STATE v. FOX (2026)

[¶1] Benito Awutu Jimmy Fox appeals from a criminal judgment entered after a jury found him guilty of continuous sexual abuse of a child. Fox argues the district court abused its discretion by not allowing him to present evidence of an alleged sexually explicit online relationship between the victim and an adult male. We affirm, concluding the court did not violate Fox's constitutional right to confrontation or abuse its discretion by excluding the evidence.

I

[¶2] In December 2024, the State charged Fox with continuous sexual abuse of a child—his stepdaughter. Fox moved under N.D.R.Ev. 412(b)(1)(C) “to present evidence that the accuser was involved in an inappropriate online relationship with an adult man,” which included “exchang[ing] sexual[ly] explicit messages and nude photographs with each other.” Fox asserted that his stepdaughter was motivated to fabricate allegations against him because she was “disciplined and the relationship was terminated.” The State opposed the motion, arguing the evidence was inadmissible under Rule 412(a), none of the exceptions under Rule 412(b) applied, and Fox failed to provide proper foundation.

[¶3] At the July 21, 2025 pretrial conference, the district court held an in camera Rule 412 hearing. Fox offered three categories of evidence—extracted from the victim's electronic devices—as the basis for the motion. Exhibit 1 contained a May 28, 2023 text message from the victim's mother to the victim, warning her not to “go to websites you are not supposed to go to.” Exhibit 2 was a Snapchat screenshot of a partially nude male. And Exhibit 3 contained roughly seventeen pages of Discord messages from March 2022, purportedly between the victim and an unidentified male, containing sexually explicit content. Fox represented that the mother would corroborate that she discovered the online conduct after checking her daughter's device, and that the daughter was disciplined as a result.

[¶4] On July 22, 2025, the district court issued a written order conditionally denying Fox's Rule 412 motion. The court reasoned that evidence attributing the discipline to a sexually inappropriate online relationship with an adult male fell within the scope of Rule 412(a), and that Fox had not made an adequate offer of proof to support the constitutional-rights exception under Rule 412(b)(1)(C). The court further explained that under the United States v. Pumpkin Seed, 572 F.3d 552 (8th Cir. 2009), framework the exclusion was not disproportionate to the purposes served by exclusion. The court concluded the motive theory was based on the discipline, not the sexually explicit reasons for discipline, and was further attenuated given the temporal gap between the 2022 Discord exchanges and the victim's 2024 disclosure of the sexual abuse. The court, however, allowed Fox to ask whether the victim was disciplined and upset from being disciplined, finding that such questioning was outside the scope of Rule 412. Additionally, the court identified three foundation deficiencies: the mother's message lacked context, the Snapchat image lacked any identifying information, and the Discord messages did not establish authorship by the victim or device of origin. The court “reserve[d] the right to revisit [its] ruling based on the evidence and testimony introduced during the State's case-in-chief.”

[¶5] A three-day jury trial began the same day. The jury found Fox guilty of continuous sexual abuse of a child. The district court sentenced Fox and entered judgment.

II

[¶6] Fox argues the district court abused its discretion by not allowing evidence of the victim's alleged sexually explicit online relationship with an adult male. According to Fox, that evidence exposes the victim's motive to fabricate the sexual abuse allegations after she was disciplined for that relationship. He contends the court violated his Sixth Amendment right to confront and cross-examine the accuser on her motive to fabricate.

[¶7] The State argues there is no confrontation violation because the district court permitted Fox to cross-examine on the alleged motive to fabricate (discipline and the victim's anger). In the State's view, the explicit sexual content was not necessary to elicit that motive theory, and the two-year gap between the 2022 Discord messages and the 2024 disclosure further attenuates the theory. The State contends the district court correctly weighed the policy interests at stake.

[¶8] A district court's evidentiary decision will not be reversed on appeal unless the court abused its discretion. State v. Martinez, 2015 ND 173, ¶ 31, 865 N.W.2d 391. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. “Our standard for reviewing a claimed violation of a constitutional right, including the right to confront an accuser, is de novo.” State v. Burton, 2025 ND 83, ¶ 7, 20 N.W.3d 136.

[¶9] The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI. “The Confrontation Clause provides two protections to criminal defendants: the right to physically face someone who testifies against them, and the right to cross examine.” State v. Woinarowicz, 2006 ND 179, ¶ 8, 720 N.W.2d 635. “Although the right to confront witnesses is of a constitutional magnitude, it ‘is not absolute and, in appropriate cases, may “bow to accommodate other legitimate interests in the criminal trial process.” ’ ” State v. Moen, 2025 ND 163, ¶ 5, 26 N.W.3d 560 (quoting State v. Fischer, 459 N.W.2d 818, 820 (N.D. 1990) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973))). “[L]imitations on a defendant's right to introduce evidence are permissible so long as they are not ‘arbitrary or disproportionate to the purposes they are designed to serve.’ ” United States v. Pumpkin Seed, 572 F.3d 552, 560 (8th Cir. 2009) (quoting Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991)).

[¶10] Under N.D.R.Ev. 412(a), “The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition.” As an exception in a criminal case, the court may admit “evidence whose exclusion would violate the defendant's constitutional rights.” N.D.R.Ev. 412(b)(1)(C). Fox argues this exception applies, asserting his constitutional right to confrontation was violated when the district court excluded the Rule 412 evidence.

[¶11] Fox contends the Sixth Amendment guarantees a defendant the right to cross-examine the accuser on her motive to fabricate, citing Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam). In Olden, the United States Supreme Court reversed a forcible sodomy conviction where the trial court barred the defendant from cross-examining the complainant about cohabiting with her boyfriend, including impeaching the complainant after she testified on direct examination that she was living with her mother. 488 U.S. at 230-31, 109 S.Ct. 480. The defendant asserted that he and the complainant engaged in consensual sexual acts and that the complainant—fearing her relationship with her boyfriend was at risk—lied to her boyfriend about being raped. Id. at 232, 109 S.Ct. 480. The Kentucky Court of Appeals upheld the conviction, concluding the cohabitation evidence was properly excluded because of the potential for racial bias stemming from the interracial relationship between the complainant and her boyfriend. Id. In reversing, the Supreme Court held that “a reasonable jury might have received a significantly different impression of the witness’ credibility had defense counsel been permitted to pursue his proposed line of cross-examination.” Id. (cleaned up). The Court concluded, “Speculation as to the effect of jurors’ racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the complainant's] testimony.” Id. While the Court concluded the limitation on cross-examination was “beyond reason,” it recognized reasonable limits may take into account factors such as “harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant.” Id. (alteration in original).

[¶12] In Pumpkin Seed, the defendant argued the district court erred in “excluding evidence purportedly showing that Red Cloud had a motive to falsely accuse him of rape—namely, evidence of Red Cloud's consensual sexual relationship with a married man and her false answer to the rape-kit interview question concerning her recent sexual activity.” 572 F.3d at 559. The defendant asserted this evidence was admissible under Fed. R. Evid. 412(b)(1)(C). Id. The Eighth Circuit concluded exclusion of the evidence was not arbitrary or disproportionate to the purposes served by exclusion. Id. at 560. Specifically, “exclusion saved Red Cloud from the harassment and embarrassment,” avoided possible confusion of the issues, and “prevented a thinly-veiled attack on Red Cloud's general credibility.” Id. The Eighth Circuit concluded the evidence lacked probative value:

Pumpkin Seed's theory of Red Cloud's motive to falsely accuse Pumpkin Seed of rape has little, if any, potential to demonstrate the falsity of her testimony. Red Cloud knew that she could not get pregnant from her married paramour as a result of her tubal ligation, and Pumpkin Seed has made no offer of proof showing that Red Cloud feared contracting STDs (which, by their nature, are not readily discoverable by the general public, thereby undermining her need for a cover story).

Id. at 561-62. The Eighth Circuit held the district court did not err in concluding the evidence was inadmissible under Fed. R. Evid. 412(b)(1)(C). Id. at 562.

[¶13] Here, the district court identified several justifications for exclusion, including saving the victim from harassment, embarrassment, and a “thinly veiled attack on her character”; and avoiding confusion of the issues by the jury. The court allowed part of Fox's intended line of questioning and did not prohibit Fox from asking whether the victim was disciplined and upset from being disciplined. The court concluded the sexually explicit evidence provided marginal probative value, noting the motive theory was based on the discipline, not the sexually explicit reasons for discipline.

[¶14] This case is different from Olden. In Olden, the defendant was prohibited from cross-examining the complainant at all concerning her motive to lie, even for impeachment purposes, after she testified on direct examination that she was living with her mother, directly contradicting the excluded evidence that she was cohabiting with her boyfriend. The cohabitation evidence had a “strong potential to demonstrate the falsity of [the complainant's] testimony.” Olden, 488 U.S. at 232, 109 S.Ct. 480. Here, the motive theory is attenuated: the victim's mother allegedly found out about the sexually explicit content or relationship and disciplined her daughter, and then the victim became upset and—almost two years later—retaliated against Fox by fabricating the allegations against him. While the court allowed questions concerning whether the victim was disciplined and upset, the sexual nature of the conduct prompting the discipline was not, in the court's view, necessary to elicit that anger or the resulting fabrication theory. Combined with the temporal attenuation between either the March 2022 Discord exchanges or the mother's May 2023 message and the victim's December 2024 disclosure of sexual abuse, the limitation is neither arbitrary nor disproportionate to the purposes served by exclusion. We conclude the court did not err in determining Fox's confrontation rights were not violated by prohibiting questions about the sexually explicit nature of the victim's alleged online relationship with an adult male. Nor did the court abuse its discretion by excluding the proffered evidence.

III

[¶15] We need not reach the other arguments, including whether the same evidence was properly excluded on the additional foundational grounds. The criminal judgment is affirmed.

Tufte, Justice.

[¶16] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese