State v. Poulor

• Decision Date: 22 August 2019
• Docket Number: No. 20190017,20190017
• Citation: 932 N.W.2d 534
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Kanakai POULOR, Defendant and Appellant
• Court: North Dakota Supreme Court

932 N.W.2d 534

STATE of North Dakota, Plaintiff and Appellee

v.Kanakai POULOR, Defendant and Appellant

No. 20190017

Supreme Court of North Dakota.

Filed August 22, 2019

Ryan J. Younggren, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.

Leah R. Carlson, Fargo, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Kanakai Poulor appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We conclude the State did not violate the Confrontation Clause when it presented a video recorded forensic interview with the 8-year old minor complainant; the court did not abuse its discretion in admitting the complainant’s out-of-court statements about sexual abuse into evidence; and sufficient evidence supports the conviction for gross sexual imposition. We affirm.

I

[¶2] On May 11, 2017, Poulor, a family friend of the complainant, had come to the family’s home to visit and drink with the complainant’s father and uncle in their garage. Poulor went into the house several times to use the bathroom. While inside the home, he was alleged to have put his hand between the complainant’s legs inside her pants and her underwear. The complainant testified that Poulor came into the house four times, touching her in this manner. The complainant texted a message to her mother, who was at work, to "come home now." The complainant disclosed to her mother what Poulor had done when her mother came home from work that evening. The complainant and her family members subsequently went to Poulor’s house across the street and confronted him about the allegations. The police were called.

[¶3] Fargo Police Officer Jennifer Gustafson responded to the call from dispatch about a possible sexual assault. The officer arrived on scene and interviewed the complainant, who told her Poulor had touched her inappropriately when he had come into the house. On May 16, 2017, Jill Perez, a trained forensic interviewer, interviewed the complainant at the Red River Children’s Advocacy Center ("CAC"). Detective Jason Skalicky, a Fargo Police Department investigator who had been assigned the case, set up the forensic interview with the complainant at the CAC. Detective Skalicky viewed the interview live from a different room. In April 2018, the State charged Poulor with one count of gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a), a class A felony, alleging that Poulor had touched the complainant between her legs and inside her pants and underwear.

[¶4] In August 2018, the district court held a three-day jury trial. The complainant, her parents, Officer Gustafson, Detective Skalicky, and a registered nurse who examined the complainant and was an expert pediatric sex assault examiner testified at trial. The court also received into evidence an audio recording of an interview with Poulor and a video recording of the complainant’s interview at the CAC, both of which were played for the jury. Poulor testified in his own defense. The jury subsequently found Poulor guilty of gross sexual imposition.

II

[¶5] Poulor argues his Sixth Amendment right to confrontation was violated when the district court admitted the video recording of the complainant’s interview at the CAC into evidence because he did not have the opportunity to cross-examine the forensic interviewer Perez.

[¶6] The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, declares: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. Our standard of review for a claimed violation of a constitutional right, including the right to confront an accuser, is de novo. State v. Blue , 2006 ND 134, ¶ 6, 717 N.W.2d 558. "Under Crawford [ v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ], the admission of out-of-court testimonial statements in criminal cases is precluded, unless the witness is unavailable to testify and the accused has had an opportunity to cross-examine the declarant." Blue , at ¶ 8.

[¶7] This Court has concluded that a child’s videotaped statement to a forensic interviewer was testimonial under Crawford , when there was no ongoing emergency and the videotaped interview’s primary purpose was to establish or prove past events potentially relevant to a later criminal prosecution. Blue , 2006 ND 134, ¶¶ 16-18, 717 N.W.2d 558. We also explained, however, that "[i]f a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause." Id. at ¶ 23. "The core constitutional problem is eliminated when there is confrontation." Id. (citing Crawford , 541 U.S. at 68-69, 124 S.Ct. 1354 ).

[¶8] In State v. Muhle , 2007 ND 131, ¶ 16, 737 N.W.2d 636, we further discussed our prior decisions in Blue , 2006 ND 134, 717 N.W.2d 558, and State v. Sevigny , 2006 ND 211, 722 N.W.2d 515, distinguishing the defendant’s confrontation right when the child, whose out-of court statements were admitted at trial, had also testified:

In State v. Sevigny , this Court addressed whether Sevigny’s Sixth Amendment right of confrontation had been violated. Sevigny , 2006 ND 211, ¶ 28, 722 N.W.2d 515. We concluded that no violation had occurred because both children, whose out-of-court statements were admitted, testified at trial:

In Blue , 2006 ND 134, ¶ 7, 717 N.W.2d 558, we clarified when a witness testifying to a child’s out-of-court statements about sexual abuse violates a defendant’s constitutional right to confront his accuser. We held an out-of-court testimonial statement may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. Id. at ¶ 8. We also said, If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford makes clear that, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements ...."

Id. at ¶ 23 (citations omitted) (quoting Crawford v. Washington , 541 U.S. 36, 59-60 n. 9 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004) ). In this case, [both children] testified at the trial and Sevigny had the opportunity to cross-examine both children. We conclude Sevigny’s Sixth Amendment rights were not violated.

Sevigny , at ¶ 29 (emphasis added). The child in State v. Blue was available as a witness but did not testify, and the jury saw only a prior videotaped interview of the child. Blue , 2006 ND 134, ¶¶ 1, 8, 717 N.W.2d 558. This Court concluded the defendant’s Sixth Amendment right of confrontation was violated. Id. at ¶ 32.

In both Sevigny , at ¶¶ 28-29, and Muhle , at ¶¶ 16-18, this Court held there had been no violation of the defendants' confrontation rights because the children were available and testified at the trial and the defendants had the opportunity to cross-examine them.

[¶9] Poulor argues the State violated the Confrontation Clause when it presented, under N.D.R.Ev. 803(24), "the substance of a testimonial forensic interview through the trial testimony of a lay witness[, Detective Skalicky,] who took no part in the recorded forensic interview, where defendant had no opportunity to confront the forensic interviewer[, Jill Perez,] who interviewed [the complainant]." Poulor argues at great length on appeal that the complainant’s video recorded statement was testimonial in nature. The State does not contest that the complainant’s interview was an out-of-court testimonial statement. Poulor further contends, however, that the introduction of the video recorded testimony violated his constitutional right to confrontation because Perez, as the forensic interviewer, was unavailable for cross-examination. He contends that if the forensic interview is introduced into evidence, a defendant must have an opportunity to cross-examine the forensic interviewer at trial, and he did not have an opportunity to cross-examine Perez at trial. His argument is unavailing.

[¶10] While Perez was the forensic interviewer, Poulor has not identified any testimonial statements from Perez during the interview that would be subject to his right of confrontation. Moreover, he did not raise any issue regarding Perez in the district court when the video recording was admitted into evidence and played for the jury. The State asserts that Perez, as the forensic interviewer, was not an eyewitness to the crime, her questions to the complainant were not hearsay, and Perez asked the complainant questions that were not assertions regarding any fact at issue in the trial.

[¶11] In this case, the complainant was available and testified at the trial, and Poulor had the opportunity to cross-examine her as a witness. On this record, Poulor has not established a right to confrontation regarding Perez. Further, Poulor could have called Perez as a witness at trial. We therefore conclude Poulor’s Sixth Amendment right to confrontation was not violated when the video recording of the complainant’s interview was admitted into evidence.

III

[¶12] Poulor argues that the district court erred in overruling his objection to the introduction of the video recording of the forensic interview by Perez into evidence under N.D.R.Ev. 803(24).

[¶13] Rule 803(24), N.D.R.Ev., authorizes the admission of a child’s statement about sexual abuse, regardless of whether the declarant is available as a witness, if there are sufficient grounds of trustworthiness:

A statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child if:

(A) the trial court finds, after hearing on notice in advance of the trial of the sexual abuse issue, that the time, content, and

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