State v. Cooksey

THIEME, Judge. The appellee, Charles A. Cooksey, was charged in the Circuit Court for Charles County, by way of a four-count indictment, with second degree sexual offense, third degree sexual offense, and two counts of child sexual abuse. Cooksey filed a motion to dismiss the indictment based on lack of specificity and duplicity. After a hearing on the motion, the trial court granted Cooksey’s dismissal motion, finding that the counts charged in the indictment, as part of a “continuous course of conduct,” were duplicitous.

The State noted its appeal, presenting the following issue for our review: Did the trial court err in granting Cooksey’s Motion to Dismiss the indictment on duplicity grounds? We answer “yes” to this question. Facts On July 6, 1998, the State charged Charles Anthony Cook-sey in a four-count indictment. The first two counts of the indictment charged Cooksey with committing second and third degree sexual offenses, respectively, upon Casey C. between July 22, 1991, and July 22, 1992, “in a continuing course of conduct.” The third and fourth counts of the indictment charged Cooksey with sexual child abuse of both Casey C. and Holly M. The abuse of Casey C., as alleged in the third count, occurred between July 22, 1991, and July 22, 1992, in a “continuing course of conduct.” The fourth count alleged abuse of Holly M. occurring earlier, between June 30, 1984, and August 17, 1987, “in a continuing course of conduct.” Cooksey filed a Demand for Bill of Particulars.

For each count he demanded, inter alia, “the number of offenses of the kind charged in the count that are included in the alleged course of conduct.” The State responded with a Bill of Particulars as follows: As to the second and third degree sexual offenses, the State explained that due to the youthful age of the victim, and her inability to recall more specific ³³⁶ dates, the State was unable to provide more specific dates than the time frame provided in the indictment. The State did specify, however, that the second and third degree sexual offenses occurred at 2301 Ironside Drive in Waldorf, Maryland. The second degree sexual offense was alleged to have consisted of Cooksey’s touching the victim’s buttocks and genitals with his hand, inserting his finger into the victim’s vagina, attempting to penetrate her vagina with his penis, rubbing her hand on his erect penis, and placing her on top of him and moving her up and down, all for the purpose of sexual arousal or gratification. The second degree sexual offense also consisted of acts of cunnilingus when the victim was eight years old that continued for six months to one year, consisted of as many as fifteen incidents, and ended after Cooksey assaulted the victim’s mother in July 1992.

As to the third count of the indictment, sexual child abuse of Casey C., the State added that Cooksey was dating the victim’s mother during the period of abuse, and was a regular presence in the victim’s home. He often helped the victim’s mother care for the victim, and the incidents of abuse were alleged to have occurred as many as fifteen times. The incidents of abuse were the same as those discussed above. With respect to the fourth count of the indictment, sexual child abuse of Holly M., the State again explained that the youthful age of the victim and her inability to recall specific dates precluded the State from being any more specific than its alleged time frame of June 30, 1984, through August 17, 1987.

The State supplemented the indictment with information that the abuse occurred in Charles County, Maryland, and began when Cooksey began dating the victim’s sister. The abuse continued after he married the victim’s sister in June 1984. It continued while Cooksey resided with the victim during 1986 and 1987, during which time Cooksey had care, custody, or responsibility for her supervision. The abuse ended when the victim ran away to Florida on August 17, 1987.

The State also set forth that the victim was a minor child who frequently spent the night at Cooksey’s residence and that he was responsible for her supervision. Cooksey was ³³⁷ charged with fondling the victim’s breasts, placing his mouth on her breasts, rubbing against her, exposing his penis to her, and masturbating in her presence. The State alleged that the sexual child abuse was a continuous course of conduct that occurred between seventy-five and one hundred times during the specified time period. On October 2, 1998, a hearing was held on Cooksey’s Motion to Dismiss the indictment on grounds of lack of specificity and duplicity.

After the hearing, the State filed “State’s Amendment to Bill of Particulars.” In the amendment, the State asked that Parts I, II, and III of the Bill of Particulars be amended to read, “The count charges one offense, which comprises up to fifteen incidents.” And the State asked that Part IV of the Bill of Particulars be amended to read, “The count charges one offense, which comprises between seventy-five and one hundred incident^.” Cooksey answered with a Memorandum. On October 19, 1998, the trial court issued an Opinion and Order granting, in part, Cooksey’s Motion to Dismiss. The court ruled that the indictment was reasonably particular, given the continuing nature of the offenses. The court ruled against the State, however, on the matter of duplicity, finding that the counts of the indictment were duplicitous.

The appeal timely followed. Discussion In determining whether the trial court erred in granting the dismissal motion, we are obliged to “accept as true all well-pleaded facts and allegations in the complaint[ ], together with reasonable inferences properly drawn therefrom.” Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993). “The appropriate standard of review of the grant or denial of a motion to dismiss is whether the well-pleaded allegations of fact contained in the complaint, taken as true, reveal any set of facts that would support the claim made.” Tafflin v. Levitt, 92 Md.App. 375, 379 , 608 A.2d 817 (1992), cert. denied, 328 Md. 447 , 614 A.2d 974 (1992) (citing Flaherty v. Weinberg, 303 Md. 116, 135-36 , 492 A.2d 618 (1985)). See also Broadwater v. State, 303 Md. 461, 467 , 494 A.2d 934 ³³⁸ (1985) (a motion to dismiss lies where there is no justiciable controversy). As the State points out, there are no Maryland cases directly addressing the question of duplicity in an indictment charging sexual offenses committed on a continuous basis over a period of time.

We will, then, begin our analysis by reviewing the case law of other jurisdictions dealing precisely with this issue. The California Court of Appeal was faced with a similar dilemma in People v. Van Hoek, 200 Cal.App.3d 811 , 246 Cal.Rptr. 352 (1988). Van Hoek, a “resident child molester,” 1 appealed from his conviction for molesting his daughter over a ten-year period of time. Specifically, he was convicted of seven counts of lewd and lascivious conduct and one count of unlawful sexual intercourse.

The State did not present evidence of any specific act to support the charged offenses, and the child failed to identify in time or place a single specific occasion to which Van Hoek could have presented a defense. The California Court held that the prosecutor’s failure in a § 288(a) casé 2 to plead and prove a specific instance of molestation violated the defendant’s constitutional right to due process of law. The Court reasoned that when the victim’s testimony is unspecific as to any particular occasion, and yet involves many acts committed over an extended period of time, it would be impossible for the prosecution to select the specific act relied upon to prove the charge. And, it would be equally impossible for the jury to agree unanimously beyond a reasonable doubt that the defendant committed the same specific act.

Id. at 356. “Implicit in the cases requiring ³³⁹ specificity of charges and the charges being supported by specific testimony given at trial is the fundamental due process rule, steeped in antiquity, that the prosecution must prove a specific act and the twelve jurors must agree on one specific act.” Id. In response to that decision, the California legislature enacted Penal Code § 288.5, 3 “Continuous sexual abuse of a child,” which became effective January 1, 1990. In its entirety, § 288.5 states: (a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, [4] or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6,12, or 16 years. (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.

(c) No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be ³⁴⁰ charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim. By creating a course of conduct offense, the California legislature eliminated the due process and unanimity problems perceived in Van Hoek. See People v. Jones, 51 Cal.3d 34 , 270 Cal.Rptr. 611 , 792 P.2d 643 (1990) (generally, jury unanimity as to specific acts not required for course of conduct crimes).

As explained by the California legislature, 5 these cases often involve children who can relate multiple acts of molestation, but, due to their tender ages, cannot recall with specificity where, when, or how individual acts of abuse occurred. As a result, the pleadings in these cases generally omit such specifics. Hence, § 288.5 remedied problems of pleading and proof that often ensue in cases involving child molesters who engage in repeated acts with their victims, while having close and continuing contact with them. The statute prohibits a continuing course of conduct: the repeated sexual abuse of a minor by an adult who has regular access to the minor.

To establish a violation of § 288.5, the jury must agree unanimously that during the period alleged in the indictment or information the defendant engaged in a pattern of abuse that included at least three acts of molestation, but it need not ³⁴¹ agree on when or where those acts occurred. § 288.5(b); People v. Whitham, 38 Cal.App.4th 1282 , 45 Cal.Rptr.2d 571 (1995). Moreover, only one violation of § 288.5 can be charged for the continuing sexual abuse of a single victim, and the defendant may not be charged with any other felony sex offenses involving the same victim during the period in which the defendant allegedly violated § 288.5. § 288.5(c). Similarly, New York’s Legislature has also responded to the difficulties in prosecuting cases involving resident child molesters. Effective August 1, 1996, the New York legislature enacted Penal Law §§ 130.75 and 130.80.

Section 130.75, “course of sexual conduct against a child in the first degree,” in relevant part, states: (a) A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child less than eleven years old. Section 130.80, “course of sexual conduct against a child in the second degree,” states: (a) A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct with a child less than eleven years old. Both §§ 130.75 and 130.80 further explain that a person cannot be prosecuted subsequently for any other sexual offense involving the same child unless the other charge occurred outside the time frame specified under this section. In People v. Calloway, 176 Misc.2d 161 , 672 N.Y.S.2d 638 (1998), the New York Supreme Court addressed the issues of jury unanimity, indictment specificity, and state and federal constitutionality as it related to the § 130.75 statute.

In that case, the People claimed that for more than three months Calloway engaged in a course of sexual conduct with a female child under the age of eleven years. The Court, quoting ³⁴² People v. Shack, 86 N.Y.2d 529 , 634 N.Y.S.2d 660 , 658 N.E.2d 706 (1995), stated: Whether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act. Guidance is also obtained from analysis of whether the Legislature intended to prohibit a course of conduct or only specific, discrete acts. Id. 672 N.Y.S.2d at 640 .

After reviewing the § 130.75 statute, the Court explained that it was evident from the language of the statute that “the legislature intended to create a single crime, viz., the repeated sexual assault of the same child during a specific period of time.” Id. Because the statute was new, however, there was no New York case law interpreting the issues raised by Calloway . The Court thus looked to similar statutes in other states, particularly California’s Penal Code § 288.5, supra. The New York Court found the analyses of the California courts to be both applicable and persuasive when considering Calloway’s jury unanimity challenge.

The New York Court stated: California, like New York, requires jury unanimity in criminal cases. California courts, however, recognize two contexts in which jury unanimity as to specific acts comprising a course of conduct crime is not required: (1) “acts ... so closely connected that they form part of one and the same transaction” and (2) “when ... the statute contemplates a continuous course of conduct of a series of acts over a period of time” which apples to Cal.Penal Code § 288.5. Id. at 641 (citations omitted). The Court further explained that continuous course of conduct crimes do not require jury unanimity on a specific act, because the specific act is not what is criminalized.

Rather, it ³⁴³ is the actus reus 6 of the crime that requires unanimous assent of the jury. The actus reus in this type of crime is usually a series of acts, occurring over a period of time, that result in cumulative injury to the victim. The jury need agree only that the defendant engaged in the criminal course of conduct. Id.

With these statutes in mind, we turn now to the case before us, and the law of this State. Maryland has not enacted a course of sexual conduct statute. Rather, Cooksey was charged under statutes that ostensibly proscribe single-act crimes. He argues, then, that he cannot be charged on individual counts for criminal conduct, which the State represents as a continuing course of conduct over a given period of time.

Specifically, the first two counts of the indictment against Cooksey charged him with second and third degree sexual offenses, respectively, under Md.Code, Art. 27, § 464A and § 464B. The third and fourth counts of the indictment charged Cooksey with sexual child abuse of Casey C. and Holly M., respectively. We will begin our review of the issues in this case by first discussing the sexual child abuse charges. Count three and count four of the indictment charged Cooksey with child abuse under Md.Code, (1957, 1996 Repl.

Vol., 1998 Supp.), Art. 27, § 35C, which states, in relevant portion: (a)(1) In this section the following words have the meanings indicated. (2) “Abuse” means: (i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the ³⁴⁴ child’s health or welfare is harmed or threatened thereby; or (ii) Sexual abuse of a child whether physical injuries are sustained or not. (3) Child means any individual under the age of 18 years. (4) Family member means a relative of a child by blood, adoption, or marriage.

(5) Household member means a person who lives with or is a regular presence in a home of a child at the time of the alleged abuse. (6) (i) Sexual abuse means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member. (ii), Sexual abuse includes, but is not limited to: 1. Incest, rape, or sexual offense in any degree; 2.

Sodomy; and 3. Unnatural or perverted sexual practices. Cooksey argues that, in the words of the statute that created it, child sexual abuse is a single act crime. We disagree. “The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995).

Moreover, the starting point for determining legislative intent is the language of the statute itself. Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 444-445 , 697 A.2d 455 (1997); Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424 (1997) (quoting Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344 , 653 A.2d 468 (1995)). While undertaking to divine the legislative intent of a statute in Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590 (1992), the Court of Appeals stated: While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of ³⁴⁵ construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears.

Construction of a statute which is unreasonable, illogical, unjust or inconsistent with common sense should be avoided. (Citations omitted.) In the language of the statute, sexual abuse is defined as “any act that involves sexual molestation or exploitation of a child.” Art. 27, § 35C (a)(6)(i) (emphasis supplied). The word “act,” however, is not defined in the statute. The same definitional analysis that we have been called upon to conduct in this case was recently accomplished by the Court of Appeals in Degren v. State, 352 Md. 400 , 722 A.2d 887 (1999).

The Court explained that in State v. Fabritz, 276 Md. 416 , 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976), it had examined the amendments to § 35C as related to the word “act” in the context of child physical abuse. In Degren v. State, an adult with responsibility for supervising a child was charged with sexual abuse under § 35C, for failing to prevent another person from sexually molesting or exploiting the child. Degren , therefore, called upon the Court to determine whether the word “act” encompassed an omission or failure to act in the context of child sexual abuse. Relying on its language in Fabritz , the Court opined: There we concluded that the General Assembly, through its various changes to the language of the statute, consistently expanded its scope and applicability to better achieve the goal of protecting “children who have been the subject of abuse” (citation omitted).

In 1973, for instance, the General Assembly broadened the conduct covered by the statute to include not only direct physical abuse but, as we have said, an act or failure to act that constituted cruel or inhumane treatment or a malicious act or acts. In 1974, the Legislature again amended the child abuse statute to include sexual abuse within the definition of child abuse: “ ‘abuse’ shall ³⁴⁶ mean ... :(B) any sexual abuse of a child, whether physical injuries are sustained or not.” 1974 Md. Laws, Chap. 554, § (b)(7)(B). Sexual abuse was defined as any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on [a] child by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child. (Emphasis supplied.) Id. § (b)(8).

The General Assembly declared “as its legislative intent and purpose the protection of children who have been the subject of abuse” and the purpose of this 1974 amendment was to “expand[ ] the definition of child abuse [and] defin[e] sexual abuse.” Id. (introductory paragraph and purpose clause). . Degren, 352 Md. at 419-20 , 722 A.2d 887 . Child 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.

The statutory definition of this crime does not necessarily contemplate a single act, as denoted by the legislative history of the statute. The legislative purpose of the statute is to protect children. Therefore, the counts of the indictment charging Cooksey in a continuing course of conduct with child sexual abuse were proper and did not require dismissal. Cooksey was also charged with second and third degree sexual offense, respectively, under Md.Code (1957, 1996 Repl.

Vol.), Art. 27, §§ 464A and 464B. In relevant portions, § 464A and § 464B state: § 464A Second degree sexual offense. (a) A person is guilty of a sexual offense in the second degree if the person engages in a sexual act with another person: ... (3) Under 14 years of age and the person performing the sexual act is four or more years older than the victim. § 464B Third degree sexual offense. ³⁴⁷ (a) A person is guilty of sexual offense in the third degree if the person engages in ...

(3) Sexual contact with another person who is under 14 or 15 years of age and the person performing the sexual act is four or more years older than the victim.... (Emphasis supplied.) Section 461 defines sexual act and sexual contact as follows: (e) “Sexual act” means cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Emission of semen is not required. Penetration, however slight, is evidence of anal intercourse.

Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body if the penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party and if the penetration is not for accepted medical purposes. (f) “Sexual contact” as used in §§ 464B and 464C, means the intentional touching of any part of the victim’s or actor’s anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of a person’s body, other than the penis, mouth, or tongue, into the genital or anal opening of another person’s body if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of