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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1707 September Term, 1998

STATE OF MARYLAND v. CHARLES ANTHONY COOKSEY

Hollander, Thieme, Alpert, Paul E. (Ret'd Specially Assigned), JJ. Opinion by Thieme, J. Filed: September 29, 1999

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 After

the indictment based on lack of specificity and duplicity. a hearing on the motion, finding the that trial the court counts granted charged

Cooksey's in the

dismissal

motion,

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 Cooksey 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 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

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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. 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 The incidents of abuse were 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 It continued while Cooksey

the victim's sister in June 1984.

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 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.

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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 In the amendment, the State asked that

to Bill of Particulars."

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 incidents." 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, duplicitous. finding that the counts of the indictment were

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." Almaraz, 329 Md. 435, 443 (1993). Faya v.

"The appropriate standard of

review of the grant or denial of a motion to dismiss is whether the

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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 (1992), cert.

denied, 328 Md. 447 (1992) (citing Flaherty v. Weinberg, 303 Md. 116, 135-36 (1985)). See also Broadwater v. State, 303 Md. 461,

467 (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, 246 Cal. Rptr. 352 (1988). Van

Hoek, a "resident child molester,"1 appealed from his conviction for molesting his he daughter was over a of ten-year seven period of of time. and

Specifically,

convicted

counts

lewd

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

The term "resident child molester" was introduced by the California Court "to apply to a person who either resides in the same home with the minor or has unchecked access to the child and repeatedly sexually molests the child over a prolonged period of time." Van Hoek, 246 Cal. Rptr. at 354 n.1. 5

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presented a defense.

The

California

Court

held

that

the

prosecutor's failure in a

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