Opinion
18-2022
02-27-2023
STATE OF MARYLAND v. KEITH KRIKSTAN
Argued: December 6, 2022
Circuit Court for Charles County Case No. C-08-CR-18-000694
Watts Hotten Booth Biran Gould Eaves Battaglia, Lynne A. (Senior Justice, Specially Assigned), JJ.
Hotten, Eaves, and Battaglia, JJ., dissent.
OPINION
Watts, J.
In Maryland, a criminal statute governing child sexual abuse prohibits, among other things, a "person who has permanent or temporary care or custody or responsibility for the supervision of a minor" from causing "sexual abuse to the minor." Md. Code Ann., Crim. Law (2002, 2021 Repl. Vol.) ("CR") § 3-602(b)(1). For conviction under the statute, the person must have care, custody, or responsibility for supervision of the minor at the time the person engages in "an act that involves" sexual exploitation of the minor. CR § 3-602(a)(4)(i).
In this case, we must determine whether the evidence was sufficient to support the conviction of Keith Krikstan, Respondent, for sexual abuse of a minor. The issue is whether Krikstan engaged in acts that involved sexual exploitation of the minor at a time that he had responsibility for the minor's supervision. At bottom, this case raises the question of whether, for purposes of the sufficiency of the evidence to establish a conviction under CR § 3-602, the in-person conduct of an adult who has responsibility for the supervision of a minor and is indisputably sexually exploiting the minor by electronic communications at times when the person does not have responsibility for the minor's supervision should be viewed in isolation, or whether the in-person conduct should be assessed in the context of other known sexually exploitative acts.
In this case, 30-year-old Krikstan, a substitute teacher, was charged with sexual abuse of a minor after his out-of-school sexually exploitative relationship with A.G., a 12-year-old middle school student, came to light. Krikstan, who worked on-and-off as a substitute teacher at A.G.'s middle school, engaged in a sexually exploitative relationship with the 12-year-old student through cell phone text messages, an electronic messaging application, and video chats outside of class. Krikstan first met A.G. when he was teaching as a substitute in her seventh-grade science class. Krikstan began texting A.G., quickly becoming what she considered "more than" a friend. Krikstan professed his love for A.G., doing so over 100 times. Krikstan asked to see A.G.'s "butt," either clothed or bare. A.G. sent photos of her buttocks, sometimes bare, to Krikstan 10 to 15 times. According to A.G., Krikstan showed her part of his penis on several occasions when they video chatted. In other conversations, Krikstan discussed his desire to have sex with A.G.
After a few weeks of these communications, A.G. told Krikstan that she was interested in a 21-year-old man named Joey. Krikstan became upset, told A.G., among other things, that he had "loved" her but was "done[,]" and wished her a "great life with Joey." A.G. testified that Krikstan "was mad at" her and that he sent her a message through Snapchat telling her the things above. A.G. saved the message because parts of it made her "feel good." In the midst of this emotional turmoil, Krikstan returned to A.G.'s school as a substitute teacher and discussed with her his negative feelings about her having expressed an attraction to the 21-year-old man. Specifically, Krikstan substitute taught A.G.'s math class. Once there, Krikstan gave A.G. a late pass to stay after math class. After class, while A.G. was still in the classroom, Krikstan conveyed to her that he was mad and upset with her because of her feelings for the other adult man.
After this conversation at school, Krikstan resumed sexually exploiting A.G. regularly, by telephone and electronically outside of school hours, telling her that he loved her and wanted to have sex with her. These electronic communications were often intensely romantic and graphically sexual. One exchange involved Krikstan instructing A.G. how to masturbate using a pillow, which she did, and afterward Krikstan messaged the 12-year-old that he had visualized her "riding a cock." None of the explicitly romantic or sexual exchanges occurred at school.
Approximately two months after Krikstan substitute taught A.G.'s math class, Krikstan again elected to substitute teach one of A.G.'s classes after another conflict about A.G's feelings for the other man and emotional conversations with A.G. That day, another student reported to a school official the nature of the relationship between Krikstan and A.G., and Krikstan was later arrested. Krikstan was convicted of sexual abuse of a minor.
Despite the circumstances of the numerous sexually exploitative acts by Krikstan through electronic communications that preceded him expressing his anger to A.G. about her attraction to another man in school after her math class, and that his sexual exploitation of A.G. continued after the conversation in school, the Appellate Court of Marylandreversed his conviction for sexual abuse of a minor, theorizing that he had not "said or implied anything sexual" in his conversation with the minor in school. Keith Krikstan v. State, No. 2279, Sept. Term, 2019, 2022 WL 1284081, at *1, *6 (Md.App. Ct. Apr. 29, 2022)
The State contends that the Appellate Court of Maryland erred because the in-school conversation after A.G.'s math class involved the sexual exploitation outside of school, providing sufficient evidence for conviction. The State relies on our definition of an act that "involves" sexual exploitation as an act "relating to" such exploitation, Degren v. State, 352 Md. 400, 419, 722 A.2d 887, 896 (1999) (cleaned up), and argues that the inschool conversation was a continuation of a discussion that arose in the exploitative relationship and related to sexual exploitation, as a 30-year-old teacher expressed jealousy to a 12-year-old about her affection for another adult man. Krikstan contends that the Appellate Court of Maryland properly vacated his conviction because there was insufficient evidence that he was responsible for A.G.'s supervision at any time that his sexually exploitative conduct occurred. This is so, Krikstan argues, because the State did not present sufficient specific evidence of his intention with respect to the in-school conversation after math class, or the content of the conversation or how the conversation benefited him.
Against this background, we hold that the evidence was sufficient to support Krikstan's conviction of sexual abuse of a minor under CR § 3-602. We conclude that to support a conviction under CR § 3-602, where a person has sexually exploited a minor through electronic communications at a time that the person did not have care, custody, or responsibility for the supervision of the minor, there must be a showing that the person engaged in an act that related to, affected, or was a part of the out-of-school sexual exploitation of the minor when the person had care, custody, or responsibility for supervision of the minor. The occurrence of sexual exploitation outside of the perpetrator's time of responsibility for supervision of the minor may be used to establish child sexual abuse under CR § 3-602, but there must be a showing that the perpetrator engaged in an act relating to, affecting, or that was a part of the sexual exploitation while the perpetrator was responsible for the care, custody, or supervision of the minor. That the act at issue relates to, affects, or is a part of sexual exploitation of the minor need not be shown through direct evidence; rather, the showing may be accomplished though evidence that permits a rational trier of fact to find that the act is related to the sexual exploitation of the minor. In addition, the act taken while the person is responsible for the care, custody, or supervision of the minor need not be of a sexual or criminal nature. It is enough that the act relates to, affects, or is a part of the sexual exploitation of the minor.
Our holding today flows directly from Degren, 352 Md. at 419, 722 A.2d at 896, a case in which we affirmed a conviction for child sexual abuse under Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 35C (a predecessor to CR § 3-602), and in doing so considered the meaning of the phrase "involves sexual molestation or exploitation" and explained that the word "involves" "connotes a broad sense of inclusion, such as an act relating to sexual molestation or exploitation." (Citing Merriam-Webster's Collegiate Dictionary 617 (10th ed.) ("defining 'involve' as 'to engage as a participant' or 'to have an effect on' and 'involved' as 'being affected or implicated'")) (emphasis in original). Our conclusion is also consistent with our holding in Walker v. State, 432 Md. 587, 622-23, 69 A.3d 1066, 1087-88 (2013), in which we discussed that sexual exploitation is not limited to incidents involving physical contact and can include a wide range of behavior. In Walker, id. at 622, 69 A.3d at 1087, we explained that:
Our review of Maryland case law leads us to several conclusions about [CR] § 3-602. The statute . . . can encompass a wide range of behavior that need not, in itself, be criminal. Child sexual abuse can be committed as part of a single act or a series of actions and it is not necessary that the defendant physically touch the child in order to commit the crime. The context in which the abuse occurs matters and failing to act to prevent abuse can be criminal. Finally, exploitation requires that the defendant "took advantage of or unjustly or improperly used the child for his or her own benefit."(Quoting Degren, 352 Md. at 426, 722 A.2d at 900) (emphasis in original).
In this case, the evidence demonstrated that Krikstan's in-school conduct fell squarely within the meaning of the language of the statute providing that sexual abuse means an act that involves either sexual molestation or exploitation of a minor, regardless of whether physical injuries occur or not. In the classroom after math class, Krikstan discussed with A.G. his anger and demonstrated jealousy over her attraction to another adult man. At the time of the in-school interaction, A.G. had already informed Krikstan of her attraction to the other man in the context of a sexually exploitative relationship conducted through electronic communications, and Krikstan had already expressed his anger about the other adult man while communicating with A.G. during the existing out-of-school sexually exploitative relationship. And, after the in-school display of anger, Krikstan continued the out-of-school sexual exploitation, which included emotionally charged electronic communications about whether A.G. loved Krikstan or the other man.
A rational juror could easily have found that Krikstan's reiteration in the classroom of his angry, jealous reaction to A.G.'s feelings for another man related to, affected, or was a part of the ongoing sexual exploitation of A.G. outside of school. By returning to the classroom as her substitute teacher and discussing his anger with A.G. at school, Krikstan continued his sexual exploitation of the minor by conveying the same anger and jealousy that he had demonstrated earlier in an exploitative electronic communication, when he said he had "loved" her but was "done" with her. After his in-school demonstration of anger and jealousy about the other adult man, Krikstan resumed sexually exploiting A.G. outside of the classroom, including by sending her messages about the other adult man and, among other things, causing her to engage in acts of masturbation.
Under these circumstances, a rational fact-finder could readily have found beyond a reasonable doubt that Krikstan's expression of anger in the classroom about the other adult man was related to or affected the out-of-school sexually exploitative relationship and, indeed, was a part of or constituted a continuation of the exploitative relationship, given that Krikstan expressed the same sentiments in school that he had earlier in an inappropriate electronic communication and that he resumed the same type of sexually exploitative electronic communications with A.G. after the classroom conversation as he had engaged in with her before.
Under the language of the statute and our case law, it was not necessary for Krikstan specifically to say or imply anything sexual during the classroom conversation. The legislative history of the statute indicates an intent by the General Assembly that the statute be interpreted broadly to include a wide range of conduct and to protect children. With these principles and the evidence presented at trial in mind, it is clear that the evidence was sufficient for a rational juror to have found that Krikstan's in-school acts met the definition of conduct involving sexual exploitation of a minor.
Upon concluding that the evidence is more than sufficient to support Krikstan's conviction, we reverse the judgment of the Appellate Court of Maryland.
BACKGROUND
Krikstan was charged with sexual abuse of a minor and related offenses. The material facts are essentially undisputed. Krikstan was 30 years old when he met A.G. while substitute teaching in her seventh-grade science class. A.G. was 12. A.G. testified that during that class, in autumn of 2017, Krikstan asked her what a 12-year-old friend of hers "had told [A.G.] about him." A week later, Krikstan texted A.G., after receiving her phone number from the same 12-year-old friend, whom A.G. described as her best friend. According to A.G., after about a week of daily "[n]ormal conversation" by text between the two, Krikstan asked for her school schedule so that he could "keep an eye out" for her, which A.G. shared. Shortly thereafter, at Krikstan's request, Krikstan and A.G. began to communicate via Snapchat, a phone-based messaging application on which messages, photos, and videos can be sent, but will automatically disappear if they are not affirmatively saved.
Early in their interactions, Krikstan told A.G. that he "loved" and "wanted to be with" A.G.'s 12-year-old best friend, from whom he had gotten A.G.'s number. However, within a few weeks of communicating, Krikstan was telling A.G. that he loved her, and she said the same back to him. A.G. testified that their relationship at the time was one of "[f]riends with benefits" because she and Krikstan "were doing more than what friends would normally do." A.G. estimated that Krikstan told her that he loved her over 100 times.
Via Snapchat, Krikstan asked to see the 12-year-old's "butt," either clothed or bare. A.G. responded but did not send a photo, because she "knew it was wrong." When Krikstan asked again later the same day, A.G. sent a photo. She did so because Krikstan's request "felt forceful," and "[h]e had asked before and then asked again, so it felt like [she] had to." In explaining her decision to send the photo, A.G. testified that she "loved" Krikstan and that she felt that if she did not send the picture, she "would lose him" as "[a] person that would be there for [her]." Thereafter, A.G. sent photos of her buttocks, sometimes clothed, sometimes bare, to Krikstan 10 to 15 times, sometimes at his request and sometimes not. In addition, Krikstan began to communicate with A.G. nightly on FaceTime, an application on which video calls can be made via phone or computer; these video calls usually took place late at night or in the early morning hours after midnight. A.G. testified that, during these conversations, Krikstan showed her part of his penis via FaceTime 15 to 20 times.
After two-and-a-half to three weeks of Krikstan communicating with her, A.G. told him that she was interested in a 21-year-old man named Joey. A.G. testified that Krikstan "got upset." Krikstan sent her a message through Snapchat indicating that A.G. had "lost" two people "who really loved" her, and A.G. responded that she had caused him and herself "pain" that she "didn't want to feel again[.]" Krikstan then sent A.G. the following message through Snapchat:
Well I can't speak for him Bc who knows if he really did but I can speak for me . . . I loved u so much u were the highlight and the reason I got up Bc I couldn't wait to talk to u to spend all day talking to u to making u smile that beautiful smile looking at ur beautiful eyes and gorgeous lips I would of and almost did risk everything just to kiss u to hold u u were my dream and it
then just turned into a nightmare. Just like that. Fuck it I'm done Take care and hope u have a great life with Joey(Ellipsis in original). A.G. testified that she saved the above message in part because "what he said" made her "feel good[,]" as Krikstan called her "beautiful" and "was saying all these sweet things[.]"
[*]At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.