             Filed April 6, 2020 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 2020 ND 78

State of North Dakota,                                Plaintiff and Appellee
      v.
Jeffrey Scott Krogstad,                            Defendant and Appellant



                                No. 20190290

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Andrew C. Eyre, Assistant State’s Attorney, Grand Forks, N.D., for plaintiff
and appellee; submitted on brief.

Laura C. Ringsak, Bismarck, N.D., for defendant and appellant; submitted on
brief.
                              State v. Krogstad
                                No. 20190290

Tufte, Justice.

[¶1] Jeffrey Scott Krogstad appeals a criminal judgment entered after a jury
found him guilty of gross sexual imposition. Krogstad argues admission of
video of the victim’s forensic interview violated his Sixth Amendment right to
confrontation, the district court abused its discretion in admitting the video
under N.D.R.Ev. 803(24), and there was insufficient evidence to sustain the
guilty verdict. We affirm.

                                       I

[¶2] In July 2018, the State charged Krogstad with gross sexual imposition,
alleging he engaged in a sexual act with a six-year-old victim. As part of the
investigation, Susan Spivey conducted a forensic interview of the victim at the
Red River Children’s Advocacy Center. The interview was video-recorded. In
the interview, the victim stated Krogstad took her “to the middle of nowhere”
and touched her genitals with his hands. She also described watching what she
called “girl on girl” pornography on Krogstad’s phone. The victim also described
and drew a picture of a blue vibrating “toy” she said Krogstad used on her
genitals. The victim’s drawing and description were similar to a vibrating
massager officers found in Krogstad’s van.

[¶3] In January 2019, the State gave notice of its intent to introduce the video
interview at trial. The district court held a hearing in March 2019 on whether
to admit the video. Spivey testified that during the interview, the victim
was “very spontaneous” and “very talkative.” She noted the victim used
terminology unexpected of a six-year-old child to describe pornographic videos
shown to her by Krogstad. Spivey also testified that the victim’s statements
were consistent throughout the interview and that the victim did not appear
to have been “coached.” At the conclusion of the hearing, the State offered a
DVD copy of the video for the court’s consideration. On April 1, 2019, the
district court issued an order allowing the State to offer the forensic interview
video at trial.


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[¶4] A three-day jury trial was held in April 2019. At trial, the forensic
interview video was played for the jury. Following presentation of the video,
the victim testified. The victim testified on direct examination that Krogstad
had touched her, but she was minimally responsive during cross-examination.
At the conclusion of the trial, the jury found Krogstad guilty.

                                        II

[¶5] Krogstad argues admission of the forensic interview video violated his
Sixth Amendment right to confront witnesses against him.

[¶6]  The Confrontation Clause of the Sixth Amendment to the United States
Constitution, applicable to the States through the Fourteenth Amendment,
states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI. We review
a claimed violation of a constitutional right, including the right to confront an
accuser, de novo. State v. Blue, 2006 ND 134, ¶ 6, 717 N.W.2d 558.

[¶7]  Under Crawford v. Washington, 541 U.S. 36, 59 (2004), the admission of
out-of-court testimonial statements in criminal cases is precluded when the
witness is unavailable to testify unless the accused has had an opportunity to
cross-examine the declarant. State v. Poulor, 2019 ND 215, ¶ 8, 932 N.W.2d
534 (quoting State v. Muhle, 2007 ND 131, ¶ 16, 737 N.W.2d 636). The State
concedes that the victim’s statements during the forensic interview were
testimonial under Crawford.

[¶8]  While Crawford precludes admission of testimonial statements where
the accused has not had the opportunity to cross-examine the declarant, we
have 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. . . .”


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State v. Sevigny, 2006 ND 211, ¶ 29, 722 N.W.2d 515 (quoting State v. Blue,
2006 ND 134, ¶ 23, 717 N.W.2d 558). In Sevigny, the child victims testified and
were cross-examined, and this Court concluded that their cross-examination
satisfied the defendant’s right to confrontation. Id.

[¶9] As in Sevigny, the victim here did testify and was subject to cross-
examination. Krogstad argues he did not have an opportunity to cross-examine
her because she was evasive in her answers and said she did not want to talk
about the allegations. On cross-examination, Krogstad’s counsel asked the
victim numerous questions regarding places she had been and activities she
had done with Krogstad. The victim replied affirmatively to several places she
had been and activities she had done with Krogstad. To several of the questions
she responded that she could not remember. Krogstad’s counsel then probed
why the victim did not want to talk about the allegations:

      Q. Okay. And you said you didn’t want to talk about that.

      A. Yes.

      Q. Why don’t you want to talk about that.

      A. ’Cause it makes me feel weird.

      Q. Okay. And we understand that it could do that for you, okay. So
      it’s not that we’re holding that against you or anything. We’re just
      needing to know a little bit of information about that. Would you
      be able to talk about that?

      A. Only with people that I know.

Krogstad’s counsel then asked the victim whether she knew anyone in the
courtroom. After the victim identified those she knew in the courtroom,
Krogstad’s counsel asked only whether she liked going places with Krogstad
before he discontinued questioning.

[¶10] In State v. Jenkins, 326 N.W.2d 67, 71 (N.D. 1982), the defendant argued
his Sixth Amendment right to confrontation was violated by “the failure of the
victim to answer questions relating to the elements of the crime.” This Court
stated, “Although the responses given by the victim did not specifically answer
                                       3
the questions asked by Jenkins, we do not believe those responses are a denial
of the defendant’s right to confront the witness. Rather, we believe those
responses raised a credibility issue to be resolved by the trier of fact[.]” Id.
Similarly, here, we conclude the victim’s evasiveness on cross-examination
raises questions about her credibility rather than a denial of Krogstad’s ability
to confront her. Because Krogstad had an opportunity to cross-examine the
victim, we conclude admission of the video did not violate his Sixth
Amendment right to confrontation.

                                         III

[¶11] Krogstad argues the district court abused its discretion in admitting
video of the forensic interview under N.D.R.Ev. 803(24). We review a district
court’s evidentiary decisions for an abuse of discretion, and we will not
reverse a decision unless it is arbitrary, capricious, or unreasonable, or a
misinterpretation or misapplication of the law. State v. Wegley, 2008 ND 4,
¶ 12, 744 N.W.2d 284.

[¶12] An out-of-court statement offered to prove the truth of the matter
asserted is hearsay. N.D.R.Ev. 801(c). Hearsay is not admissible unless
permitted by statute, the rules of evidence, or other rules prescribed by this
Court. N.D.R.Ev. 802. Rule 803(24), N.D.R.Ev., is an exception to the rule
against hearsay, and provides:

      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.

                                             4
[¶13] The victim in this case was under 12 years of age at the time she was
interviewed. The State provided notice in advance of trial that it intended to
introduce the forensic interview video. A hearing was held, and the district
court found that the time, content, and circumstances of the victim’s statement
sufficiently guaranteed trustworthiness. Specifically, the district court cited
the open-endedness of the questions and the victim’s spontaneity, consistency,
and use of terminology unexpected of a child of her age as reasons to believe
the statements in the video interview were trustworthy. She also described and
drew a picture of a blue “toy” that vibrated when Krogstad touched her with it.
Officers found a vibrator in Krogstad’s van similar to the victim’s drawing and
description. Additionally, the victim testified at trial and was available for
cross-examination.

[¶14] The district court’s order granting the State’s motion to admit the
forensic interview video complied with the procedural requirements of
N.D.R.Ev. 803(24) and was not arbitrary, capricious, or unreasonable. We
conclude the district court did not abuse its discretion, and we affirm its
decision to admit the forensic interview video.

                                      IV

[¶15] Krogstad argues there was insufficient evidence to sustain the verdict.
In reviewing sufficiency of the evidence challenges, we review the record to
determine whether there is sufficient evidence that could allow a jury to draw
a reasonable inference in favor of the verdict. State v. Truelove, 2017 ND 283,
¶ 7, 904 N.W.2d 342. The defendant bears the burden of showing the evidence
reveals no reasonable inference of guilt when viewed in the light most
favorable to the verdict. Id. We do not reweigh conflicting evidence or judge the
credibility of witnesses. Id.

[¶16] Krogstad’s argument that the evidence was insufficient to convict relies
on his other arguments that the forensic interview video was inadmissible. As
stated above, we have concluded the district court did not err in admitting
video of the forensic interview. We have reviewed the record and conclude it
contains sufficient evidence to support a reasonable inference by the jury in
favor of conviction.

                                       5
                                    V

[¶17] We affirm the criminal judgment.

[¶18] Jerod E. Tufte
      Gerald V. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen, C.J.




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