As Corrected May 29, 2014.
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.
Brian D. Grosinger, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.
John T. Goff, Fargo, ND, for defendant and appellant.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.
VandeWalle, 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.
[¶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. See U.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 ...