This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-628

 

 

In the Matter of the Welfare of:

 

L.P.B.

 

 

Filed November 20, 2001

Affirmed in part, reversed in part, and remanded

Harten, Judge

 

 

Hennepin County District Court

File No. J7-00-50616

 

 

Leonardo Castro, Chief Public Defender, Jennifer K. Mrachek, Renee J. Bergeron, Assistant Public Defenders, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges his adjudication as delinquent for first-degree criminal sexual conduct, arguing that the juvenile court abused its discretion by finding that the victim was competent to testify and by admitting the victim’s videotaped interview.  Appellant also contends that his disposition in an out-of-home sex offender treatment program was an abuse of discretion, and the parties agree that the juvenile court did not make the written findings required by statute for the disposition.  Because we see no abuse of discretion as to the adjudication, we affirm it; because we agree that the findings are inadequate to support the disposition, we reverse and remand for further findings.

FACTS

 

            During his childhood and adolescence, appellant L.P.B., now age 18, frequently spent time at his grandmother’s Minneapolis home with several cousins, among them A.A., now age 10.  In 1999, A.A. went to visit his other grandmother.  After they watched a TV show on which sexual abuse of children was a topic, A.A. informed his grandmother that L.P.B. had abused him in 1998. A.A.’s grandmother informed his mother, who informed the police.  A.A. was taken to CornerHouse and interviewed by a professional trained and experienced in interviewing child victims of abuse. 

L.P.B. was charged with criminal sexual conduct.  At trial, the videotape of the CornerHouse interview was admitted as corroborative evidence of A.A.’s testimony, over the objection of L.P.B.’s attorney.  L.P.B. was adjudicated delinquent and committed to the residential Hennepin County Home School Sex Offender Program.  

            On appeal, he challenges both his adjudication and his disposition, contending that the juvenile court abused its discretion in finding A.A. competent to testify, in admitting the videotape of the interview, and in committing appellant to the residential sex offender program.  Respondent State of Minnesota agrees with appellant that the district court failed to make the dispositional findings required by statute.

D E C I S I O N

 

1.         Competency

 

            Minn. Stat.  595.02, subd. 1(m) (2000), provides that:

A child under ten years of age is a competent witness unless the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined.

 

A finding of competency is within the trial court’s discretion and will not be reversed absent an abuse of that discretion.  State v. Brovold, 477 N.W.2d 775, 778 (Minn. App. 1991), review denied (Minn. Jan. 17, 1992).  The juvenile court found:

His testimony contained no exaggeration of the original facts reported and his language and [a]ffect [were] consistent with his age, maturity and experience.

 

The record supports the juvenile court’s finding.  Despite the intervals between the abuse in February-September 1998, the CornerHouse interview in October 1999, and the trial in November-December 2000, A.A. did not embellish his original story and never expressed anger toward appellant. 

            Moreover, both the videotape of the interview and the transcript of the trial show that A.A. understood the difference between the truth and falsehood. A.A. meets the statutory requirement of being able to “relate truthfully.”  There was no abuse of discretion in permitting him to testify.        

2.         Admission of the Videotape

            Appellate courts largely defer to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Minn. R. Evid. 801(d)(1)(B) (2001) provides that a statement is not hearsay if it is “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.”  Appellant concedes that the videotape would have been helpful to the juvenile court in evaluating A.A.’s credibility as a witness, but contends that it was inadmissible because it was not consistent with A.A.’s testimony.  See State v. Bakken, 604 N.W.2d 106, 110 (Minn. App. 2000) (where inconsistencies between the prior statement and the testimony directly affect the elements of the criminal charge, the rule 801(d)(1)(B) requirement of consistency is not satisfied), review denied (Minn. Feb. 24, 2000).

            Here, the inconsistencies did not affect the elements of the criminal charge.  Appellant was charged with criminal sexual conduct in the first degree under Minn. Stat. 609.342, subd. 1(a) (1998), because he engaged in sexual penetration (defined in Minn. Stat. 609.341, subd. 12 (1998), as including fellatio) with a person under 13 when he was more than 36 months older than the complainant.  A.A.’s testimony and the videotape are absolutely consistent on three facts:  (1) A.A. was six or seven when the abuse occurred; (2) L.P.B is almost eight years older than A.A.; and (3) L.P.B. engaged in fellatio with A.A. and compelled A.A. to engage in fellatio with him.

            The inconsistencies did not pertain to essential elements of the crime: rather they concerned how A.A.’s clothes were removed, how L.P.B.’s penis appeared to A.A., where the abuse occurred, whether semen was emitted, and what threats L.P.B. made.  Therefore, appellant’s reliance on Bakken is misplaced.  There was no abuse of discretion in admitting the videotape.

3.         Disposition

            The parties agree that the district court failed to make sufficient written findings pursuant to Minn. Stat. 260B.198, subd. 1(m) (2000), which requires written findings as to why the disposition serves the child’s best interests and why alternative dispositions were found inappropriate.  See In re Welfare of J.S.S., 610 N.W.2d 364, 365 (Minn. App. 2000) (reversing a disposition because of the district court’s failure to make sufficient findings).  We therefore reverse the disposition and remand for appropriate written findings. [1]

            Affirmed in part, reversed in part, and remanded.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although we express no opinion on the ultimate disposition, we note that it is supported by the record and follows the recommendations of both the clinical psychologist who evaluated L.P.B. and the pre-disposition report.