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State v. Fickert

April 6, 2010

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
JAKE A. FICKERT, JR., DEFENDANT AND APPELLANT



Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

AFFIRMED.

[¶1] Jake Fickert, Jr. appeals from a criminal judgment entered after he plead guilty to gross sexual imposition. We hold Fickert failed to establish the district court committed obvious error, and the district court correctly determined a sufficient factual basis existed to support Fickert's guilty plea. We affirm.

I.

[¶2] In July 2008, Fickert was charged with gross sexual imposition in Williams County. On February 18, 2009, the district court held a hearing to allow Fickert to change his plea from not guilty to guilty. Both the Williams County state's attorney and Fickert's appointed defense counsel, Josh Rustad, were physically present in the courtroom for the hearing. Fickert appeared at the hearing by interactive video network (IVN) from the Ramsey County courthouse in Devils Lake. After first asking Fickert where he was physically located, the district court asked defense counsel Rustad whether Fickert consented to appearing via IVN:

The Court: Okay. And the Defendant is present at the - from IVN. His counsel, Attorney Rustad, is here in person. . . . A couple of procedural matters before we get started. Interactive Video can be used only by the consent of all parties and the Court. Attorney Rustad, you have discussed this with your client?

Mr. Rustad: Yes, your Honor.

The Court: And it's your desire and his to appear by interactive video?

Mr. Rustad: Yes, it is.

The Court: Does the State have any objection?

[State's attorney]: No objection, your Honor.

The Court: All right. . . .

The district court also explained to Fickert that, if requested, he could speak privately to defense counsel Rustad during the hearing: The Court: Okay. Sometimes when people are in court it becomes necessary for them to talk to their attorney. And they - usually when you are here in person they just lean over and whisper to him or write him a note. Interactive Video has many advantages, but one disadvantage is that you can't do that. So, if it becomes important at some point during these proceedings for you and your attorney to talk privately, simply give me a high sign. Mr. Rustad can do the same from his end. We will either vacate the room so you people can use the IVN, or we will send you off to a room where Mr. Rustad can talk to you in private. So, just be aware that that can be done at any time, and it's not a problem. Okay?

The Defendant: All right.

[¶3] After discussing the nature of the plea agreement, the district court asked the state's attorney to provide a factual basis for the charge of gross sexual imposition. The state's attorney said:

On May 28th of 2008 the police department in Grand Forks County received a report of suspected child abuse. It was - a minor female there did a, quote, reflection writing, unquote, assignment on May 6th while in school in Grand Forks, indicating she had been sexually harassed by Mr. Fickert when she was younger.

The teacher recognized what the student had written and reported it to Grand Forks Social Services. A forensic interview was done of the minor on May 23rd during which she disclosed that Jake Fickert had sexually assaulted her when she was around eight years old during school while she was living in Williston, which would have put it sometime between September 2001 and May of 2002.

The minor child disclosed that on one occa - at least one occasion when she was seated in Mr. Fickert's lap he had taken her hand and made her rub his penis over his clothes. She indicated that there were two separate occasions that occurred on the same date. And at one point Mr. Fickert had inserted his finger into her vagina. Mr. Fickert was interviewed regarding this, and eventually said, well, she's not lying. Basically admitted to everything else when he wrote a letter to his sons basically admitting the same.

The district court asked Fickert whether the State's factual basis was correct. Fickert stated he was not sure, and the following exchange took place:

The Court: What do you mean you are not sure?

The Defendant: Because -

The Court: You didn't hear, or -

The Defendant: No. I heard, but it's - it only happened one time. And not in ...


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