A bad Valentine? Anyone pleading multiple acts of sexual abuse may want to consider how to deal with this potential problem. Notice a challenge to the wording of the indictment was permitted upon federal habeas. I am at a loss as to how one really solves this difficulty in the average case. Obviously you will be required to plead some evidence (contrary to the normal rule).

Well, even based on the 6th Circuit's language, we can be sure it happened at least two times. So, why didn't they affirm two judgments and uphold at least one stacking order?

It also seems silly to make that ruling in the absence of any evidence that anyone is going to indict him again. Wouldn't the proper forum for this complaint be in any subsequent proceedings, which we already know aren't going to happen?

This case does not mean that we must include anything more in the indictment, although dates of offenses often distinguish different counts now. But, at the time of trial, if a defendant makes this objection (or requests an election, as is often done), the prosecutor simply must find a way in the jury charge to distinguish each count.

For example, the jury charge may specify that one count deals with an allegation of sexual abuse that took place at a particular location (at school, at home, in a bedroom, in a bathroom). That sort of specificity has been held to be enough to survive a double jeopardy challenge.

In addition, prosecutors should be charging every variety of sexual offense in multiple counts. For example, charge aggravated sexual assault (separating each type in to a separate count), indecency with a child (for the touchings) and indecency with a child (for the exposures). There can be no double jeopardy allegation for those because they are separate offenses by definition.

Of course, all of this fails to recognize the difficulty created by a defendant choosing a young victim. Is it the child's fault that the defendant chose a victim who is not capable of dealing with time and space as an adult?

This is another case, it appears, of a prosecutor going overboard with the possible result a bad case for the good guys. There just is no good reason to charge someone in a 40 count indictment, unless in Ohio they don't have an equivalent of 38.37 CCP. Can you imagine what the charge would look like if the defense forced them to differentiate? Forty application paragraphs, no two of which could be the same?