from the District Court of Mountrail County, North Central
Judicial District, the Honorable Todd L. Cresap, Judge.
K. Demello Rice (argued) and Jonathan R. Byers (appeared),
Assistant Attorneys General, Bismarck, N.D., for plaintiff
O. Diamond, Fargo, N.D., for defendant and appellant.
1] Clyde Pickens appeals a criminal judgment entered after a
jury found him guilty of gross sexual imposition. Pickens
argues the district court's errors in responding to two
requests from the jury prejudiced his substantial rights and
denied him a fair trial. We reverse and remand for a new
2] Pickens moved to western North Dakota in 2011 with D.R.
and her children, M.R. and C.R. After arriving, Pickens and
D.R. began CTC Cleaning Services and performed construction
cleanup work. Pickens lived with D.R. and helped care for her
3] D.R. testified about an incident that occurred between her
and Pickens on December 31, 2012. After an argument relating
to the cleaning business, Pickens made physical contact with
D.R. Pickens was arrested and pled guilty to simple assault.
D.R. testified that about a week after the incident on New
Year's Eve, M.R. told her that Pickens had
inappropriately touched her.
4] In November 2013, after investigating the allegations by
M.R., the State charged Pickens with three counts of gross
sexual imposition for having sexual contact with M.R. The
State alleged the sexual contact occurred in November or
December 2012 when M.R. was eleven years old.
5] M.R. testified the sexual contact began after the parties
moved to North Dakota. She testified Pickens touched her
vagina and breasts under her clothes. She testified the
sexual contact continued after she told him to stop.
6] C.R., M.R.'s younger brother, also testified. C.R.
testified that he witnessed Pickens touch M.R.'s private
parts on the couch and heard her tell him to stop. He
testified he observed Pickens do this on more than one
occasion. C.R. testified he did not tell anyone about what he
saw until M.R. told their mom what Pickens did to her.
7] In addition to the live testimony, the district court
admitted and played to the jury a video recording of an
interview of M.R. Recorded audio from another interview of
M.R., C.R., and D.R. with law enforcement was also admitted
and played to the jury.
8] Pickens testified and denied having sexual contact with
M.R. He testified that he believed D.R. had M.R. and C.R.
fabricate the sexual contact after the incident on New
Year's Eve so D.R. could gain control of the cleaning
business. Pickens' attorney also explained to the jury
that inconsistencies existed between statements made by D.R.,
C.R., and M.R.
9] While discussing the closing instructions to the jury,
Pickens' attorney requested a limiting instruction for
the evidence involving Pickens' simple assault
conviction. The district court denied the request for an
instruction limiting the jury's consideration of the
evidence relating to the simple assault because Pickens used
the evidence as part of his defense.
During deliberations, the jury requested transcripts of
C.R.'s and M.R.'s testimony. Transcripts were
unavailable; however, Pickens suggested providing the jury
with an audiotape of the testimony, but the district court
declined. The court informed the jury that transcripts of the
testimony were not available and that they would have to rely
on their recollection of the testimony.
The jury also requested the video interview of M.R. Over
Pickens' objection, the court allowed a clerk to play the
video for the jury in the jury room. The jury found Pickens
12] Pickens argues the district court erred in responding to
two jury requests made during deliberations. Pickens claims
the court's responses to the jury prejudiced his
substantial rights and entitle him to a new trial.
13] A defendant has a right to be present in the courtroom at
every stage of trial. N.D.R.Crim.P. 43(a)(1)(B); State v.
Parisien, 2005 ND 152, ¶ 7, 703 N.W.2d 306. A
defendant's "right to be present in the courtroom at
every stage of his trial is one of the most basic rights
guaranteed by the Confrontation Clause" of the Sixth
Amendment to the United States Constitution. State v.
Klose, 2003 ND 39, ¶ 32, 657 N.W.2d 276 (citing
Illinois v. Allen, 397 U.S. ...