁶ 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 , 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 ⁷ 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 petitioner’s right to a unanimous verdict, the court concluded that dismissal of the indictment on the ground of duplicity was “premature.” Id. DISCUSSION The Rule Against Duplicitous Pleading In State v. Warren, 77 Md. 121, 122 , 26 A. 500 (1893), we defined duplicity in criminal pleading as “the joinder of two or more distinct and separate offenses in the same count.” We observed that “[t]he object of all pleading, civil and criminal, is to present a single issue in regard to the same subject-matter, and it would be against this fundamental rule to permit two or more distinct offenses to be joined in the same count.” Id. at 121-22 , 26 A. at 500 .

That principle has been confirmed by us on a number of occasions. See Mohler v. State, 120 Md. 325 , 87 A. 671 (1913); Weinstein v. State, 146 Md. 80 , 125 A. 889 (1924); Jackson v. State, 176 Md. 399 , 5 A.2d 282 (1939); Kirsner v. State, 183 Md. 1 , 36 A.2d 538 (1944); Ford v. State, 330 Md. 682, 699 , 625 A.2d 984, 990 (1993); Robinson v. State, ⁸ 353 Md. 683 , 688 n. 4, 728 A.2d 698 , 700 n. 4 (1999) (distinguishing duplicity and multiplicity). The prohibition against duplicity in both civil and criminal cases began as and remains a rule of pleading. It had a common law origin and is now codified in the Rules of this Court.

Maryland Rule 2-303(a) requires, as a rule of civil pleading, that “[e]ach cause of action shall be set forth in a separately numbered count.” Rule 4-203(a), dealing with criminal pleading, states the principle equally well though more indirectly. It allows two or more offenses to “be charged in separate counts of the same charging document if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” By limiting what may be charged even in separate counts of a single charging document, the Rule rather clearly precludes the charging of separate offenses in a single count. See Ayre v. State, 21 Md.App. 61, 318 A.2d 828 (1974); State v. Hunt, 49 Md.App. 355 , 432 A.2d 479 (1981). Although the prohibition against duplicity is a rule of pleading, its application in criminal cases has underlying substance; it serves to protect several basic rights that may be seriously jeopardized by the charging of separate offenses in a single count.

The most basic right protected by the rule—though one that is not often separately articulated—is that of fundamental fairness, to both the defendant and the State. In Weinstein v. State, supra, 146 Md. 80 , 125 A. 889 , we pointed out that Maryland does not allow the splitting of a verdict on a single count; there can be but one verdict on a count. Thus, “if two distinct crimes are charged in the same count, although they may believe [the defendant] guilty of one and not guilty of the other, the jury trying the case must nevertheless either convict [the defendant] of both or acquit him [or her] of both.” Weinstein, 146 Md. at 83 , 125 A. at 890 . It takes no extended discussion to demonstrate both the unfairness and the illogic emanating from that prospect.

The unfairness to the State of ⁹ the jury returning a unitary verdict of not guilty when it unanimously agreed that the defendant was guilty of at least one offense charged in the count may be simply a matter affecting public policy. The unfairness of an approach that would allow a defendant to be convicted of a crime that the jury actually concludes the defendant did not commit transcends public policy and is obviously of the highest Constitutional dimension. Among the equally important but subordinate rights often identified as being protected by the prohibition against duplicitous pleading are the right of the accused to reasonable notice of the charges, guaranteed by the Sixth Amendment to the U.S. Constitution and Article 21 of the Maryland Declaration of Rights; the right, specific in Article 21 of the Maryland Declaration of Rights, to jury unanimity; and the right, guaranteed by the Fifth Amendment to the U.S. Constitution and Maryland common law, not to be placed in double jeopardy. Courts have also regarded the prohibition against duplicity as avoiding prejudice and confusion from evidentiary rulings made during the trial and assuring that, if convicted, the defendant is appropriately sentenced.

See United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.1980), cert. denied, 449 U.S. 843 , 101 S.Ct. 124 , 66 L.Ed.2d 51 (1980); United States v. Pavloski, 574 F.2d 933, 936 (7th Cir.1978); United States v. Starks, 515 F.2d 112, 116-17 (3d Cir.1975); State v. Lomagro, 113 Wis.2d 582 , 335 N.W.2d 583 (1983). The double jeopardy and jury unanimity concerns arise because a court cannot always be' certain that a verdict rendered on a duplicitous count truly represents the unanimous agreement of the jury as to each offense charged in the count. If a guilty verdict is rendered on a count containing two or more separate offenses, there is the prospect of uncertainty as to whether the jury unanimously found guilt as to all offenses, at least one but less than all, or none, and, if at least one but less than all, which ones. Giving credence to what we said in Weinstein , it is possible, and often not improbable, that, although all jurors were convinced that the defendant committed at least one offense alleged in the count and ¹⁰ returned a verdict of guilty on that basis, they either did not all agree as to which one or they agreed as to a particular one but not as to others.

Had the offenses been charged separately, there may have been either an acquittal or a hung jury/mistrial on one, several, or all of them. That uncertainty raises a host of problems, beginning, chronologically, with the fashioning of a proper sentence. May the judge properly assume from a unitary guilty verdict that the defendant committed everything charged in the duplicitous count and sentence accordingly? Beyond the problem of sentencing, if, when faced with a guilty verdict on a duplicitous count, an appellate court were to conclude that the evidence was sufficient as to one charge included in the count but not another, or that there was some prejudicial trial error affecting one charge but not another, the entire judgment entered on the count may have to be stricken, including the part as to which there was no error, because the court could never be sure whether the verdict rested in whole or in part on the charge as to which error was found.

See Nightingale v. State, 312 Md. 699, 708-09 , 542 A.2d 373, 377-78 (1988); Yates v. United States, 354 U.S. 298, 312 , 77 S.Ct. 1064, 1073 , 1 L.Ed.2d 1356, 1371 (1957). In such an event, any retrial on the several charges would raise the real prospect of the defendant being retried for an offense that the first jury believed he or she did not commit. Even if the jury is hung on a duplicitous count, the question lurks whether it may have acquitted on one or more of the combined offenses had they been separately charged, and, upon any retrial, the same double jeopardy prospect is presented. See 4 Wayne LaFave, Jeróld Israel, Nancy King, Criminal Procedure, § 19.3(c) (2d ed.1999).

In concept, the two issues presented here may be recast as follows: first, to what extent may the State satisfy the rule against duplicity by treating successive acts, each of which constitutes an offense that could be charged separately, as one offense committed through a continuing course of conduct; and second, should the rule against duplicitous pleading be strictly applied when (1) there is some perceived higher social ¹¹ purpose for not strictly applying it in a particular setting, and (2) the concerns and rights underlying the rule can be addressed in other ways? We shall address those issues in turn. The Continuing Course of Conduct Offense The first issue is whether the rule has been violated at all. Has the State charged more than one offense in any of the four counts?

Simplistically, the State contends, through its amended particulars, that it has not done so—that it has charged “one offense, which comprises up to fifteen [or between 75 and 100] incidents.” That, of course, merely begs the question. We are not dealing here with the averment of but one criminal act, the uncertainty being when it was committed (see State v. Mulkey, supra, 316 Md. 475 , 560 A.2d 24 , Com. v. King, 387 Mass. 464 , 441 N.E.2d 248 (1982)), but, at least in Counts 1 and 2, with the allegation of many criminal acts occurring over an extended period of time. The question of whether, and under what circumstances, such separate criminal acts may combine to create one separately punishable offense—a kind of e pluribus unum approach—has arisen in at least four different contexts, some of which often overlap: (1) when the acts are committed as part of a single incident or transaction; (2) when they are simply descriptive of a single offense; (3) when they are committed at different times but in a continuing course of conduct with a single objective; and (4) when a single offense may be committed in two or more different ways. We have dealt with all four contexts.

In State v. Warren, supra, 77 Md. 121 , 26 A. 500 , we applied the “single transaction” theory in holding that a count that charged the defendant with stealing, at the same time, several articles of property belonging to several different owners charged but one offense—not as many offenses as there were owners of the stolen property—and, accordingly, was not duplicitous. The gist of the offense, we declared, was the taking of the property, and the quality of that act was not affected by the fact that the property taken belonged to several persons rather than just one. In conformance with that view, we also concluded in Warren that the value of all of ¹² the property taken in the single transaction could be aggregated to determine whether the offense was grand or petty larceny. In Jackson v. State, supra, 176 Md. 399 , 5 A.2d 282 , we examined the second context.

The count charged the defendant with the common law offense of keeping a disorderly house. It alleged, among other things, that he maintained a house for the sale of alcoholic beverages, that he kept such beverages without a license, that he allowed idle and ill-disposed persons to assemble there, and that he procured persons for the purpose of unlawfully selling them alcoholic beverages. Notwithstanding that the keeping of alcoholic beverages without a license constituted a separate offense that could have been separately charged, we found no duplicity in the count. The charge in the count was keeping a disorderly house, and the challenged averments were merely “explanatory of the elements of the disorder.” Id. at 402, 5 A.2d at 283 .

An indictment may properly aver “any of the acts which the State might establish in order to show the character of the house.” Id. In Mohler v. State, 120 Md. 325 , 87 A. 671 (1913), we addressed the continuing course of conduct circumstance. In a one-count indictment, the defendant, a constable, was charged with malfeasance in office. The charge was based on allegations that he had unlawfully and corruptly accused one Spampinato of selling goods without a license, by virtue of his office corruptly obtained a warrant from a justice of the peace, arrested Spampinato pursuant to the warrant, brought him before the justice of the peace for trial but corruptly coerced him to pay $15 to the justice of the peace without a trial, and then received part of the $15 from the justice of the peace.

Mohler moved to dismiss the indictment, claiming that each of those acts was a separate crime and that their combination in one count made the indictment duplicitous. The trial court denied the motion and we affirmed. Although we confirmed, as a fundamental principle of pleading, that more than one distinct offense may not be charged in a single count, we also recognized “that a count is not double because it charges ¹³ several related acts, all of which enter into and constitute one offense, although such acts may in themselves constitute distinct offenses.” Id. at 327 , 87 A. at 671-72 . We explained: “If the acts alleged are of the same nature and so connected that they form one criminal transaction, they may be joined in one count, although separately considered they are distinct offenses.

If they can be construed as stages in one transaction and are not inherently repugnant, the count will not be bad for duplicity.” Id. at 328 , 87 A. at 672 (emphasis added). The misconduct charged to Mohler, we concluded, was that he corruptly obtained money under cover of his office. The other averments, although they could have been charged as separate offenses, “were only recitals of the means taken by him to accomplish the end” and “[cjonsidered as a whole, they constitute but one transaction.” Id. Compare Kirsner v. State, supra, 183 Md. 1 , 36 A.2d 538 , where we held that (1) a count alleging the violation of several sections of the Baltimore City Building Code that proscribed different conduct was fatally duplicitous, and (2) when a statute makes each day’s violation a separate offense, not more than one day’s violation may be charged in a single count.

We applied the same kind of “continuing transaction” approach in Horsey v. State, 225 Md. 80 , 169 A.2d 457 (1961), which presented a type of converse situation to that in Warren . In Horsey , the issue was not whether an indictment was duplicitous but whether the value of goods taken by the defendant from his employer at different times could be aggregated to establish one felony, rather than separate misdemeanors. We held that, when a person steals articles from the same owner at different times, a trial court may properly find that the separate takings were pursuant to a common scheme or intent and that, if they were, “the fact that the takings occur on different occasions does not establish that they are separate crimes.” Id. at 83 , 169 A.2d at 459 . See also Delcher v. State, 161 Md. 475 , 158 A. 37 (1932) (count charging false pretense at specific time not duplicitous because ¹⁴ of allegation that defendant received money pursuant to the scheme on several different occasions).

We first dealt with the fourth context in Stearns v. State, 81 Md. 341 , 32 A. 282 (1895), a gambling case. The defendant was charged, in one count, with keeping a house for the purpose of making or selling books or pools based on racing results or betting therein. The statute proscribed a number of different gambling activities in the disjunctive, including making books or betting. We concluded that an indictment based on such a statute “may allege in a single count that the defendant did as many of the forbidden things as the pleader choose?, employing the conjunction ‘and’ where the statute has ‘or’ and it will not be double, and it will be established at the trial by proof of any one of them.” Id. at 345 , 32 A. at 283 .

By using the conjunctive, only one offense would be stated. Pleading those acts in the disjunctive, however, made the count duplicitous, for it then charged more than one offense. That view, too, has been confirmed in subsequent cases. See Jones v. State, 303 Md. 323, 341 , 493 A.2d 1062, 1071 (1985) and cases cited there.

We have never considered the issue now before us, of whether a series of sexual offenses committed at different times over an extended period on the same victim, either directly or through a charge of sexual child abuse based on those same underlying offenses, may be joined in a single count. The closest we came was in State v. Boozer, 304 Md. 98 , 497 A.2d 1129 (1985), where the defendant was charged, in a District Court Statement of Charges, with a fourth degree sexual offense. Article 27, § 464C makes it a fourth degree sexual offense for a person to engage in any of three activities: sexual contact with another person against the will and without the consent of that person; a sexual act with another person 14 or 15 years of age if the person performing the sexual act is four or more years older than the victim; or vaginal intercourse with another person who is 14 or 15 years old if the person performing the act is four or more years older. Boozer was alleged to have committed a sexual act with the victim.

Id. at 100, 497 A.2d 1129 . ¹⁵ After the case was transferred to the Circuit Court for jury trial and the jury was sworn (jeopardy thus attaching), the prosecutor realized that his evidence would be that Boozer inserted his fingers into the victim’s vagina, which constituted sexual contact but not a sexual act, as those terms were defined for purposes of the sexual offense laws. He therefore sought to amend the charging document to allege sexual contact, and when, on Boozer’s objection, that was not allowed, he entered a not pros without Boozer’s consent. The State then filed a new charging document alleging a fourth degree sexual offense by means of attempting to have vaginal intercourse with the 14-year old victim. That case, too, was transferred to the Circuit Court where, on Boozer’s motion, the charging document was dismissed on double jeopardy grounds.

The trial court’s rationale was that both acts constituted the same offense. We disagreed with that conclusion. We noted that, prior to the enactment of § 464C, the conduct grouped together in that section had been separately punishable, even if committed in close temporal proximity. A