FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 28, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 192
State of North Dakota, Plaintiff and Appellee
v.
Wyatt Scott Kukert, Defendant and Appellant
No. 20210079
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Wade L. Webb, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen, and
Justices VandeWalle and Tufte joined, and Justice McEvers concurred in the
result.
Renata J. Olafson Selzer, Assistant State’s Attorney, Fargo, ND, for plaintiff
and appellee.
Elizabeth B. Brainard, Fargo, ND, for defendant and appellant.
State v. Kukert
No. 20210079
Crothers, Justice.
[¶1] Wyatt Kukert appeals from a district court judgment entered after he
conditionally pled guilty to gross sexual imposition. Kukert argues the court
erred by denying his motions to dismiss and suppress. Kukert claims he did not
voluntarily waive his Miranda rights, and his statements to law enforcement
were not corroborated by other evidence of sexual contact. We affirm.
I
[¶2] In June 2019, Fargo law enforcement was sent a mobile phone video of
Kukert with two six-year-old females, M.S. and K.K. The video showed Kukert
sitting on a couch with his erect penis exposed. The video included dialog
between Kukert, M.S., and K.K.
[¶3] Kukert was interviewed for over two-and-one-half hours by Detective
Chris Mathson of the Fargo Police Department and Officer Shane Conroy of
Homeland Security. Before the interview began, Kukert was detained and was
informed of his Miranda rights. Kukert stated that after the video ended, M.S.
and K.K. put tape on his penis. Kukert also admitted during the interview to
having had sexual contact with M.S. on previous occasions. The State charged
Kukert with three counts of gross sexual imposition.
[¶4] In January 2020, Kukert moved to dismiss the charges, arguing the
State was relying solely on his uncorroborated statements made during the
investigative interview. The district court denied Kukert’s motion, finding the
video “certainly corroborates many aspects of [Kukert’s] confession.” The court
also found Kukert’s confession was sufficiently trustworthy, noting that Kukert
was not under any undue stress during the interview.
[¶5] In June 2020, Kukert moved to suppress his statements to law
enforcement, claiming he did not waive his Miranda rights during the
interview. Kukert also renewed his motion to dismiss.
1
[¶6] In support of his motion to suppress, Kukert submitted a report from Dr.
Jessica Mugge. Dr. Mugge reviewed Kukert’s interview with law enforcement
and tested Kukert on his understanding of Miranda rights. On the basis of her
evaluation, Dr. Mugge concluded:
“[I]t is a serious question as to whether Mr. Kukert had the
capacity to apply his constitutional rights to his particular
situation at the time of the interrogation, and his responses during
the recorded interview failed to show that he appreciated his
rights. As such, the manner in which officers assessed his
understanding failed to elicit responses from him that clearly
demonstrated whether, and to what extent, he appreciated his
rights and whether he was truly waiving them.”
[¶7] Dr. Mugge based her conclusion in part on an exchange between Kukert
and law enforcement at the beginning of the interview. After reading the
Miranda warning, Detective Mathson asked whether Kukert had any
questions about each of the Miranda rights. Kukert responded “no,” then added
“the only thing I’m curious about is why I’m here.” Mathson said, “We’ll
certainly explain that to you, but I just want to know that you’re agreeing to
speak with us today and we can hopefully shed some light on why you’re here,
but we’re just making sure you’re agreeing to speak with us. Is that okay?”
Kukert responded with, “It’s better to cooperate and hope for the best . . . than
to cause more problems.” Mathson stated, “Cooperation goes a long way. We
certainly want you to be truthful.” Mathson then interrogated Kukert about
the mobile phone video.
[¶8] The district court denied Kukert’s motion to suppress. The court found
that despite Dr. Mugge’s report and testimony on Kukert’s waiver of Miranda
rights, he scored well on the tests measuring his understanding of Miranda.
The court found that under the totality of the circumstances, law enforcement
properly explained Miranda and Kukert understood the consequences of
waiving his Miranda rights. The court also denied Kukert’s renewed motion to
dismiss, finding there was sufficient corroborating evidence for the case to go
to a jury. Kukert entered a conditional guilty plea.
2
II
[¶9] Kukert argues the district court erred by denying his motions to suppress
and dismiss.
[¶10] On appeal, a district court’s decision on a motion to suppress will not be
reversed if, after conflicting testimony is resolved in favor of affirmance, there
is sufficient competent evidence fairly capable of supporting the court’s
findings, and the decision is not contrary to the manifest weight of the
evidence. State v. Rai, 2019 ND 71, ¶ 5,
924 N.W.2d 410. We recognize the
importance of the district court’s opportunity to observe the witnesses and
assess their credibility, and we accord great deference to its decision in
suppression matters.
Id. Questions of law are fully reviewable on appeal, and
whether a finding of fact meets a legal standard is a question of law.
Id.
[¶11] This Court’s standard of review of a motion to dismiss in a criminal
proceeding is the same as our review of a motion to suppress. See State v. Nice,
2019 ND 73, ¶ 5,
924 N.W.2d 102; State v. Thill,
2005 ND 13, ¶ 6,
691 N.W.2d
230.
A
[¶12] Kukert claims the district court should have suppressed his statements
made during his interview with law enforcement because he did not
voluntarily, knowingly, or intelligently waive his Miranda rights. Kukert
argues Detective Mathson’s statement regarding cooperation denied him the
opportunity to fully understand his rights.
[¶13] The Fifth Amendment of the United States Constitution and N.D. Const.
art. I, § 12, provide that “[n]o person shall be . . . compelled in any criminal
case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 479
(1966), the United States Supreme Court held a person subjected to custodial
interrogation is entitled to four specific warnings to protect the privilege
against self-incrimination:
“He must be warned prior to any questioning that he has the right
to remain silent, that anything he says can be used against him in
a court of law, that he has the right to the presence of an attorney,
3
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.”
[¶14] Whether a defendant voluntarily, knowingly, and intelligently waived his
or her Miranda rights depends on the totality of the circumstances. State v.
Hunter, 2018 ND 173, ¶ 22,
914 N.W.2d 527. This Court described the focus of
the analysis for claims about whether a defendant has waived Miranda rights:
“First, the relinquishment of the right must have been voluntary
in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it. Only if the totality of the circumstances
surrounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived.”
State v. Brickle-Hicks, 2018 ND 194, ¶ 11,
916 N.W.2d 781 (quoting State v.
Webster,
2013 ND 119, ¶ 21,
834 N.W.2d 283).
[¶15] Statements to law enforcement may be involuntary even if law
enforcement has complied with the Miranda requirements. Hunter,
2018 ND
173, ¶ 22. We consider the totality of the circumstances and focus on two
elements to determine whether statements to law enforcement are voluntary:
“(1) the characteristics and conditions of the accused at the time of
the confession, including age, sex, race, education level, physical
and mental condition, and prior experience with police; and (2) the
details of the setting in which the confession was obtained,
including the duration and conditions of detention, police attitude
toward the defendant, and the diverse pressures that sap the
accused’s powers of resistance or self-control.”
Id.
[¶16] The district court issued its decision at the conclusion of the hearing on
Kukert’s motion to suppress. The court stated it had watched the video of law
enforcement’s interview with Kukert. The court found the interview was “a
give and take,” and “[law enforcement’s] conduct was conversational, the tone
4
was conversational.” The court found Kukert spoke just as much as the officers
did and “his answers were clear.” The court found Dr. Mugge’s testimony was
credible and acknowledged her opinion relating to Kukert’s ability to
understand and waive his Miranda rights. However, the court found “in
several of the tests he was rather perfect as far as understanding what the
Miranda rights were.” The court concluded:
“I believe [Kukert] had a requisite level of understanding of
the consequences of his decision, that he had a full awareness of
the nature of the rights being abandoned, and that he was fully
aware of the consequences of the decision to abandon it. He chose
to visit with law enforcement.
“That law enforcement talked about cooperation going a long
way—there is Eighth Circuit case law, Simmons vs. Bowersox, 235
F.3d 1124, [1133 (8th Cir. 2001)]—would be better for him is what
law enforcement used there, very similar to the situation here, that
doesn’t render in and of itself a confession involuntary.
“As a whole, totality of the circumstances, Miranda was
properly explained and he, Mr. Kukert, did demonstrate his ability
to appreciate the consequences of waiving his Miranda rights. So
the Court . . . [denies] the motion to suppress.”
[¶17] “Confessions are not voluntary when a defendant’s will is overborne at
the time the confession is given.” State v. Murray, 510 N.W.2d 107, 111 (N.D.
1994). “[S]tatements to the effect that it would be to a suspect’s benefit to
cooperate are not improperly coercive.” United States v. Ruggles,
70 F.3d 262,
265 (2d Cir. 1995).
[¶18] Here, the district court found law enforcement properly explained
Miranda to Kukert. There is no evidence Kukert’s will was overborne during
the interview. There is sufficient competent evidence supporting the court’s
findings on Kukert’s waiver of Miranda and the voluntariness of his
statements to law enforcement. The court’s decision denying Kukert’s motion
to suppress is not contrary to the manifest weight of the evidence.
5
B
[¶19] Kukert asserts that under the corpus delicti doctrine the district court
erred in denying his motion to dismiss. He claims there is no sexual act
or contact portrayed in the video, and the State relied solely on his
uncorroborated statements to law enforcement to support his convictions.
[¶20] “Corpus delicti” means “body of the crime.” Black’s Law Dictionary (11th
ed. 2019). “The state must be able to prove in a crime involving damage to
persons or property that the injury for which the accused confessed did occur,
and that some person was criminally responsible for it. These two factors
comprise the so-called corpus delicti.” Lufkins v. Leapley, 965 F.2d 1477, 1482
(8th Cir. 1992) (citing Wong Sun v. United States,
371 U.S. 471, 489 n. 15
(1963)). The general rule is “that an accused may not be convicted on his own
uncorroborated confession.” Smith v. United States,
348 U.S. 147, 152 (1954).
However, “[t]he evidence establishing the corpus delicti—independent of the
accused’s extrajudicial admission—need not be conclusive.” Lufkins, at 1482.
[¶21] This Court has mentioned the corpus delicti doctrine in earlier cases
relating to sufficiency of the evidence; however, we have not addressed an
argument similar to Kukert’s. See, e.g., Bell v. State,
2001 ND 188, ¶ 10,
636
N.W.2d 438; State v. Champagne,
198 N.W.2d 218, 227 (N.D. 1972); State v.
Gibson,
284 N.W. 209, 222 (N.D. 1938); State v. Sogge,
161 N.W. 1022, 1024
(N.D. 1917) (discussing the history of the common law doctrine).
[¶22] Courts that have addressed arguments similar to Kukert’s employ the
trustworthiness approach when analyzing whether a confession is sufficiently
corroborated:
“[W]here, as here, there is no tangible evidence of the crime
confessed, the Government must introduce substantial
independent evidence establishing the reliability or
trustworthiness of the defendant’s statement.
“One way in which the Government may establish a
confession’s trustworthiness is to offer independent evidence that
bolsters the accuracy of the confession itself, thereby proving the
offense through the statements of the accused. This corroborating
6
evidence need not be sufficient, on its own, to establish the body of
the offense beyond a reasonable doubt, or even by a preponderance
of the evidence. Rather, corroborative evidence is sufficient if it
merely fortifies the truth of the confession without independently
establishing the crime charged. The Government thus bears the
burden of offering enough evidence in support of the essential facts
of a confession to support a jury’s inference of their truth. [I]t is
required merely that the prosecution produce independent
evidence sufficiently supporting the essential admitted facts to
justify a jury inference of the truth of the admitted facts or tending
to establish the trustworthiness of the confession.
“Under this trustworthiness approach to the corroboration
rule, the quantity and type of independent evidence necessary to
corroborate a confession depends upon the facts of each case.
Corroborative facts may be of any kind, so long as they tend to
produce confidence in the truth of the confession. Thus,
circumstantial evidence may justify a jury’s inference that a
defendant’s statement is true.”
United States v. Kirk, 528 F.3d 1102, 1111-12 (8th Cir. 2008) (cleaned up); State
v. Dern,
362 P.3d 566, 581 (Kan. 2015) (stating “the trustworthiness standard
looks to the totality of the circumstances to assess both whether the crime
occurred and whether the confession was trustworthy—i.e., reliable”); State v.
Plastow,
2015 S.D. 100, ¶ 20,
873 N.W.2d 222 (“in cases where the defense has
moved to suppress an admission before it has been admitted into evidence, the
court may admit the statement upon the State’s showing of ‘substantial
independent evidence which would tend to establish the trustworthiness of the
statement’”).
[¶23] Analyzing a defendant’s statements or confession under the
trustworthiness approach appears to be the majority view. See 1 McCormick
on Evidence § 147(c) (8th ed. 2020); Dern,
362 P.3d at 580. Courts prefer this
approach for crimes involving inappropriate sexual contact where no physical
or forensic evidence is available, and crimes “involving the most vulnerable
victims, such as infants, young children, and the mentally infirm.” Dern, at 579
(quoting People v. LaRosa,
2013 CO 2, ¶ 31,
293 P.3d 567); State v. Mauchley,
2003 UT 10, ¶¶ 29-30,
67 P.3d 477.
7
[¶24] Here, the district court found Kukert’s statements to law enforcement
were trustworthy. The court found the video corroborated Kukert’s statements
to law enforcement. The court found there was “sufficient trustworthiness
shown by the evidence presented [to] the Court to corroborate [Kukert’s]
confession.”
[¶25] Kukert asserts the mobile phone video does not corroborate his
statements to law enforcement because there is no sexual contact depicted in
the video. The video showed Kukert sitting on a couch with his erect penis
exposed. The video included the following dialog between Kukert, K.K., and
M.S.:
K.K.: “Put it away. Put it away.”
Kukert: “Calm down . . . in order for this to work it has to be out.”
M.S.: “You can lay on the ground right here. Do it, K.K.”
K.K.: “I do not know what to do.”
Kukert: “Well then, come here.”
M.S.: “You just sit on it and move your butt.”
K.K.: “God, no.”
M.S.: “That’s how he did it to me. I laid down on my tummy and he
put his wiener in me. That’s how I did it. I did it once. I’m done
with it.”
In his interview with law enforcement, Kukert stated that after the video
ended, K.K. and M.S. put tape on his erect penis. He also admitted to having
sexual contact with M.S. on other occasions.
[¶26] The video is substantial independent evidence establishing the
trustworthiness of Kukert’s statements to law enforcement. Kukert exposed
himself to the minor females in the video. That, along with the accompanying
dialog, lends credibility to Kukert’s statements that he had sexual contact with
the minor females.
[¶27] The district court did not err in denying Kukert’s motion to dismiss.
There is sufficient competent evidence fairly capable of supporting the court’s
findings, and the court’s decision is not contrary to the manifest weight of the
evidence.
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III
[¶28] Kukert’s remaining arguments are either without merit or unnecessary
to our decision. The criminal judgment is affirmed.
[¶29] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
I concur in the result.
Lisa Fair McEvers
9
