Warren v. State, 130 A.3d 1128

Background

Warren, stepfather of victim J., was tried first (jury trial, April 21–22, 2014) on an eight-count information alleging sexual offenses and sexual abuse of a minor across July 1, 2008–Dec 31, 2012; jury was sworn and jeopardy attached that morning. Two convictions resulted and appeal affirmed. Homeland Security later recovered deleted images from storage media showing four discrete abusive incidents dated precisely.
The recovered images were disclosed to prosecutors during the first trial but excluded by the trial court for lack of defense preparation time; the State did not obtain a continuance.
The State indicted Warren a second time (four counts of Sexual Abuse of a Minor, each tied to a specific image/date) and prosecuted a non-jury trial Jan 13–14, 2015, obtaining convictions on all four counts and lengthy sentences consecutive to earlier sentence.
Warren moved to dismiss the second indictment on double jeopardy grounds; motion denied. On appeal, the Court of Special Appeals reversed, holding the second trial was barred by double jeopardy because the first-trial charging document had already placed him in jeopardy for the same sexual-abuse conduct and time periods.
The court emphasized (1) jeopardy attaches in a jury trial when the jury is sworn, (2) the scope of jeopardy is measured by the charging document (not evidence introduced later), and (3) the statutory offense Sexual Abuse of a Minor (§3-602) is an umbrella/continuing offense that can encompass many constituent acts, so overlapping temporal coverage in the earlier information bars subsequent charges covering the same conduct.

Issues

Issue	Warren's Argument	State's Argument	Held
Whether second indictment's counts were barred by double jeopardy	Second trial repeats the same Sexual Abuse conduct/time as covered by the earlier information; thus bars retrial	New indictment relies on images not used at first trial; because images were not used earlier, jeopardy for those specific charges did not occur	Reversed: second trial barred — earlier information placed Warren in jeopardy for the same abusive conduct/time so retrial impermissible
When jeopardy attached in first trial	Jeopardy attached when jury sworn (so pretrial scope fixed then)	N/A (State relied on later evidence not changing attachment)	Jeopardy attaches when jury is empaneled and sworn in jury trials (Crist governs)
How to measure the scope of prior jeopardy	Scope is defined by the charging document (information), not by evidence actually introduced or later jury instructions	State argued jury instructions limited scope to specific constituent acts (fellatio) so later counts non-overlapping	Charging document defines scope; jury instructions or the evidence presented do not narrow the constitutional jeopardy once attached (Anderson, Ingram)
Whether partial temporal overlap permits retrial for non-overlapping days	Any overlap that exposes defendant to repeat jeopardy bars the subsequent prosecution for that charge (no partial allowance)	Because Count 4 mostly fell outside earlier period (30 days), State argued partial non-overlap permitted prosecution for the later days	Even partial overlap that re-exposes defendant to jeopardy is enough to bar the second trial; plea in bar protects against any repeat jeopardy

Key Cases Cited

Crist v. Bretz, 437 U.S. 28 (1978) (jeopardy in jury trials attaches when the jury is empaneled and sworn)
Benton v. Maryland, 395 U.S. 784 (1969) (Fifth Amendment double jeopardy protection incorporated against the states)
Anderson v. State, 385 Md. 123 (2005) (scope of prior conviction for double jeopardy purposes is measured by the effective charging document)
Tribbitt v. State, 403 Md. 638 (2008) (Sexual Abuse of a Minor statute is broad/umbrella and covers 'any' act of sexual molestation or exploitation)
Crispino v. State, 417 Md. 31 (2010) (examples of non-sex-offense acts, e.g., French kissing, can support Sexual Abuse conviction; unanimity not required as to specific constituent act)
Malee v. State, 147 Md. App. 320 (2002) (continuing/umbrella sexual-abuse charge can embrace many discrete sexual-offense counts)
Copsey v. State, 67 Md. App. 223 (1986) (double jeopardy described as plea in bar deriving from autrefois acquit/convict)
Serfass v. United States, 420 U.S. 377 (1975) (in bench trials jeopardy attaches when the first witness is sworn)