State v. Roe

• Decision Date: 28 May 2014
• Docket Number: No. 20130326.,20130326.
• Citation: 846 N.W.2d 707,2014 ND 104
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Barry Lynn ROE, Defendant and Appellant.
• Court: North Dakota Supreme Court

846 N.W.2d 707

2014 ND 104

STATE of North Dakota, Plaintiff and Appellee

v.Barry Lynn ROE, Defendant and Appellant.

No. 20130326.

Supreme Court of North Dakota.

May 28, 2014.

Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.

John T. Goff, Fargo, ND, for defendant and appellant.

GERALD W. VANDE WALLE, Chief Justice.

[¶ 1] Barry Roe appealed from a criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition. We affirm the judgment, concluding the district court did not err in admitting child hearsay statements as part of a stipulation. We also conclude there was sufficient evidence to sustain the convictions and the prosecutor did not commit misconduct during closing argument.

I

[¶ 2] The State charged Roe with two counts of willfully engaging in sexual contact with two minor children, K.V. and N.V. The children were both under the age of twelve at the time of the alleged incidents. Authorities also investigated whether Roe willfully engaged in sexual contact with a third child, C.V., but charges were not brought with respect to this child. Before trial a motion hearing was held to determine the admissibility of two out-of-court recorded DVD forensic interviews of the alleged victims, K.V. and N.V. The State sought to have the recordings of the forensic interviews admitted into evidence. The defense sought admission of a third out-of-court forensic interview involving the third child, C.V. The interview with C.V. allegedly contained exculpatory information and generally repudiated the accusations against Roe.

[¶ 3] At the hearing, Shannon Hilfer, a forensic interviewer at the Dakota Children's Advocacy Center, testified she conducted forensic interviews with K.V. and N.V. Hilfer also testified she conducted the interview with C.V., but that she was not prepared to testify concerning her interview with C.V. Following Hilfer's foundational testimony, the defense and the State stipulated to the admissibility of the three out-of-court recorded forensic interviews. The State suggested it may potentially use the recordings if the alleged child victims gave partial statements or did not testify at trial. The defense indicated that its main concern was that the children would be present and subject to cross-examination as required by the Confrontation Clause. SeeU.S. Const. amend. VI; N.D. Const. art. I, § 12.

[¶ 4] At trial, the two alleged minor victims did testify. N.V. testified she was nine years old and was able to identify Roe in the courtroom. N.V. testified that Roe was her neighbor when she lived in Mandan in 2012. N.V. testified she lived in Mandan with various family members and her cousins, K.V. and C.V. N.V. testified she and her cousins would visit Roe because he was nice. She testified Roe let the girls ride in his truck, watch T.V., play on his computer and play in his basement. N.V. testified she stopped going over to Roe's house after a report was made. N.V. testified Roe tried to have sex with her and put his hand up her shirt and touched her nipples. N.V. additionally testified Roe put her hand down his pants and touched his private part.

[¶ 5] K.V. also testified. K.V. testified she was eleven years old. She testified that, at one time, she lived in Mandan and was neighbors with Roe. K.V. testified she would go over to Roe's house and watch movies and play games. She testified she stopped going over to his house in 2012 after Roe put his hands up her cousin's shirt and down her pants. K.V. testified she saw Roe touch N.V. in this manner in Roe's room at his house in Mandan. K.V. testified the incident occurred while she was playing on the computer and her cousin was playing hide and seek. K.V. also testified Roe would take her to stores and let her drive his car or truck by sitting on his lap and steering. K.V. testified Roe put his hand on her thigh, “and he would kind of move his way up, and that's when I would jump off to the other seat.” K.V. testified Roe did not touch her private part, but came close, “like 3 or 4 inches.”

[¶ 6] Shannon Hilfer, of the Dakota Children's Advocacy Center, also testified. Hilfer testified she conducted forensic interviews with K.V. and N.V. on March 21, 2012. She testified the interviews took place at the Child Advocacy Center in Bismarck, and that the interviews were recorded on DVD. The State, referring to inappropriate touching, asked whether K.V. made any disclosures during the interview. The defense objected based on hearsay and duplicative evidence. The defense stated, “I previously agreed with [the State] that the DVDs can be played for the jury.” The defense further stated, “I have no objection [to playing the DVDs], and we covered this at the 803 hearing, to all three DVDs coming in. It was my understanding that was the Court ruling, that all three would be offered.” During a jury recess, counsel for the defense further stated, “We've come to the point in the case where the DVDs that were previously addressed by the Court in the 803(24) hearing are going to be submitted. I believe it's our mutual intention to submit all three DVDs in a row, as it were.” The jury viewed all three of the forensic interviews, including the DVD containing C.V.'s allegedly exculpatory information. After the DVD containing K.V.'s forensic interview was played in open court, Hilfer testified that K.V. made disclosures of sexual contact by Roe.

[¶ 7] At the close of the State's case, Roe moved for a judgment of acquittal pursuant to N.D.R.Crim.P. 29. With respect to the charge concerning sexual contact with K.V., the State's attorney asserted, “I acknowledge that K.V. had indicated that there was no sexual contact during her direct testimony. Nevertheless, during the exhibit, which was the interview of her, she did indicate a sexual contact in the form of him touching her private parts.” The court denied the Rule 29 motion. Roe testified in his own defense. He denied the allegations of inappropriate touching. The defense also called an expert witness to review Hilfer's protocol in conducting the forensic interviews with the children.

[¶ 8] During closing arguments, the prosecutor discussed the inconsistency in K.V.'s testimony at trial where she testified no sexual contact took place, and her recorded statements made to the forensic investigator where she made disclosures of sexual contact by Roe. The defense did not object to the closing statement. At the close of the case, the jury convicted Roe of both charges of gross sexual imposition.

II

[¶ 9] Roe argues admission of the out-of-court recorded forensic interviews of the minor children is obvious error and a misapplication of the law. Roe contends the district court erred by not making mandatory explicit findings concerning the reliability and trustworthiness of the child hearsay.

[¶ 10] This Court reviews a district court's evidentiary ruling under an abuse-of-discretion standard. State v. Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d 515. However, because Roe failed to make a contemporaneous objection on hearsay grounds when the evidence was presented at trial, he argues we should review the lower court's decision to admit the evidence for obvious error under N.D.R.Crim.P. 52(b). See State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631 (stating “even if a defendant objects at the pretrial hearing on a N.D.R.Ev. 803(24) motion, failure to object at trial to testimony of a child victim's out-of-court statement regarding sexual abuse limits our inquiry to determining whether its admission into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b).”). “To establish obvious error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights.” State v. Wegley, 2008 ND 4, ¶ 14, 744 N.W.2d 284. “[E]ven if the defendant establishes obvious error, we will not exercise our discretion to correct the error unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Paul, 2009 ND 120, ¶ 11, 769 N.W.2d 416. To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. State v. Chacano, 2013 ND 8, ¶ 10, 826 N.W.2d 294. “We cautiously exercise our power to notice obvious error only in exceptional situations in which a defendant has suffered serious injustice.” Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631.

[¶ 11] At issue here is whether the trial court was required to make specific findings regarding the admissibility of child hearsay, even after the parties stipulated to the admission of the out-of-court recorded interviews. Rule 803(24), N.D.R.Ev., provides:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

....

(24) Child's Statement About Sexual Abuse. 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 circumstances of the statement provide sufficient guarantees of trustworthiness; and

(B) the child either:

(i) testifies at the trial; or

(ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

The child-hearsay rule is designed to balance the interests of the accused and the interests of the truth-seeking process. Wegley, 2008 ND 4, ¶ 12, 744 N.W.2d 284. “Factors the [district] court must consider when deciding whether to admit a child's out-of-court statements are the spontaneity and consistent repetition of the statements, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate.” Sevigny, 2006 ND 211, ¶ 25, 722 N.W.2d 515. A district court must make explicit findings as to what evidence it relied...