This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-529

 

Martin Leroy Wichryk, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 7, 2003

Affirmed

Kalitowski, Judge

 

Stearns County District Court

File No. K6-02-596

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Sam D. Young, Assistant County Attorney, 705 Courthouse Square, Room 448, St. Cloud, MN 56303-4701 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Martin Leroy Wichryk challenges his conviction of malicious punishment of a child in this postconviction appeal, arguing that the district court abused its discretion in determining that (1) the victim was competent to testify; and (2) an alleged recantation by the victim was not genuine.  We affirm.

D E C I S I O N

 

I.

            A finding of a child’s competency as a witness is within the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Cermak, 350 N.W.2d 328, 332 (Minn. 1984).  Minnesota law provides:

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 child describing any act or event may use language appropriate for a child of that age.

Minn. Stat. § 595.02, subd. 1(m) (2002).  In determining competency, courts require a witness to understand the obligation of taking an oath and to be capable of correctly narrating the facts to which his or her testimony relates.  Cermak, 350 N.W.2d at 331-32.  The obligation of the oath has been interpreted as primarily an understanding of the necessity to tell the truth.  Id. at 332.  And although competency has to do with a witness’s ability to remember and relate events, this means the ability to remember and relate events generally, not the specific events which lie at the heart of the case.  State v. Scott, 501 N.W.2d 608, 615 (Minn. 1993). 

          First, appellant contends that the district court abused its discretion in determining that S.W. understood the necessity to tell the truth.  When asked “what is a lie,” S.W. responded that she did not know.  And only after the district court asked S.W. leading questions did S.W. give an indication that she understood what it meant to tell a lie. 

Although nonleading questions are preferred, a district court’s determination of witness competency will not be upset solely because leading questions were used during the competency examination.  State v. Fader, 358 N.W.2d 42, 45 (Minn. 1984).  In response to leading questions, S.W. was able to show an understanding of the necessity to tell the truth.  When asked what happens if you tell a lie, S.W. answered that “you get a time out.”  S.W. was then asked if lying is a good thing or a bad thing, and S.W. responded that it is a “bad thing.”  The district court then asked S.W. if she understood that she always needed to tell the truth in court, and the transcript indicates that S.W. shook her head up and down.  Finally, the district court asked S.W. if she would tell the court what she knew to be the truth, and again S.W. shook her head up and down.  Thus, S.W. indicated that she could distinguish between the truth and a lie and had an appreciation for the difference and the record supports the district court’s finding that S.W. has the capacity to tell the truth and understood the necessity to tell the truth.

          Second, appellant contends that the district court abused its discretion in determining that S.W. was capable of correctly narrating the facts to which her testimony related.  In support of his argument, appellant points to the incorrect answers that S.W. gave to questions during the competency examination.  Given the inaccurate answers to basic questions, appellant contends that S.W. was incapable of accurately relating the facts to which her testimony related. 

But while S.W. answered some questions incorrectly, she also answered many questions correctly.  She knew her name and could identify her mother and father by their correct names.  S.W. was also able to accurately state that she has two brothers and one sister.  Moreover, she correctly told the district court the names of her siblings and also provided the court with the names of some of her teachers and some of her friends.  

And if the court has doubts about the child’s competency, “it is best to err on the side of determining the child to be competent.”  State v. Lanam, 459 N.W.2d 656, 660 (Minn. 1990).  Given the standard of review and also S.W.’s ability to answer several questions correctly, the district court did not abuse its discretion in determining that S.W. had the ability to recall facts and relay information accurately and was thus competent to testify at trial.

            Finally, appellant argues that even if the district court did not abuse its discretion in determining that S.W. was competent to testify, the nonresponsive answers that S.W. gave during her trial testimony resulted in a denial of appellant’s Sixth Amendment right to confront his accuser.  We disagree.

            The primary right guaranteed by the confrontation clause of the United States Constitution is the opportunity to cross-examine and impeach witnesses.  State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).  Embodied in the right to due process is the right of the accused to present a complete defense.  State v. Voorhees, 596 N.W.2d 241, 249 (Minn. 1999). The confrontation clause envisions a cross-examination of the witness in which the accused has the opportunity to test the recollection, the conscience, and the credibility of the witness.  Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S. Ct. 2531, 2537-38 (1980).  The right guarantees the ability to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.  State v. Goldenstein, 505 N.W.2d 332, 340 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).

            A review of the trial transcript reveals that S.W. was able to sufficiently answer the questions asked of her during her testimony.  While many of S.W.’s answers did not involve verbal responses to the questions, S.W.’s physical gesture of shaking her head allowed the parties to understand when S.W. was answering yes and when she was answering no.  And appellant was able to conduct an effective cross-examination by testing S.W.’s recollection and credibility.  Appellant was able to establish that S.W. has trouble seeing without her glasses and that her parents have to remind her to wear her glasses.  Given S.W.’s testimony, we conclude that appellant was not denied his right to present his version of the facts.  See State v. Cermak, 442 N.W.2d 822, 825 (Minn. App. 1989) (noting that the fact that the cross-examination did not persuade the jury that the children were lying or could not remember the events clearly does not mean that the defendant was denied his constitutional right to confrontation).

II.

            We review the findings of a postconviction court under an abuse of discretion standard.  Voorhees v. State, 627 N.W.2d 642, 648 (Minn. 2001).  And “[a] petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.”  Ferguson v. State, 645 N.W.2d 437, 442 (Minn. 2002). 

            Courts have traditionally looked with disfavor on motions for a new trial based on recantation unless there are extraordinary and unusual circumstances.  State v. Hill, 253 N.W.2d 378, 384 (Minn. 1977).  Where a witness has recanted or it has been discovered that false testimony was given at the trial, the so-called “Larrison rule” applies.  See Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928).  Under the Larrison rule, appellant must meet three criteria:  (1) the court must be “reasonably well satisfied” that the testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) appellant was taken by surprise at trial or did not know of the falsity until after trial.  Id.  The Minnesota Supreme Court stated in Ferguson, however, that “Larrison’s third prong should not be an absolute condition precedent to granting a new trial.”  645 N.W.2d at 445.  Instead, the appropriate focus of the test is on the first and second prongs:  the validity of the recantation and its potential effect on the outcome of the trial.  Id.

To support appellant’s claim of recantation by the victim, appellant submitted an affidavit by S.W.’s mother.  The affidavit states that on at least four separate occasions since appellant’s sentencing, S.W. has denied that appellant hit her.  The affidavit notes that S.W.’s story has changed several times.  “Sometimes she says she walked into a wall and sometimes she says her father will not hit her again.” 

            We conclude that the district court did not abuse its discretion in finding that the statements attributed to S.W. in the mother’s affidavit do not sufficiently establish that S.W.’s trial testimony was false.  Rather, the statements continue to show the inconsistency in S.W.’s story.  And this inconsistency was already introduced through witness testimony at trial.  S.W.’s mother, the mother’s cousin, and appellant’s girlfriend all testified that S.W. stated that she ran into a door.  But S.W.’s mother, the mother’s cousin, a social worker, and a detective also testified that S.W. told them that appellant hit her.  The jury, as the trier of fact, heard the inconsistent testimony and determined the witness credibility and the weight to be given to the testimony.  Stall v. First Nat'l Bank of Buhl, 375 N.W.2d 841, 845 (Minn. App. 1985).  And the district court did not abuse its discretion in determining that the statements S.W. made after the trial did not establish a genuine recantation. 

            Finally, in his pro se supplemental brief, appellant argues that during the pretrial hearing to determine the admissibility of a videotaped interview of S.W. by a social worker and a detective, the district court erred by not allowing appellant to question S.W.’s mother concerning how she asked S.W. about the alleged incident.  But this issue was not raised in the postconviction petition and is therefore waived.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Affirmed.