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Judge to decide if 37-year-old child molestation allegation should go forward

Thomas Franklin Funk was indicted in December 2010 on two counts each of custodial child abuse, third-degree sex offense and battery, and one count of child abuse

February 15, 2011|By DON AINES | dona@herald-mail.com

Washington County Circuit Judge W. Kennedy Boone III said Monday he will decide in about two weeks if the case of a Hagerstown man recently indicted on a 37-year-old child molestation allegation should go forward or if it should be dismissed because of the decades-long delay.

Thomas Franklin Funk, 65, of 12829 Cathedral Ave., was indicted in December 2010 on two counts each of custodial child abuse, third-degree sex offense and battery, and one count of child abuse under another section of the statute.

Funk's attorney, Alan L. Winik, asked Boone to dismiss the case due to pre-indictment delay because the underlying allegations date to 1973. Similar charges were filed in Washington County District Court against Funk in 1990, and in November of that year the state decided not to prosecute the case, he said.

"This delay reaches a constitutional dimension, and the indictment should therefore be dismissed," said Winik, who presented a letter from Funk's attorney in 1990 that stated the charges were later expunged from Funk's record.

"Because it was expunged, we have no idea what charges were filed in 1990," Assistant State's Attorney Brett Wilson told Boone. The case originally was investigated by the sheriff's office, he said.

Maryland State Police Cpl. James Updegraff testified Monday that the alleged victim, now 46, went to the police barracks in March 2010 and gave a statement about the allegations. Updegraff testified that he was unaware of the previous investigation until he spoke with Funk and was told "it had been taken care of" in court years earlier.

The alleged victim did not testify Monday about the allegations against Funk. He said he spoke with a deputy about the allegations in, he believed, in 1985.

The alleged victim testified he had no further contact with the sheriff's office after speaking with the deputy.

Winik told Boone the delay between the date of the allegations and the indictment in December constituted a denial of Funk's rights to due process and a speedy trial.

The state could have decided in 1990 not to prosecute "without prejudice," meaning the charges could be filed again, Wilson told Boone. The indictment is only three months old so there has been no denial of due process or the right to a speedy trial, he argued.

Wilson noted there is no statue of limitations on child sexual abuse charges.

"I want to do some research," Boone said before announcing he would render a decision in two weeks.

Funk, who is free on bail, is scheduled for trial March 22, according to court records.

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