Crispino v. State

BATTAGLIA, J. After a jury trial in the Circuit Court for Baltimore County, Dale Albert Crispino, III, Petitioner, was convicted of two counts of child sexual abuse, two counts of second degree sexual offense, and one count of third degree sexual offense. After his motion for a new trial was denied, he was sentenced to ten years’ imprisonment, with all but five years suspended, as well as five years’ probation. Crispino appealed to the Court of Special Appeals, which affirmed his conviction, and we granted his Petition for a Writ of Certiorari, Crispino v. State, 411 Md. 740 , 985 A.2d 538 (2009), to address the following questions, which we have rephrased for clarity: 1. Where the Petitioner was charged with child sexual abuse and the State presented evidence of two incidents of French kissing and two incidents of cunnilingus, did the Circuit Court abuse its discretion by refusing to give a jury instruction requiring unanimity on the specific act on which the jury was basing its guilty verdict? 2.

Did the Circuit Court abuse its discretion by refusing to instruct the jury that it had to find that the alleged criminal acts occurred during the times set forth in the Criminal Information? We shall hold that the Circuit Court judge did not abuse his discretion by refusing to give Crispino’s requested jury instructions. Background In a Criminal Information filed against Crispino, he was charged with sexual offenses committed when he was approximately twenty years old against two sisters, Shannon J., who testified that she was “six or seven” years old at the time of the alleged abuse, and Camberly J., who testified that she was five years old at the time of the alleged abuse. Counts One through Three charged Crispino for his alleged conduct toward Camberly J.; more specifically, child sexual abuse in ³⁵ Count One, second degree sexual offense in Count Two and third degree sexual offense in Count Three.

The acts against Camberly J. were alleged to have occurred between January 6, 2000 and January 5, 2001. Counts Four through Six of the Criminal Information charged Crispino for acts committed against Shannon J.; more specifically, second degree sexual offense in Count Four, third degree sexual offense in Count Five and child sexual abuse in Count Six. 1 All of the acts against Shannon J. were alleged to have occurred between July 7, 1999 and July 6, 2000. After Crispino’s first trial ended in a mistrial, a second jury trial commenced, during which the State presented the testimony of Shannon J. and Camberly J., each of whom testified to specific incidents of abuse committed by Crispino. Shannon J. testified about four incidents she experienced with Crispino, two of which involved French kissing.

Shannon testified that, in one incident, Crispino kissed her with his tongue, “[Fjrench kissing,” which lasted “just like ten minutes.” Shannon also testified that, in another incident, Crispino French kissed her for “ten to [fifteen] minutes.” In this incident, Shannon testified that Crispino “went on top of me, and we were both laying down; and he made out with me and told me he really liked me.” Shannon further testified that each French kissing incident occurred while she was alone with Crispino in “either his or my room.” According to Shannon’s testimony, another incident occurred involving cunnilingus when she was at Crispino’s house, while her father was visiting with Crispino’s father in the living room or kitchen of the Crispino home. While alone in Crispino’s room, Crispino told her to take off her clothes, after which time Crispino “started to lick [her] down there.” Shannon further testified that “he [licked her] genitals” for “[t]en, [fifteen] minutes.” ³⁶ Within “a week or two weeks,” the fourth incident occurred, during which Crispino, again, licked Shannon’s genitals. This incident also occurred while Shannon and' Crispino were alone in Crispino’s room, while their fathers met in another area of the house. Shannon testified that this made her feel “dirty,” “weird,” and “uncomfortable.” According to Shannon, all four incidents occurred when she was “six or seven” years old.

Camberly J. also testified, describing an incident that occurred in a bathroom of her family’s home, while she was brushing her hair. Crispino entered the bathroom and asked Camberly to pull her pants down. After she said no, Camberly testified that Crispino proceeded to pull her pants down and then “licked [her] butt and ... vagina.” She said that this incident made her “scared” and “confused.” Camberly testified that this incident occurred when Crispino was babysitting her and Shannon while her parents were out to dinner. According to Camberly, she was five years old at the time of this incident.

At the close of the State’s case, Crispino moved for judgment of acquittal, arguing that, with regard to the charges that pertained to Shannon J., the State had failed to establish that the acts occurred between July 7, 1999 and July 6, 2000, the time frame set forth in Counts Four through Six of the Criminal Information. Crispino conceded, however, that the evidence, viewed in the light most favorable to the State, established that offenses pertaining to Camberly J. did occur between January 6, 2000 and January 5, 2001, the time frame set forth in Counts One through Three of the Criminal Information. The trial judge denied Crispino’s motion, finding that the State did not need to prove that the alleged offenses occurred within the time frames set forth in the Criminal Information. Crispino took the stand and testified that he only babysat the sisters during the time period between 2003 and 2005.

In addition, Crispino’s father testified that he knew that his son began to babysit Shannon J. and Camberly J. in the spring of 2003, although he did not know whether his son ever babysat ³⁷ the girls before November 2001. At the close of his case, Crispino renewed his motion for judgment of acquittal, reiterating the arguments made during his previous motion and adding that “there was no babysitting during the time of the indictment.” Finding that there was sufficient evidence to go to the jury, the judge denied Crispino’s motion. The judge, thereafter, gave instructions to the jury, some of which related to the specific charges against Crispino that pertained to Shannon J.: [THE COURT]: The Defendant is charged with child abuse, sexual abuse. Child abuse is sexual molestation or exploitation of a child under 18 caused by a person who has permanent or temporary care, custody, or responsibility for the supervision of a child.

In order to convict the Defendant of child abuse, the [S]tate must prove, 1, that the Defendant had at the time— at that time permanent or temporary care, custody, or responsibility for the supervision of Shannon J[.], 2, that Shannon J[.] was at that time under 18 years of age, and 3, that the Defendant sexually molested or exploited Shannon J[.] by licking her vagina and/or kissing her. [T]he Defendant is charged with the crime of second degree sexual offense. In order to convict the Defendant of second degree sexual offense, the [S]tate must prove, 1, that the Defendant committed cunnilingus of Shannon J[.], 2, that Shannon J[.] was under 14 years of age at the time of the act, and 3, that the Defendant is at least four years older than Shannon J[.] Cunnilingus means that the Defendant applied his mouth to the sexual organ of Shannon J[.] In order to convict the Defendant of third degree sexual offense, the [S]tate must prove, 1, that the Defendant had sexual contact with Shannon J[.], 2, that Shannon J[.] was under 14 years of age at the time of the act, and 3, the Defendant is at least four years older than Shannon J[.] ³⁸ Sexual contact is the intentional touching of the victim’s genital area or other intimate parts for the purpose of sexual arousal or gratification or for the abuse of either party. It does not include acts commonly expressive of familial or friendly affection or acts for accepted medical purposes. Crispino’s counsel took exceptions to these instructions and requested a specific jury instruction requiring unanimity as to the specific act or acts that constituted child abuse.

Crispino’s counsel also contended that French kissing was not sufficient to constitute child abuse. Finally, Crispino’s counsel asserted that the jury instructions had to refer to the time frame alleged in the Criminal Information. The trial judge overruled the exceptions to the jury instructions, finding: [THE COURT]: I have looked at the pleadings repeatedly. I have—as [defense counsel] said—struggled in my belief ■with this.

I’ve always believed that the law was in both the criminal and the civil side that there certainly can be a variance between the proof and the pleadings, that the charging document is to be specific enough to put a Defendant on notice as to the particular offenses with which he is charged. In these kinds of cases where you’re dealing with very young children, the specificity is very difficult to ascribe. The kids have a tremendous amount of problems giving dates or times or even years or ages. We all saw that for four or five days.

I do think that Mr. Crispino was given appropriate notice. I note there was no bill of particulars filed seeking any tightening down or more specifics with respect to dates or times of these events. I note the public policy considerations noted in these cases about the importance of providing the children with an ability to give their testimony to the best of their ability. I do not hold them to some stringent requirement to know exactly when it was, what the atmosphere pressure ³⁹ was, or what the time of day was or that kind of thing.

I mean, the question boils down to me—and I’m going to put it on the record—is the [S]tate constrained to prove beyond a reasonable doubt each charge within the parameters of the document? That’s really what [defense counsel] says, and I’ve read Cooksey and maybe people will think I’m crazy whoever reads this; but having read everything else and trying to apply what I think is some practical common sense, I do not believe that a jury instruction has to be given to the jury for them to bring a fair verdict back based upon the evidence. And as a result, I am going to deny—certainly deny the exceptions. After closing arguments, the trial judge gave the jury a verdict sheet 2 that read as follows: 1.

In the matter of State of Maryland v. Dale A. Crispino, III do you find the Defendant Not Guilty or Guilty of Sexual Child Abuse against Camberly J[.]? Not Guilty Guilty 2. In the matter of State of Maryland v. Dale A. Crispino, III do you find the Defendant Not Guilty or Guilty of Second Degree Sexual Offense against Camberly J[.]? Not Guilty Guilty 3.

In the matter of State of Maryland v. Dale A. Crispino, III do you find the Defendant Not Guilty or Guilty of Sexual Child Abuse against Shannon J[.]? Not Guilty Guilty 4. In the matter of State of Maryland v. Dale A. Crispino, III do you find the Defendant Not Guilty or Guilty of Second Degree Sexual Offense against Shannon J[.]? Not Guilty Guilty ⁴⁰ 5.

In the matter of State of Maryland v. Dale A. Crispino, III do you find the Defendant Not Guilty or Guilty of Third Degree Sexual Offense against Shannon J[.]? Not Guilty Guilty This verdict sheet differed from that which was presented by Crispino’s counsel, because it omitted from each count any mention of the time frames set forth in the Criminal Information. After deliberations, the jury returned a guilty verdict on all counts. After his motion for a new trial was denied, Crispino was sentenced to ten years’ imprisonment, with all but five years suspended, as well as five years’ probation. 3 He was also required to register as a sex offender.

Crispino noted an appeal to the Court of Special Appeals, arguing that the he was denied a unanimous verdict, because the trial judge refused to give his requested jury instructions and that the lower court should have advised the jury that it had to agree that all of the offenses occurred during the time frame set forth in the Criminal Information. In an unreported opinion, the Court of Special Appeals affirmed, holding that, to convict Crispino of child sexual abuse, the jury was not required to be unanimous with regard to the specific act that Crispino committed against Shannon J., and that, further, the act of French kissing could serve as the basis of a conviction for child sexual abuse. In addition, the intermediate appellate court determined that the State was not required to prove that Crispino committed the alleged acts against Shannon J. and Camberly ⁴¹ J. within the time period set forth in the Criminal Information, thus making Crispino’s requested jury instructions incorrect statements of law. Standard of Review In Sidbury v. State, 414 Md. 180, 186 , 994 A.2d 948, 951 (2010), we set forth the appropriate standard of review in a case involving jury instructions: Rule 4-325(a), governing instructions to the jury, provides: The court shall give instructions to the jury at the conclusion of all the evidence and before closing arguments and may supplement them at a later time when appropriate.

In its discretion the court may also give opening and interim instructions. The decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion. Roary v. State, 385 Md. 217, 237 , 867 A.2d 1095, 1106 (2005); see Lovell v. State, 347 Md. 623, 657 , 702 A.2d 261, 278 (1997) (“Whether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.”); see also Brogden v. State, 384 Md. 631, 640-41 , 866 A.2d 129, 134 (2005); Smith v. State, 371 Md. 496, 508 , 810 A.2d 449, 456 (2002). Discussion In his first question, Crispino argues that the trial judge refused “to instruct the jury to unanimously determine which specific act or acts [Crispino] committed as described by Shannon [J.] or to determine if he committed all of the acts described.” Absent this instruction, Crispino contends, it is impossible to determine that there was unanimity among the jurors as to which incident (or incidents)—one or both of the acts of eunnilingus or one or both of the acts of French kissing—that the jurors thought Crispino committed; Crispino also disputes that French kissing could constitute child sexual abuse. ⁴² Conversely, the State argues that Crispino was not entitled to his request for unanimity as to the specific act constituting the sexual abuse, because the abuse itself is the “gravamen” of the crime.

Therefore, according to the State, the jury only needed to agree that Crispino caused child sexual abuse to Shannon J.; it did not have to agree as to which specific act constituted the child abuse. Moreover, the State contends that all of the incidents alleged by Shannon J., including French kissing, would constitute child sexual abuse. The first issue that we must consider is whether French kissing can form the basis of a child sexual abuse conviction. A French kiss is “an open-mouthed kiss usu[ally] involving tongue-to-tongue contact,” Merriam-Webster’s Collegiate Dictionary 500 (11th ed.2005), or a “kiss in which the tongue enters the partner’s mouth.” American Heritage Dictionary 702 (4th ed.2006).

In the present case, the context of the French kissing, according to Shannon J., was on one occasion for “ten minutes,” and in another for “ten to [fifteen] minutes,” while Crispino was on top of her in her bed. Child sexual abuse is defined in Maryland Code (1957, 1996 Repl-Vol.), Article 27, Section 35C, 4 as: § 35C. Causing abuse to child. (a) Definitions.— (1) In this section the following words have the meanings indicated.

(2) “Abuse” means: (ii) Sexual abuse of a child, whether physical injuries are sustained or not. ⁴³ (6)(i) “Sexual abuse” means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member. (ii) “Sexual abuse” includes, but is not limited to: 1. Incest, rape, or sexual offense in any degree; 2. Sodomy; and 3.

Unnatural or perverted sexual practices. When examining the breadth of conduct that fell under the umbrella of child sexual abuse in Section 35C and also falls within the current iteration of the child abuse statute, we consistently have observed that the Legislature intended for the statute to cover a wide range of conduct. In Degren v. State, 352 Md. 400 , 722 A.2d 887 (1999), the issue presented involved determining whether a wife could be convicted of child sexual abuse under Section 35C for her failure to prevent the sexual molestation or exploitation of a minor child by her husband. “[TJaking into consideration the purpose of the child abuse statute, the amendments in which the Legislature generally expanded the scope of liability and actions constituting child abuse ... and the modern trend in broadly recognizing and punishing all forms of child abuse,” we held that Degren’s failure to prevent the abuse constituted an “ ‘act that involved molestation or exploitation of a child.’ ” Id. at 424 , 722 A.2d at 899 , quoting Section 35C(a)(6)(i). In so holding, we noted that the “word ‘involves’ connotes a broad sense of inclusion, such as an act relating to sexual molestation or exploitation,” and “expand[ed] the scope of the word ‘act’ from just the deed of molestation or exploitation into something done by the accused that relates to the molestation or exploitation.” Id. at 419 , 722 A.2d at 896 .

We further observed that, “[b]y clarifying that sexual abuse need not necessarily lead to physical injuries in order to be prosecuted, the [Legislature recognized the extensive emotional, psychological, or physical damage that sexual abuse can cause a child,” id. at 421 , 722 A.2d at 897 , and “through its various changes to the ⁴⁴ language of the statute, consistently expanded its scope and applicability to better achieve the goal of protecting ‘children who have been the subject of abuse.’ ” Id. at 419 , 722 A.2d at 896 (citation omitted). See also Brackins v. State, 84 Md.App. 157, 162 , 578 A.2d 300, 302 (1990) (in finding that the defendant’s unbuttoning of the minor victim’s blouse and taking semi-nude Polaroid photographs of her constituted sexual abuse under Section 35C, determining that, “[t]o be convicted of exploitation and, therefore, child abuse ... [t]he State need only prove, beyond a reasonable doubt, that the parent or person having temporary or permanent custody of a child took advantage of or unjustly or improperly used the child for his or her own benefit.”). More recently, in Tribbitt v. State, 403 Md. 638 , 943 A.2d 1260 (2008), we addressed whether Section 3-602 of the Criminal Law Article, Maryland Code (2002, 2007 Supp.), Section 3-602, the current iteration of the child abuse statute, derived without substantive change from Section 35C, required that a defendant’s conduct had to be “otherwise criminal” in order to be convicted of sexual abuse under the statute. Tribbitt, a teacher and volleyball coach, was accused of, inter alia, grabbing a student’s “butt” and “inner thighs,” rubbing the victim’s “vaginal area,” and sticking his hand down the victim’s pants.

Id. at 642 ,' 943 A.2d at 1262 . In holding that Tribbitt’s conduct was criminal under the statute, we stated, “[t]o limit the definition of ‘sexual abuse’ to otherwise criminal acts would ignore the Legislature’s statement that ‘[sjexual abuse means an act that involves sexual molestation or exploitation of a minor,”’ and “would re-draft the statute to state that ‘sexual abuse’ means an otherwise criminal act that involves the sexual molestation and exploitation of a minor.’ ” Id. at 649 , 943 A.2d at 1266 . Crispino argues, nonetheless, that, because French kissing is not specifically enumerated in the statute, it is not prohibited. It is clear, however, that French kissing need not be an enumerated act, according to the express words of the statute, which state that “ ‘Sexual abuse’ includes, but is not ⁴⁵ limited to ” the list of enumerated acts in Section 35C(a)(6)(ii).

(emphasis added). We had occasion, in Degren , to emphasize the nonexclusive nature of the enumerated acts: Section 35C(a)(6)(ii) enumerates actions describing types of sexual abuse, but the general phrase, “Sexual abuse includes, but is not limited to” precedes the enumerated list and states specifically that the list is not exhaustive. (Emphasis added.) Furthermore, given general legislative policy and the purpose of the child abuse statute to protect minors from abuse, we find it difficult to believe the General Assembly chose to limit the forms of sexual abuse punishable to only those listed in section 35C(a)(6)(ii). Therefore, exercising ejusdem, generis in this context would limit the meaning of sexual abuse and “subvert its obvious purpose.” Blake [v. State ], 210 Md. [459,] 462, 124 A.2d [273,] 274 [ (1956) ]. 352 Md. at 428 , 722 A.2d at 900 ; see also Tribbitt, 403 Md. at 657 n. 14, 943 A.2d at 1271 n. 14 (noting that, “[t]he general terms, defining sexual abuse as ‘an act that involves sexual molestation or exploitation ... ’ precede the specific list of items,” thus “providing] even further indication that the Legislature intended the list of items in the [child abuse statute] to be illustrative.”).

French kissing is, in itself, an intimate act that has a sexually exploitive effect. In the context about which Shannon J. testified, further, the act of French kissing a minor on one occasion for “ten minutes,” and in another for “ten to [fifteen] minutes,” while Crispino, an adult, was on top of her in bed, was clearly, under Section 35C, an “act that involve[d] [the] sexual molestation or exploitation of a child.” 5 ⁴⁶ In finding that French kissing constitutes an act prohibited by Section 35C, we also find persuasive cases decided by our sister jurisdictions, in which French kissing was also not specifically enumerated in their analogous child abuse statutes. In State v. Stout, 34 Kan.App.2d 83 , 114 P.3d 989 (2005), the Kansas intermediate appellate court considered whether French kissing could constitute lewd touching under Kan. Stat. Ann. § 21-3520 (a)(8) (2004 Supp.), which prohibits a teacher from engaging in “sexual intercourse, lewd fondling or touching, or sodomy” with a