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State v. Poulor

Supreme Court of North Dakota

August 22, 2019

State of North Dakota, Plaintiff and Appellee
Kanakai Poulor, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

          Ryan J. Younggren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Leah R. Carlson, Fargo, ND, for defendant and appellant.



         [¶1] 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. We affirm.


         [¶2] 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 were called.

         [¶3] 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 underwear.

         [¶4] 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.


         [¶5] 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.

         [¶6] 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 ¶ 8.

         [¶7] 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).

         [¶8] 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, ...

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