Multiplicity, Again and Again
by: Ryan • August 13, 2014 • no comments
A pre-trial challenge to a multiplicitous indictment doesn't happen very often. It's rare you even have grounds to file one. When I've seen it, it's usually been because the state has simultaneously charged Sex Abuse II (based on having sex with a minor) and Contributing (based on having sex with a minor) in the same indictment. Or Sex Abuse II (based on having sex with a minor) and Rape III (based on having sex with someone under 16.)
If there's only one act of intercourse, charging both is a violation of the rule against multiplicity, which is rooted in the double jeopardy clause (even though it's a single prosecution).
Today, the COA didn't address the issue, but it did rule that -- self-evidently -- Sex Abuse II (based on deviate sexual intercourse with a minor) and Sodomy III (based on deviate sexual intercourse with a minor) should merge into a single conviction. State v. Pass.
Why do the counts merge? Because "the elements of the two offenses as charged here are congruent: (1) deviate sexual intercourse; and (2) lack of consent (predicated on the complainant's age)."
That's the same reason an indictment that charges both for one act of intercourse is multiplicitous and, thus, subject to a pre-trial challenge.
