State v. Poulor , 932 N.W.2d 534 ( 2019 )

Filed 8/22/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND215
State of North Dakota, Plaintiff and Appellee
v.
Kanakai Poulor, Defendant and Appellant
No. 20190017
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Douglas R. Herman, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Ryan J. Younggren, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee.
Leah R. Carlson, Fargo, ND, for defendant and appellant.
State v. Poulor
No. 20190017
McEvers, Justice.
[¶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.
I
[¶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
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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.
II
[¶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.
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[¶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, whose out-of court statements were admitted at trial, had also
testified:
In State v. Sevigny, this Court addressed whether Sevigny’s
Sixth Amendment right of confrontation had been violated. Sevigny,
2006 ND 211, ¶ 28, 722 N.W.2d 515. We concluded that no violation
had occurred because both children, whose out-of-court statements
were admitted, testified at trial:
In Blue, 2006 ND 134, ¶ 7, 717 N.W.2d 558, we
clarified when a witness testifying to a child’s
out-of-court statements about sexual abuse violates a
defendant’s constitutional right to confront his accuser.
We held an out-of-court testimonial statement may not be
admitted into evidence when the child is unavailable to
testify unless the defendant has had an opportunity to
cross-examine the child. Id. at ¶ 8. We also said,
If a defendant has an opportunity to cross-examine the
witness at trial, the admission of testimonial statements
would not violate the Confrontation Clause. The core
constitutional problem is eliminated when there is
confrontation. Crawford makes clear that, “when the
declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the
use of his prior testimonial statements . . . .”
Id. at ¶ 23 (citations omitted) (quoting Crawford v.
Washington, 541 U.S. 36, 59-60 n. 9 (2004)). In this
case, [both children] testified at the trial and Sevigny had
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the opportunity to cross-examine both children. We
conclude Sevigny’s Sixth Amendment rights were not
violated.
Sevigny, at ¶ 29 (emphasis added). The child in State v. Blue was
available as a witness but did not testify, and the jury saw only a prior
videotaped interview of the child. Blue, 2006 ND 134, ¶¶ 1, 8, 717
N.W.2d 558. This Court concluded the defendant’s Sixth Amendment
right of confrontation was violated. Id. at ¶ 32.
In both Sevigny, at ¶¶ 28-29, and Muhle, at ¶¶ 16-18, this Court held there had been
no violation of the defendants’ confrontation rights because the children were
available and testified at the trial and the defendants had the opportunity to
cross-examine them.
[¶9] Poulor argues the State violated the Confrontation Clause when it presented,
under N.D.R.Ev. 803(24), “the substance of a testimonial forensic interview through
the trial testimony of a lay witness[, Detective Skalicky,] who took no part in the
recorded forensic interview, where defendant had no opportunity to confront the
forensic interviewer[, Jill Perez,] who interviewed [the complainant].” Poulor argues
at great length on appeal that the complainant’s video recorded statement was
testimonial in nature. The State does not contest that the complainant’s interview was
an out-of-court testimonial statement. Poulor further contends, however, that the
introduction of the video recorded testimony violated his constitutional right to
confrontation because Perez, as the forensic interviewer, was unavailable for cross-
examination. He contends that if the forensic interview is introduced into evidence,
a defendant must have an opportunity to cross-examine the forensic interviewer at
trial, and he did not have an opportunity to cross-examine Perez at trial. His argument
is unavailing.
[¶10] While Perez was the forensic interviewer, Poulor has not identified any
testimonial statements from Perez during the interview that would be subject to his
right of confrontation. Moreover, he did not raise any issue regarding Perez in the
district court when the video recording was admitted into evidence and played for the
jury. The State asserts that Perez, as the forensic interviewer, was not an eyewitness
4
to the crime, her questions to the complainant were not hearsay, and Perez asked the
complainant questions that were not assertions regarding any fact at issue in the trial.
[¶11] In this case, the complainant was available and testified at the trial, and Poulor
had the opportunity to cross-examine her as a witness. On this record, Poulor has not
established a right to confrontation regarding Perez. Further, Poulor could have called
Perez as a witness at trial. We therefore conclude Poulor’s Sixth Amendment right
to confrontation was not violated when the video recording of the complainant’s
interview was admitted into evidence.
III
[¶12] Poulor argues that the district court erred in overruling his objection to the
introduction of the video recording of the forensic interview by Perez into evidence
under N.D.R.Ev. 803(24).
[¶13] Rule 803(24), N.D.R.Ev., authorizes the admission of a child’s statement about
sexual abuse, regardless of whether the declarant is available as a witness, if there are
sufficient grounds of trustworthiness:
A statement by a child under the age of 12 years about sexual abuse of
that child or witnessed by that child if:
(A) the trial court finds, after hearing on notice in advance of the
trial of the sexual abuse issue, that the time, content, and circumstances
of the statement provide sufficient guarantees of trustworthiness; and
(B) the child either:
(i) testifies at the trial; or
(ii) is unavailable as a witness and there is corroborative
evidence of the act which is the subject of the statement.
[¶14] We have said the factors that the district court should consider for N.D.R.Ev.
803(24) trustworthiness include: (1) spontaneity and consistent repetition of the
statements, (2) the mental state of the declarant, (3) use of terminology unexpected
of a child of similar age, and (4) a lack of motive to fabricate. Muhle, 2007 ND 131,
¶ 12, 737 N.W.2d 636. “[This Court] reviews a district court’s evidentiary ruling
under an abuse-of-discretion standard.” Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d
515. “A district court abuses its discretion when it acts arbitrarily, capriciously, or
5
unreasonably or if it misinterprets or misapplies the law.” Id. (quotation marks
omitted).
[¶15] Poulor argues that while the complainant’s initial out-of-court statement about
the sexual abuse was spontaneous, it lacked consistent repetition. He asserts that
without testimony from the forensic interviewer, it was unclear whether the
complainant’s terminology was consistent with her age when describing the incident
and parts of the human body to Perez. He also asserts there was no expert testimony
regarding the type of terminology consistent for a child of similar age. He contends
that because the time, content, and circumstances of the complainant’s statements did
not provide sufficient guarantees of trustworthiness, the district court abused its
discretion in admitting the video.
[¶16] The State responds that the district court found the video recording had met the
test for admission under N.D.R.Ev. 803(24). The State asserts the court repeatedly
discussed the spontaneity, consistent repetition, age-appropriate language, and lack
of motive to fabricate the complainant’s statements to her mother, the police officer,
and the forensic examiner. Moreover, after opening statements and before any
testimony, the court and Poulor’s counsel again addressed his objection to the video
recording, at which time the court reiterated its earlier findings and made a weight
versus admissibility analysis, stating the defense was free to use their arguments as
a subject of cross-examination.
[¶17] Here, while the district court could have provided more detailed findings to
explain its decision, the court adopted the State’s offer of proof and conducted
analysis of the nonexclusive factors for N.D.R.Ev. 804(24). Poulor was allowed to
cross-examine the complainant and the State’s witnesses regarding her statements and
their trustworthiness. On this record, we conclude the court did not act arbitrarily,
capriciously, or unreasonably and did not abuse its discretion by allowing into
evidence the complainant’s video recorded statement.
[¶18] While not specifically briefed on appeal, Poulor’s counsel at oral argument on
appeal argued that the district court failed to comply with N.D.R.Ev. 803(24) and the
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procedure explained in State v. Krull, 2005 ND 63, 693 N.W.2d 631. In Krull, we
discussed the procedure required for the application of N.D.R.Ev. 803(24):
Enactment of child-hearsay rules is intended to ensure that child
abusers do not go free merely because the prosecutor is unable to obtain
witnesses to the abuse other than the child, who is unable to testify
about the abuse. While the child-hearsay rule permits the admission of
otherwise inadmissible hearsay evidence in order to facilitate
prosecution, the rule’s requirements are also intended to safeguard the
accused’s right to confront the witnesses testifying against him. The
child-hearsay rule is intended to balance the interests of the accused and
the interests of the truth-seeking process. Indicia of reliability and
guarantees of trustworthiness are constitutionally required before
admission of hearsay statements to preserve the Sixth Amendment’s
basic interest in requiring “confrontation,” even though an accused
cannot directly confront the hearsay declarant. Because of the
importance of the accused’s confrontation rights, the safeguards built
into the child-hearsay rule must be strictly observed.
....
Under N.D.R.Ev. 803(24)(a), the child’s hearsay statements are
not admissible unless the trial court finds that “the time, content, and
circumstances of the statement provide sufficient guarantees of
trustworthiness.” Factors to consider include spontaneity and
consistent repetition, the mental state of the declarant, the use of
terminology unexpected of a child of similar age, and a lack of a motive
to fabricate. A trial court must make explicit findings as to what
evidence it relied upon regarding the factors and explain its reasons for
either admitting or excluding the testimony so a defendant can be
assured the required appraisal has been made, and so this Court can
properly perform its appellate review function. Although written
findings are preferred, duly recorded oral findings satisfy the
requirements of the child-hearsay rule.
....
A trial court must make an in-depth evaluation of the proposed
testimony. A trial court should not . . . merely quote the terms of the
rule and order the testimony admitted, but should make specific
findings of the facts relevant to reliability and trustworthiness and
explain how these facts support the conclusion of admissibility. . . .
[N]ondetailed findings might suffice when there is an adequate factual
basis in the offer of proof to support the trial court’s determination . .
. . Moreover, in reviewing a trial court’s evidentiary ruling under
N.D.R.Ev. 803(24), we are limited to reviewing the proponent’s offer
of proof made at the pretrial hearing and may not consider the entire
evidence admitted during the trial to support the earlier ruling.
7
Krull, 2005 ND 63, ¶ 8, 693 N.W. 631 (quoting State v. Hirschkorn, 2002 ND 36, ¶¶
11, 13, 18, 640 N.W.2d 439 (internal citations omitted)).
[¶19] We have said that a “party waives an issue by not providing supporting
argument or citations to relevant authorities.” Vann v. Vann, 2009 ND 118, ¶ 41, 767
N.W.2d 855. The district court did not hold an evidentiary pretrial hearing to address
N.D.R.Ev. 803(24), but rather handled the issue immediately before and during trial.
Further, while the court could have made more detailed findings, to the extent it
would constitute obvious error, we hold Poulor has not shown on appeal how the
ultimate outcome at trial would have changed. See Krull, 2005 ND 63, ¶ 6, 693
N.W.2d 631 (“To establish obvious error, the defendant has the burden of showing
(1) error, (2) that is plain, and (3) that affects substantial rights. . . . [T]o affect the
defendant’s substantial rights, ‘a plain error must have been prejudicial, or have
affected the outcome of the proceeding.’”).
[¶20] In Krull, 2005 ND 63, ¶¶ 9-11, 693 N.W.2d 631, we held that “[t]he trial court
abused its discretion and committed plain error in admitting the hearsay statements
without making ‘specific findings of the facts relevant to reliability and
trustworthiness’ and by not explaining ‘how these facts support the conclusion of
admissibility.’” We concluded that while we “believe the district court committed
plain error, . . . we cannot conclude this error affected the defendant’s substantial
rights.” Id. at ¶ 10. We further held that “[e]ven if the district court excluded the
hearsay statements, we do not believe the ultimate outcome of the trial would have
changed.” Id. In Krull, at ¶ 11, we concluded “the [victims] took the stand and were
subjected to extensive cross-examination regarding their prior statements,” which
“counter[ed] any contention that Krull suffered a serious constitutional injustice
warranting our rectification.” Id.
[¶21] Regardless of whether this issue was sufficiently raised on appeal, we conclude
that even if the district court committed plain error, Poulor has not established that the
outcome at trial would have been changed. The complainant testified at trial and was
subjected to cross-examination regarding her prior statements. As in Krull, on this
8
record, we do not believe Poulor suffered a serious constitutional injustice warranting
our rectification.
IV
[¶22] Poulor argues the evidence was insufficient to sustain the conviction of gross
sexual imposition.
[¶23] “This Court will reverse a conviction on the ground of insufficient evidence
only if, after viewing the evidence and all reasonable inferences in the light most
favorable to the verdict, no rational factfinder could have found the defendant guilty
beyond a reasonable doubt.” Muhle, 2007 ND 131, ¶ 32, 737 N.W.2d 636 (quoting
State v. Steen, 2000 ND 152, ¶ 17, 615 N.W.2d 555).
[¶24] On appeal, Poulor largely argues and highlights inconsistencies in the
complainant’s testimony at trial. He asserts that both he and the complainant’s mother
testified it was normal for Poulor to give the children hugs, but the complainant
testified she did not give him any hugs that day, and usually did not give him hugs.
He asserts the complainant had trouble articulating whether he touched her on the
inside or outside of her underwear and, after prompting, testified that she thought on
the inside. He also asserts that her account lacked detail and was not consistent in her
statements. He contends he had been to the complainant’s home “over 100 times” and
nothing like this had previously been brought up. He also appears to suggests that the
complainant’s uncle’s refusal to cooperate with the police investigation and his
moving out of the family’s home shortly after the complainant’s allegations against
Poulor also weighs against a finding of Poulor’s guilt.
[¶25] Here, the elements for gross sexual imposition were proven through the
complainant’s testimony, in addition to the other witnesses and evidence. Poulor’s
argument contending insufficient evidence essentially asks this Court to reweigh the
trial testimony and find him more credible than the complainant. The jury, however,
found the complainant more credible. Viewing the evidence and all reasonable
inferences in the light most favorable to the jury’s verdict, we conclude a rational
9
factfinder could have found him guilty beyond a reasonable doubt. On our review of
the record, we conclude sufficient evidence supports the jury’s verdict on appeal.
V
[¶26] The judgment is affirmed.
[¶27] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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