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Md. Jurors: No need for unanimity on means of sexual abuse

Jurors deliberating in a child sexual abuse case need not agree on the specific acts a defendant committed in order to find him or her guilty, Maryland’s top court unanimously ruled Tuesday.

The jurors must only agree on the fact that abuse was committed by that defendant, the Court of Appeals ruled in upholding the conviction of David Albert Crispino III.

Crispino was accused of performing oral sex on and French kissing two elementary school-age girls he was babysitting in Baltimore County in the early 2000s.

“While the jurors have to be unanimous with regard to each element of an offense, they need not be unanimous with regard to the means used by the defendant in committing the act,” Judge Lynne A. Battaglia wrote for the high court.

Crispino’s counsel had objected in vain to Baltimore County Circuit Judge Timothy J. Martin’s refusal to instruct jurors that they had to be unanimous with regard to specific acts he allegedly committed against his young accusers to find Crispino guilty.

The jury in 2007 convicted Crispino of two counts of child sexual abuse, two counts of second-degree sexual offense and one count of third-degree sexual offense for his actions toward the two sisters he babysat.

He was sentenced to 10 years in prison, with all but five years suspended, and five years’ probation. Crispino was also required to register as a sex offender.

The Court of Special Appeals upheld the convictions and sentence in an unreported decision.

In affirming the lower court, the Court of Appeals rejected the defense’s argument that French kissing cannot form the basis of a sexual abuse conviction.

Crispino’s attorneys, Thomas A. Pavlinic and Peter T. McDowell, said French kissing is not among the enumerated acts of abuse in the statute — Maryland Code, Article 27, Section 35C —  which lists incest, rape or sexual offense in any degree, sodomy and unnatural or perverted sexual practices.

But the high court said these offenses are not a complete list of acts constituting abuse under the statute. The law states that sexual abuse “includes, but is not limited to” the listed acts, the court said.

“When examining the breadth of conduct that fell under the umbrella of child sexual abuse … we consistently have observed that the Legislature intended the statute to cover a wide range of conduct,” Battaglia worte.

The court cited rulings in Kansas, Florida and Illinois holding that French kissing is abusive conduct, even though the states’ laws did not specifically list it as such.

Brian S. Kleinbord, of the state’s attorney’s office, agreed with the Court of Appeals.

“We thought it was pretty clear that French kissing a 7-year-old was child sexual abuse,” said Kleinbord, who heads the office’s criminal appeals division.

In their appeal, Pavlinic and McDowell also argued that Crispino could not be convicted of child sexual abuse because the indictment stated that the abuse occurred between 1999 and 2001, about two years before he babysat the children.

Crispino, therefore, could not have had “custody” — a required element of the criminal law — over the children when the abuse allegedly occurred, the attorneys said. The law defines child sexual abuse as the “sexual molestation or exploitation of a child by a parent or other person who has … custody or responsibility for supervision of a child.”

But the Court of Appeals said Martin, the trial judge, acted within his discretion when he decided the evidence was sufficient to link the dates of the babysitting and the time of the alleged abuse, regardless of the dates in the indictment.

The defense “conflates the role of the jury with that of the judge, alleging that the jurors should have the opportunity to judge whether the evidence of his custody was sufficient,” Battaglia wrote. “Certainly, the jurors could choose to disbelieve Crispino, but, more importantly, Crispino does not have the ability to resuscitate the sufficiency argument before the jury, because the trial judge had appropriately already made that determination.”

Pavlinic said he was “disappointed” with the deference the high court gave the trial judge in essentially setting aside the dates in the indictment.

“There was an inherent lack of fundamental fairness in how the proceedings evolved,” said Pavlinic, an Annapolis solo practitioner.

“We thought that the Court of Appeals [was] going to step in and level the playing field,” he added. “We thought the court was going to decide the case along fundamental fairness issues.”

McDowell, his co-counsel, is a Baltimore solo practitioner.

WHAT THE COURT HELD

Case:

Crispino v. State, CA No. 3, Sept. Term 2010. Reported. Opinion by Battaglia, J. Filed Nov. 9, 2010.

Issue:

Must jurors agree on defendant’s specific acts to find him or her guilty of child sex abuse?

Holding:

No; jurors need only be unanimous that child sex abuse occurred because the abuse itself is the gravamen of the crime.

Counsel:

Thomas A. Pavlinic and Peter T. McDowell for petitioner; Cathleen C. Brockmeyer for respondent.

RecordFax # 10-1109-20 (27 pages).