Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Cripino v. State – Child Sexual Abuse Case

Cripino v. State, 417 Md. 31 (December 17, 2010)

Defendant in this case petitioned the Court of Special Appeals followed by the Court of Appeals on the basis of three questions, whether French kissing falls within the parameters of the child sexual abuse statute, whether the trial court erred in its refusal to give jury instructions requiring unanimity as to the specific act on which the jury was basing its guilty verdict, and whether the trial court abused it discretion in refusing to give a jury instruction that they must find that the alleged criminal act occurred during the times set forth in the Criminal Information.

Defendant was accused of engaging in French kissing and cunnilingus with a five and six year old over the course of two years. During this time the defendant was said to be babysitting the accusers. Defendant was convicted of two counts of child sexual abuse, two counts of second degree sexual offense, and one count of third degree sexual offense. He was sentenced to ten years, with all but five being suspended, and five years of probation.

The defendant argued that French kissing was not sufficient to constitute child abuse, which the CSA and COA disagreed with. In relation to the child abuse statute, the legislature intended for the statute to cover a wide range of conduct. 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.

As to the argument that the court must instruct the jury that there must be unanimity on the specific act on which they jury was basing its guilty verdict, the COA affirmed the trial courts refusal of this instruction. The court determined 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. Therefore, the trial courts denial of the defendants requested instruction was appropriate. 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.

The final question which the COA addressed in this case was if the jury should have been instructed that they must find that the alleged criminal act occurred during the times set forth in the Criminal Information. The COA determined that requiring specific dates in a child abuse case would be unreasonable. Because the victims in this case were aged five and six at the time of the offense, it would not be reasonable to expect them to remember specific dates or times as to the occurrence of the offense. As to this matter, the COA affirmed the lower courts and denied the defendants argument.

In this case the COA affirmed the trial court and CSA’s decision of the jury instruction refusal as to the specific act of the crime and the time set forth in the Criminal Information

COA affirmed the lower courts ruling.