from the District Court of Cass County, East Central Judicial
District, the Honorable Douglas R. Herman, Judge.
J. Younggren, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee.
R. Carlson, Fargo, ND, for defendant and appellant.
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.
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
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
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.
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.
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 (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 ¶
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).
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, ...