This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Rhonda Little on behalf of her minor son, R.D.C.,
as parent and legal guardian,


Parents in Community Action (PICA),

Alex Doe,
individually, personally and in his capacity as an employee/agent of PICA,


Filed May 2, 2006


Minge, Judge


Hennepin County District Court

File No. PI 04-014070



Jesse Gant, III, Attorney at Law, 11536 Yancy Court NE, Blaine, MN 55449 (for appellant)


Michael A. Klutho, Carrie L. Hund, Bassford Remele, A Professional Association, 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for respondent PICA)


David L. Shulman, Law Office of David L. Shulman PLLC, 1005 West Franklin Avenue, Suite 3, Minneapolis, MN 55405 (for respondent Doe)


            Considered and decided by Minge, Presiding Judge; Randall, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court’s determination that appellant’s minor child, R.D.C., was not competent to testify and its dismissal of appellant’s claims.  We affirm.



            R.D.C. attended classes at respondent Parents in Community Action (PICA), a Headstart program, for about two months in the fall of 2003.  R.D.C. was three years old at the time.  Appellant Rhonda Little is R.D.C’s mother.  Respondent Alemaheyu Damte (Damte) is a teacher’s aide at PICA.  According to appellant, R.D.C. told her that during an outing to the Shrine Circus in October, Damte squeezed his hand so hard that it made his knuckles “pop.”  As a result, appellant reported to PICA that Damte physically abused R.D.C.  Damte acknowledged that he did hold R.D.C.’s hand, but claimed that it was to keep him from crawling over the seats.  When appellant subsequently met with the director of PICA, appellant stated that she was no longer concerned about this incident.

            In November 2003, appellant contacted the Minneapolis Police Department to report that Damte sexually abused R.D.C.  She stated that R.D.C. told her that “Alex put his wienny in my mouth” and “Alex put his finger in my butt.”  As a result, CornerHouse, which specializes in interviewing child victims of sexual abuse, interviewed R.D.C.  CornerHouse reported that the interview was inconclusive and that they could not determine whether sexual abuse had occurred.  In addition, appellant took R.D.C. to Children’s Hospital for an examination, which was also inconclusive on the issue of sexual abuse.

            In February 2004, appellant learned that another mother with a child at PICA claimed that her son, “M,” told her that Damte put his penis in M’s mouth.  Appellant immediately called PICA to ascertain the status of its investigation, stating that she knew that another parent also made allegations against Damte.  The next day, PICA placed Damte on administrative leave, pending the outcome of the criminal investigation.  CornerHouse interviewed M, who denied ever being sexually abused by Damte.  Later in the month, the Minneapolis police completed their investigation into appellant’s allegations, did not file any charges, and Damte returned to work.

            On September 17, 2004, appellant brought this action against PICA for negligence and negligent supervision and against Damte for assault and battery.  Appellant also alleged that PICA was liable for Damte’s actions under the doctrine of respondeat superior.  In February 2005, PICA moved for a judgment on the pleadings, pursuant to Minn. R. Civ. P. 12.03, and Damte moved for dismissal for failure to state a claim, pursuant to Minn. R. Civ. P. 12.02(e).  In addition, the district court made a sua sponte motion for summary judgment and heard arguments regarding all motions on March 18, 2005. 

            The district court notified the parties that, before ruling on the motions, it would question R.D.C. in chambers to determine whether he was competent to testify and that, if he were competent, counsel for PICA and Damte could question him.  The examination took place on April 29, 2005, when R.D.C. was four years old; all parties were present.  The court’s questioning lasted approximately 20 minutes.  Without ruling on competency, the district court permitted the attorneys to question R.D.C. on the record and in the judge’s presence.  The attorney for PICA questioned R.D.C. for approximately 40 more minutes.  The subjects ranged from competency-type questions to the underlying sexual-abuse issue.  Toward the end of the questioning, R.D.C. was crawling on the floor, largely ignoring the questions and had to be repeatedly directed to answer the questions being asked.  Subsequently, the district court determined that R.D.C. was not competent to testify.  Finding that appellant could not establish her case without R.D.C.’s testimony, the district court entered summary judgment in favor of PICA and Damte.  This appeal followed.


            A motion to dismiss for failure to state a claim and a motion for judgment on the pleadings, both governed by Minn. R. Civ. P. 12, may become a motion for summary judgment if the parties submit, and the court considers, evidence outside the pleadings.  Minn. R. Civ. P. 12.02, 12.03; Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 n.7 (Minn. 2000).  In such a case, Minn. R. Civ. P. 56 governs consideration of the motions.  Here, both PICA and Damte filed motions to dismiss.  Appellant, in opposing such motions, relied on evidence outside the pleadings, including affidavits and other documentary evidence.  The district court made its own sua sponte motion for summary judgment and ruled under rule 56 instead of rule 12.

            On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law.  Schafer v. JLC Food Sys., Inc., 695 N.W.2d 570, 573 (Minn. 2005); see also Minn. R. Civ. P. 56.03.  The district court’s factual findings will be reversed only for clear error.  In re Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 49 (Minn. 2000).  However, this court will not defer to the district court’s interpretation of the law, which is reviewed de novo.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).  To survive summary judgment, a claim must be supported by substantial evidence, and the party opposing summary judgment must do more than rest on “mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70, 71 (Minn. 1997).  The reviewing court will view the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Appellant is the nonmoving party.

            I.          COMPENTENCY

            The first issue is whether the district court abused its discretion in finding R.D.C. not competent to testify.  “The determination of a witness’ competency is one peculiarly for the trial court to consider.”  State v. Lau, 409 N.W.2d 275, 277 (Minn. App. 1987).  Such a determination rests within the sound discretion of the district court.  State v. Sime, 669 N.W.2d 922, 925 (Minn. App. 2003).  A child is presumed competent to testify unless the district court specifically finds that the child lacks competency.  Minn. Stat. § 595.02, subd. 1(m) (2004); see also State v. Brovold, 477 N.W.2d 775, 778-79 (Minn. App. 1991) (holding that a three-year-old child was competent to testify), review denied (Minn. Jan. 17, 1992); State v. Ross, 451 N.W.2d 231, 236 (Minn. App. 1990) (holding that a four-year-old child was competent to testify because she gave correct responses to simple questions despite other troubling answers given at competency hearing), review denied (Minn. Apr. 13, 1990).  Any doubts as to the child’s competency should be resolved by finding the child competent.  State v. Lanam, 459 N.W.2d 656, 660 (Minn. 1990).

            Minn. Stat. § 595.02, subd. 1(m), requires the district court to engage in a two-part analysis when determining competency.  See State v. Struss, 404 N.W.2d 811, 814 (Minn. App. 1987), review denied (Minn. June 9, 1987).  The district court must conclude that the child has (1) the capacity to tell the truth and (2) the ability to recall facts.  Id.  A competency determination is not the same as a credibility determination.  Lanam, 459 N.W.2d at 660.  “[T]he court should determine in a general way whether the child remembers or can relate events truthfully.”  Id. at 659-60.  At the competency hearing, the district court usually asks children where they go to school, their age, if they know who the judge is, and if they know what a lie is and the consequences for telling a lie.  State v. Scott, 501 N.W.2d 608, 615 (Minn. 1993) (quoting Kentucky v. Stincer, 482 U.S. 730, 741, 107 S. Ct. 2658, 2665 (1987)).  The district court should refrain from asking questions that relate to the factual basis of potential testimony.  Id.[1]

            A child who can relate her age and birthday, but is otherwise “unresponsive even to simple preliminary questions” is not competent to testify.  State v. Oslund, 469 N.W.2d 489, 493 (Minn. App. 1991), review denied (Minn. July 24, 1991).  Conversely, failing to recall the names of individuals who are not a significant part of the child’s daily life does not support a finding of incompetence, especially where the child displays an ability to tell the difference between the truth and a lie.  See Brovold, 477 N.W.2d at 778-79.  In Brovold, the judge asked the child whether the pen she held up was a paint brush and the child replied, “That’s not the truth.”  Id. at 778.  In addition, the judge asked if it was true that the child’s shirt was blue, and she knew it was not blue but green.  Id. at 779.  Although the child had trouble telling time, we held that the ability to tell time was unrelated to accurately relating facts regarding events.  Id.  In Brovold, we concluded that the record supported the district court’s finding of competency.  Id.

            Here, a hearing was held in chambers to determine the competency of four-year-old R.D.C.  The district court began by asking R.D.C. his name.  He knew his first name but not his last name or the name of his father.  R.D.C. did correctly indicate that he was then four and that he had a baby sister, whose first name he knew.  R.D.C. also told the court that he liked to play video games and briefly commented on that activity.  However, R.D.C. stated that he did not know what it meant to tell the truth.  In addition, while R.D.C. knew that his baby sister was not a boy, he could not determine whether the judge was telling the truth about the color of her sweater.  Finally, R.D.C. stated that he feared a “whoopin” from appellant if he could not tell what Damte did to him.  After evaluating R.D.C.’s testimony, the district court determined that R.D.C. was not competent. 

            In reviewing the competency determination, this court has carefully reviewed all transcripts and tapes that are part of the record in this proceeding.  They certainly indicate that it is challenging to interview a young child.  Everyone who interviewed R.D.C. had difficulty eliciting answers from him.  The district court established a basis for its competency determination by asking R.D.C. several general questions designed to ascertain whether he could relate facts accurately and understood the obligation to tell the truth.  While R.D.C. did answer several basic questions, it appears that he often did not answer questions coherently and that he did not understand the obligation to tell the truth.  We conclude that the district court did not abuse its discretion in determining that R.D.C. was not competent to testify. 

            We do note that the district court inquired into the factual basis of the allegations when trying to determine competency and that the court sat in on the questioning of R.D.C. by the attorney for PICA.  A competency hearing is not a credibility test, and the district court should limit itself to asking general questions and consideration of that inquiry.  To the extent that the district court based its competency determination on R.D.C.’s confused and contradictory responses to questions dealing with the alleged sexual abuse, it was error.  However, we conclude that the evidence of R.D.C.’s ability to recall facts and capacity to tell the truth was so marginal that any such error was harmless.

            Appellant asserts that questioning R.D.C. for one hour in the judge’s chambers was improper.  A young child’s attention span is limited and, if questioning is lengthy, the child’s answers and conduct will deteriorate.  The record indicates such deterioration occurred here.  The deposition was allowed to continue too long; by the end, R.D.C. was crawling on the floor and not answering questions.  However, the district court’s questioning was done at the outset, and there was an adequate basis for determining that R.D.C. was not competent.  Although the deteriorating answers affect the value of R.D.C.’s deposition and perhaps its admissibility, we note that because of the ruling on competency, the deposition was not admitted into evidence anyway.  Despite our agreement with appellant that the prolonged questioning was improper, given the other evidence of incompetency, we do not consider it reversible error on this record.

            Appellant also urges that we reverse the competency decision on the basis that the district court implicitly found R.D.C. competent by allowing him to be questioned.  Appellant bases this claim on the district court’s April 14, 2005, order scheduling the competency hearing, in which the district court stated that if it found R.D.C. competent, then a deposition would follow.  After its questioning, the court allowed respondents to take R.D.C.’s deposition.  Appellant now claims that by allowing the deposition, the district court made a de facto determination of competency.  However, appellant’s own attorney acknowledged at the conclusion of the April 29 competency hearing that he understood that the district court had not yet made a specific finding on competency.  Based on that concession, the record in this case, and the well-established principle that the district court has substantial discretion in managing litigation, see State v. Blom, 682 N.W.2d 578, 609 (Minn. 2004), we conclude that this argument for competency is without merit and reject it.

            II.        CORROBORATION

            The second issue is whether the district court erred in granting summary judgment because of a lack of corroborating evidence to substantiate appellant’s claims.

                        A.        Hearsay statements

            Appellant submits that a number of taped interviews with R.D.C. corroborate the sexual-abuse allegations.  Although the taped conversations are hearsay statements, some out-of-court statements by a child are admissible:

An out-of-court statement made by a child under the age of ten years . . . alleging, explaining, denying, or describing any act of sexual contact or penetration performed with or on the child or any act of physical abuse of the child . . . , not otherwise admissible by statute or rule of evidence, is admissible as substantive evidence if:

            (a) the court or person authorized to receive evidence finds, in a hearing conducted outside of the presence of the jury, that the time, content, and circumstances of the statement and reliability of the person to whom the statement is made provide sufficient indicia of reliability; and

            (b) the child . . . :

                        . . .

                        (ii) is unavailable as a witness and there is corroborative evidence of the act; . . . .

For purposes of this subdivision, an out-of-court statement includes video, audio, or other recorded statements.  An unavailable witness includes an incompetent witness.

Minn. Stat. § 595.02, subd. 3 (2004).

            To determine reliability, the court will consider whether the statements were spontaneous and consistent, whether the declarant and witness were motivated to speak truthfully, the time between the events and the statements, and the suggestiveness of leading questions.  Lanam, 459 N.W.2d at 660; see, e.g., State v. Cole, 594 N.W.2d 197, 198 (Minn. App. 1999).  For example, statements made to a health-care worker indicate reliability.  See State v. Larson, 472 N.W.2d 120, 126 (Minn. 1991).

            Here, R.D.C. was deemed unavailable because he was found not to be competent to testify.  Therefore, to be admissible, the tapes and other evidence must have sufficient indicia of reliability and there must be corroborative evidence of the act.  Minn. Stat. § 595.02, subd. 3.  R.D.C.’s statement to Sergeant Swalve is not helpful.  Even though Sergeant Swalve asked numerous leading questions about possible sexual encounters and about Damte (which themselves compromise reliability), R.D.C. was unable to give any further details about the alleged abuse.  This tape failed to meet the requirements of section 595.02, subdivision 3.

            Moreover, R.D.C.’s taped statement to his mother is also problematic.  It was taken a year after the alleged abuse and is peppered with leading questions.  R.D.C.’s comments about abuse are elusive.  Even though his mother is asking the questions, R.D.C. is frequently not responsive.  We conclude the district court did not abuse its discretion in excluding that tape.

            Finally, we also note that there was no corroborating evidence of abuse by professionals who examined R.D.C.  The CornerHouse interview was conducted immediately after the abuse was reported, and yet R.D.C. does not make specific claims of abuse.  The conclusion by CornerHouse staff that the interview was inconclusive is generous to the claims of appellant.  The examination by medical personnel at Children’s Hospital found no corroborating physical evidence of sexual abuse.  Therefore, without any relevant or admissible corroborating evidence, and without R.D.C.’s testimony, appellant cannot withstand summary judgment.

                        B.        Discovery from other children

            Appellant argues that the district court abused its discretion by failing to order the discovery of statements made by other alleged sexual-abuse victims.  “[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.”  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Minnesota Rule of Civil Procedure 26.02(a) allows a party to obtain relevant discovery that “appears reasonably calculated to lead to the discovery of admissible evidence.”

            Appellant moved to compel the discovery of records possessed by the Minneapolis Police Department and CornerHouse that relate to their interviews of M, another student allegedly abused at PICA by Damte.  After an in camera review of the police reports and videotaped CornerHouse interview, the district court determined that M denied being sexually abused and that these documents would not lead to any relevant evidence and denied appellant’s request.  Appellant’s reliance on State v. Wermerskirchen, 497 N.W.2d 235 (Minn. 1993), is misplaced.  In that case, other women came forward to testify that the defendant had sexually abused them, and the evidence was admitted to demonstrate an ongoing pattern of improper behavior by the defendant.  Id. at 242.  In our case, appellant does not demonstrate how discovery of M’s denial of sexual abuse by Damte would lead to any relevant, admissible evidence.

            The record also indicates that R.D.C. identified “B” and “E” as other potential victims of sexual abuse at PICA and sought to depose them as well.  Although potentially helpful, because it might show a pattern of behavior by Damte in abusing children, this evidence would not establish that R.D.C. was actually abused.  Furthermore, the parents of the other children objected because their children had made no such claims of sexual abuse to them and because they worried about the stigmatizing effect of such allegations on their children.  The district court did not abuse its discretion in denying discovery from the other alleged victims.

            III.       MOTIONS

            The final issue is whether the district court abused its discretion by failing to rule on appellant’s motion for clarification of its order denying his motion to compel.

            At the time of summary judgment, appellant was attempting to depose the director of PICA.  Appellant claims that the district court’s ruling on an earlier motion to compel was ambiguous, that the deposition of the director should have been allowed, and that the deposition results would have bolstered her claims.  However, the record indicates that appellant had the director’s records and notes of her contacts with appellant, Sergeant Swalve, and the parents of other allegedly abused children.  These records do not point to a genuine issue of material fact, and appellant has not indicated what relevant evidence she hoped to obtain from the deposition.  Cf. Lewis v. St. Cloud State Univ., 693 N.W.2d 466, 474-75 (Minn. App. 2005) (holding that “mere speculation” that relevant evidence may exist is not sufficient to meet burden of establishing need for additional discovery), review denied (Minn. June 14, 2005).  Also, there is no indication that the deposition would lead to evidence relevant to R.D.C.’s competency.  The district court’s summary judgment decision was based on the competency of R.D.C. and ended the litigation.  Under the circumstances, we conclude that the district court’s failure to rule on appellant’s motion for clarification was not an abuse of discretion.

            Appellant also challenges the district court’s failure to rule on her motion to amend her complaint to claim punitive damages.  Given the summary judgment decision, there is no basis for a punitive damages claim.

            IV.       RACIAL BIAS

            Before both the district court and this court, appellant has alleged racial bias in these proceedings.  This court is very sensitive to allegations of racial bias and takes them very seriously.  We have carefully and laboriously reviewed the record.  We have listened to each taped interview with R.D.C. and read the transcript of the competency hearing.  After this review and consideration of the bias claims, we find no objective indicia of bias.  While a perception of hostility and bias is unfortunate, we do not reopen proceedings without objective evidence. 

            Although there was error in certain aspects of the competency hearing, on the record before us, we conclude that the district court did not err in its fundamental conclusions regarding R.D.C.’s competency and the lack of a prima facie case.


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

[1] The Minnesota Judges Criminal Benchbook (2004) echoes this standard.  See [1982-2004] Minn. Judges Crim. Benchbook 2204 (Minn. State Ct. Adm’r Office, Sept. 2004).