State v. Douglas C. (Concurrence)

Summary

The concurrence agrees with affirming Douglas C.'s convictions because the charges were not impermissibly duplicitous, but rejects the majority's categorical approach to multiple instances of the same offense. It would instead allow prosecutors, absent contrary legislative direction, to charge repeated violations as a course of conduct subject to trial-court review for fairness, notice, unanimity, due process, and double-jeopardy concerns. Applying that framework, it concludes that charging repeated risk-of-injury conduct involving each victim as a course of conduct was reasonable and did not violate the defendant's Sixth Amendment right to a unanimous jury. Justice Mullins, joined by Justice Keller, concurs in the judgment while advocating a more flexible framework than the majority.