CRISPINO v. STATE

y 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 `[s]exual 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 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 "provid[ing] 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."

To the extent that Crispino urges us to apply the rule of lenity to our interpretation of Section 35C, we note that "[t]he rule of lenity . . . is a maxim of statutory construction which serves only as an aid for resolving an ambiguity and it may not be used to create an ambiguity where none exists." Tribbitt, 403 Md. at 646, 943 A.2d at 1265, quoting Jones v. State, 336 Md. 255, 261, 647 A.2d 1204, 1207 (1994). The rule of lenity does not apply in this case, because ambiguity is not implicated here.

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 student. Id. at 992. The court found that it did, reasoning, "[a] french kiss or tongue kiss is indisputably a touching; moreover, it is a touching that is not necessarily innocent, dependent upon the circumstances. Given the weight of authorities acknowledging that such kissing can be intimate sexual contact, we decline to hold as a matter of law that such contact cannot be lewd touching. . . ." Id. at 993.

In Altman v. State, 852 So.2d 870 (Fla.Dist.Ct.App. 2003), the Florida intermediate appellate court faced a similar question, namely whether French kissing was prohibited by Fla. Stat. § 800.04(1), which "prohibit[ed] a person from handling, fondling, or assaulting any child under sixteen in a lewd, lascivious, or indecent manner." Id. at 874. In finding that French kissing constituted an act prohibited by the statute, the court determined that "an ordinary person of common intelligence would understand that tongue-kissing a minor child is sexual contact." Id. at 875-76.

Similarly, in People v. Calusinski, 314 Ill.App.3d 955, 247 Ill.Dec. 956, 733 N.E.2d 420 (2000), cert. denied, 193 Ill.2d 590, 253 Ill.Dec. 4, 744 N.E.2d 286 (2001), the Illinois intermediate appellate court considered whether, in a child sexual abuse case, French kissing was prohibited by 720 Ill. Comp. Stat. Ann. 5/12-15(a)(1) (West 1998), a criminal sexual abuse statute that prohibited, inter alia, "an act of sexual conduct by the use of force or threat of force." Id., 247 Ill.Dec. 956, 733 N.E.2d at 425. In finding that French kissing could be considered "sexual conduct," the court reasoned that, "[d]espite the defendant's assertions, we cannot ascribe an innocent motive to [French kissing]. . . . [A] "french kiss" is an inherently sexual act which generally results in sexual excitement and arousal." Id., 247 Ill.Dec. 956, 733 N.E.2d at 426.

Crispino, thereafter, argues that the jury would have to determine the specific sexual act upon which they were unanimous. Relying on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), Crispino contends that "unanimity in the jury verdict is violated if a crime in a particular charge can be committed in a number of ways, but the jury is not instructed that it must be unanimous in its determination of the facts essential to an element of the crime." In Richardson, after being convicted of violating a federal statute that prohibited individuals from engaging in a "continuing criminal enterprise," which was "define[d] . . . as involving a Violat[ion]' of the drug statutes where `such violation is a part of a continuing series of violations,'" Richardson argued that the trial judge should have instructed the jury that it had to be unanimous with regard to the three offenses that made up the "series of violations." Id. at 815, 119 S.Ct. at 1709, 143 L.Ed.2d at 991. The Supreme Court agreed, holding that each "violation" constituted a separate element of the offense and thus required juror unanimity. Id. at 818-19, 119 S.Ct. at 1710-11, 143 L.Ed.2d at 993. In reaching this holding, however, the Court was careful to note that:

[A] jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime. Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement — a disagreement about means — would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely that the defendant had threatened force.

Id. at 817, 119 S.Ct. at 1710, 143 L.Ed.2d at 992 (citations omitted). The Court further noted that,

[i]f the statute creates a single element, a "series," in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three.

Id. at 818, 119 S.Ct. at 1710, 143 L.Ed.2d at 992-93. The concept that jurors need not be unanimous with regard to a specific act, but rather, whether all elements of an offense are proven is well-settled, as the Supreme Court observed in Schad v. Arizona, 501 U.S. 624, 649, 111 S.Ct. 2491, 2506, 115 L.Ed.2d 555, 577 (1991) (Scalia, J., concurring), wherein the Court stated that "it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission."

We have recognized, in Rice v. State, 311 Md. 116, 532 A.2d 1357 (1987), that a jury need not be unanimous with regard to the mode of commission of a crime, unless it constituted an element of the offense. In Rice, we considered whether, in a case in which the defendant was charged with violating the consolidated theft statute, a trial judge erred in failing to instruct the jury "that it could convict the defendant of theft only if all twelve jurors agreed unanimously that the defendant had committed all the elements of larceny under subsection (a) [of the consolidated theft statute] or all the elements of possession of stolen property under subsection (c) [of the statute]." Id. at 122, 532 A.2d at 1360. In holding that such an instruction was not necessary, we noted that each subsection "share[d] the common feature that the property was wrongfully taken from the owner." Id. at 136, 532 A.2d at 1367, and that,

[w]hatever variance there may be between the elements of (a) and (c), it is clear that violation of either leads to the same result. In either case the defendant has appropriated the property of another person without that person's consent. It is this that imparts to [the subsections] their wrongful character, and, we think, imparts to them the same wrongful character. We know of no constitutional constraints flowing from the jury unanimity clause that require a focus on the specific mechanics of a wrongful appropriation at the expense of the result of the appropriation. To the contrary, we think this identity of result is properly accorded great weight in resolving the question whether [each subsection] are one crime.

Having compared the above elements of [the] subsections, we are satisfied that on balance (a) and (c) are not autonomous offenses but rather one crime defined two ways. It follows that the jury unanimity sought by appellant is not constitutionally required.

Id.

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. In Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000), we observed that, under Section 35C,

the gravamen of the offense is not the sexual act itself, which is punishable in its own right under other statutes, but rather the abuse of the child. That abuse can as easily arise from several qualifying acts as from one. [A] charge of sexual child abuse may be sustained on evidence that would not support a conviction under the sexual offense, rape, sodomy, or perverted practice laws.

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Abuse, as defined in § 35C is thus a crime that can be committed both by a single act and through a continuing course of conduct consisting of multiple acts.

Id. at 23-24, 752 A.2d at 618 (emphasis added).

In the present case, Crispino's "abuse" itself — and not a single act of French kissing or cunnilingus — was the "gravamen" of the crime. The jury instruction, then, needed, as it did, to require unanimity with regard to Crispino sexually abusing Shannon J., not that the jurors be unanimous with regard to the specific act (or acts) that supported a finding of abuse. Here, the French kissing and the cunnilingus constituted the underlying facts that made up the element of "abuse," the "gravamen" of the crime. Thus, the instruction given that asked the jury to determine, along with the age and custody element of the offense, whether Crispino "sexually molested or exploited Shannon J[.] by licking her vagina and/or kissing her," was appropriate.

To the extent that Crispino asks us to adopt a "genuine possibility of juror confusion" test, we decline to do so. The federal cases upon which Crispino relies for this proposition each acknowledge that a general unanimity instruction suffices with regard to the elements of the offense, unless there is a genuine possibility of juror confusion. See, e.g., United States v. Holley, 942 F.2d 916 (5th Cir. 1991) (where specific statements made by the defendant are allegedly false, unanimity was required as to which statements were perjured); United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir. 1988) (noting that general unanimity instruction suffices unless there is a "genuine possibility of juror confusion"); United States v. Echeverry, 719 F.2d 974 (9th Cir. 1983) (where juror notes indicated confusion over multiple conspiracies, there was a genuine possibility of juror confusion). As noted, each incident alleged was sufficient to form a basis for sexual abuse under Section 35C, thus eliminating any possibility of juror confusion.

In his second question, Crispino asserts that the trial judge abused his discretion in declining to instruct the jury as well as indicate on the Verdict Sheet that the jury must find that he committed all the acts described by the children "within the specific time frame set out [by the State] in each count [of the Criminal Information]." He essentially contends that the jury did not appropriately weigh his testimony and that of his father regarding the fact that he did not babysit the children in 2000 and 2001, so that he could not have been in "custody" of the children, an essential element of the child abuse statute, set forth in Section 35C.

Section 35C stated in relevant part:

(a) Definitions. — (1) In this section the following words have the meanings indicated.

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(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.

Emphasis added. Section 3-602 of the Criminal Law Article, Maryland Code (2002, 2010 Supp.), contains nearly identical language:

(a) Definitions. — (1) In this section the following words have the meanings indicated.

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(4)(i) "Sexual abuse" means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.

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(b) Prohibited. — (1) A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a minor may not cause sexual abuse to the minor.

The State counters that a "variance between the dates alleged in a charging document and the dates proven at trial" is certainly countenanced by Maryland precedent. The State further contends that Crispino's challenge regarding his lack of "custody" of the children during the dates alleged in the charging document relates to the sufficiency of the evidence, rather than the subject of a jury instruction.

In his framing of the custody issue, Crispino apparently presents three distinct, although related concerns. He refers first to Carter v. State, 35 Md.App. 224, 370 A.2d 183 (1977), a case pertaining to variance. A variance has been defined as "a difference between the allegations in a charging instrument and the proof actually introduced at trial." Black's Law Dictionary 1692 (9th ed. 2009). With respect to a variance from the time period alleged and that adduced at trial, we have stated that the time period proven need not coincide with the dates alleged in the charging document, so long as the evidence demonstrates that the offense was committed prior to the return of the indictment and within the period of limitations. See Chisley v. State, 236 Md. 607, 203 A.2d 266 (1964) (reasoning that an eyewitness identification was sufficient to sustain a robbery conviction, despite a variance between the date alleged in the indictment and the date shown in the testimony); Fulton v. State, 223 Md. 531, 165 A.2d 774 (1960) (determining that defendant's testimony and admissions to police officers were sufficient to sustain a conviction for possession of marijuana, although the State failed to establish possession on August 3, 1959, the date alleged in the indictment); Greenwald v. State, 221 Md. 245, 157 A.2d 119 (1960) (reasoning that evidence of intent to form a conspiracy several years prior to the date alleged in the indictment was properly admitted); Brunner v. State, 154 Md. 655, 141 A. 346 (1928) (reasoning an indictment alleging "the sale of intoxicating liquor" "on or about" June 1, 1927, was sufficient because the date was not an essential element of the offense).

In Carter v. State, 35 Md.App. 224, 370 A.2d 183 (1977), James A. Carter appealed his conviction for three counts of receiving and retaining a credit card, "which he knew was delivered under mistake, with the intent to use it or transfer it to a person other than the issuer or cardholder." Carter asserted that the State failed to prove that any of the offenses occurred between August 1, 1974 and October 27, 1974, as alleged in the indictment. The Court of Special Appeals disagreed, reasoning that there was sufficient testimony to support Carter's conviction within the period alleged. The court noted, for example, that Carter's employee, Brooks, testified that Carter gave him a credit card in September, 1974 to make business-related purchases. The court further noted that when Carter finally surrendered the other two cards in February, 1975, he told police that he was keeping the cards for possible "use in an emergency." Id. at 229, 370 A.2d at 187.

Here, Crispino was convicted of acts constituting child abuse and these incidents occurred prior to the return of the Criminal Information and within the period of limitations. As a result, there was no variance.

Crispino also apparently challenges the specificity of the Criminal Information, or lack of specific dates, citing State v. Mulkey, 316 Md. 475, 560 A.2d 24 (1989) and Malee v. State, 147 Md.App. 320, 809 A.2d 1 (2002). In Mulkey, the defendant was charged with one count of child abuse and twelve counts of third degree sexual offense, naming two children under age fourteen as the victims. The indictment listed the dates of the offenses as June 1, 1982 to September 6, 1982, June 1, 1983 to September 5, 1983, and June 1, 1984 to September 3, 1984, or three consecutive summers. The trial judge dismissed the indictment for lack of specificity, reasoning that "the indictment is a gunshot remedy where they lop in several years and take a season of the year for several years running. . . ." Id. at 479, 560 A.2d at 26. We reversed, determining that the indictment stating that the offenses occurred over three consecutive summers was valid. In so doing, we relied upon Ledbetter v. United States, 170 U.S. 606, 612, 18 S.Ct. 774, 776, 42 L.Ed. 1162, 1164 (1898), in which the Supreme Court opined as follows:

Good pleading undoubtedly requires an allegation that the offense was committed on a particular day, month, and year, but it does not necessarily follow that the omission to state a particular day is fatal upon a motion in arrest of judgment. Neither is it necessary to prove that the offense was committed upon the day alleged, unless a particular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment and within the statute of limitations, will be sufficient.

(citations omitted). We emphasized, moreover, that requiring specificity in dates in a child abuse case would be unreasonable:

We recognize the unique problems involved in a child or sex abuse case where the victim is of tender years. The ability of a child to definitely state the date or dates of the offenses or to narrow the time frame of such occurrences may be seriously hampered by a lack of memory.

Mulkey, 316 Md. at 482, 560 A.2d at 27. See also Malee, 147 Md.App. 320, 809 A.2d 1 (sustaining a child abuse conviction when the child identified the defendant, testified to incidents of sexual abuse, and the six-month time frame alleged in the indictment coincided with the period in which the child lived with his mother and the defendant); Harmony v. State, 88 Md.App. 306, 594 A.2d 1182 (1991) (sustaining a child abuse conviction when the child alleged multiple acts of sexual abuse by a relative from 1980 to 1988).

In the present child sexual abuse case, Shannon testified that, while Crispino was alone with her, when she was "six or seven," he engaged in several acts of abuse including French kissing and cunnilingus. Because Shannon was born on July 7, 1992, her testimony roughly coincides with the dates alleged in the Criminal Information, namely July 7, 1999 to July 6, 2000. Similarly, Camberly testified that Crispino "licked [her] butt and vagina" while he was babysitting her when she was five years old. Camberly had been born on January 6, 1995, so the dates alleged, January 6, 2000 and January 5, 2001, also coincide. The children testified with appropriate specificity — exact date and time would be an impossible burden for a child to sustain.

Crispino finally emphasizes from his testimony and that of his father's that "he never acted as a babysitter" during the period alleged in the Criminal Information, so that he could not have been in "custody" of the children, an essential element of Section 35C. Crispino argues that the jurors should have been able to consider whether or not he could have been in custody of the children during the time frame of the charging document, in addition to the judge who did consider whether the evidence of custody was sufficient.

In Hebron v. State, 331 Md. 219, 232-33, 627 A.2d 1029, 1036 (1993), we recognized, however, that the trial judge is the sole determiner of sufficiency of the evidence:

Until 1949, the Maryland Constitution provided that "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact." See 1867 Md. Const. art. XV, § 5; 1864 Md. Const. art. XII, § 4; 1851 Md. Const. art. X, § 5. At that time, it was the jury that determined the definition of the crime charged, as well as the legal effect of the evidence, Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889). In 1950, the voters adopted the amendment proposed by ch. 407, Acts of 1949, which added to then art. XV, § 5, "except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." See also ch. 596, Acts of 1949, implementing the new provision by statute. Current Article 23 of the Maryland Declaration of Rights, which now reads, "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction," makes clear that the sufficiency of the evidence is a matter of law for the judge to determine. We have held that this provision means that, although the jury is the sole judge of the facts, the jury's role with respect to the law is limited to resolving conflicting interpretations of the law of the crime and determining whether that law should be applied in dubious factual situations.

(Emphasis added). Crispino, nonetheless, conflates the role of the jury with that of the judge, alleging that the jurors should have had the opportunity to judge whether the evidence of his custody was sufficient, in light of his testimony that he babysat only after 2003. In addition to the fact that Crispino, in his motions for judgment of acquittal, asserted that "there was no babysitting during the time of the indictment" — motions that the judge denied — both Shannon and Camberly indicated that Crispino engaged in acts of child sexual abuse while he was alone with them. 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.

As a result, Crispino's challenges to the jury instructions must fail; his convictions are affirmed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.