This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Kristian George Wyrobek,



Filed May 29, 2007

Affirmed in part, reversed in part

Worke, Judge


Hennepin County District Court

File No. 05046788



Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota St., St. Paul, MN  55101; and


Robert D. Goodell, Marcy Crain, Special Assistant Hennepin County Attorneys, Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for appellant);


Julie Loftus Nelson, Frederic Bruno & Associates, 5500 Wayzata Boulevard, Suite 1450, Minneapolis, MN  55416 (for respondent)


            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.


U N P U B L I S H E D   O P I N I O N


WORKE, Judge

            The state appeals a pretrial order ruling that the alleged victim of sexual abuse is incompetent to testify and that most of her out-of-court statements are inadmissible.  Respondent challenges the district court’s denial of his motion to dismiss the complaint based on, among other things, spoliation of evidence and collusion.  Because we conclude that the district court did not abuse its discretion in denying the motion to dismiss, but did abuse its discretion in ruling that the alleged victim is not competent to testify, we affirm in part and reverse in part.



Respondent Kristian George Wyrobek was charged with first-degree criminal sexual conduct, after it was alleged that on or about July 1, 2003, to July 17, 2005, he engaged in sexual penetration of his daughter, K.W.  K.W. was six years old at the time the complaint was filed. 

            At the competency hearing, the district court examined then-seven-year-old K.W.  After questioning K.W. about her family and school, the court asked K.W. about her conversation with the prosecutors before the hearing.  K.W. testified that the prosecutors told her to tell the truth, but did not say what would happen if she failed to tell the truth.  The court then asked K.W. true-or-false questions about various objects the judge showed her; K.W. answered correctly.  The court also asked K.W. if her family had rules about telling the truth.  Although K.W. indicated that her family did have such rules, she could not identify any consequences attached to not telling the truth.  K.W. testified that Dr. Julia Davis, her treating psychologist, did not tell her what would happen if she did not tell the truth, and that they had had no such talks about consequences at school.

            The state presented testimony of Dr. David Einzig, who had worked with K.W. for approximately one year at Children’s Hospital.  Dr. Einzig testified that K.W. lacked insight and had poor judgment, but that there was nothing to indicate that she was unable to distinguish truth from falsity.  Dr. Einzig testified that K.W. was old enough to have consequences for not telling the truth.  Dr. Davis testified that K.W. was “articulate,” and that she could tell fantasy from reality, she believed K.W. was able to understand an instruction to tell the truth, and that K.W. was “excellent” at recalling and describing events accurately.

            The defense presented testimony of Candace Barr, the guardian ad litem in the Wyrobek dissolution proceeding, who testified that she had spent time with all of the Wyrobek children.  Barr testified that there was “very little discipline” in the home, but that she did not notice any untruthfulness on K.W.’s part.  Dr. Jane McNaught Stageberg, a psychologist, testified about the concept of suggestibility, or susceptibility to the bias of an interviewer, as well as “enmeshment,” or a lack of separation between K.W.’s reality and her mother’s.  Dr. McNaught Stageberg testified that “enmeshment” and “suggestibility” have an effect “on a child’s ability and capacity to remember or relate truthfully facts concerning sexual abuse[.]”  Dr. McNaught Stageberg testified that a child who has poor insight and judgment may have trouble remembering or truthfully relating the facts regarding abuse.  She also testified that children should receive consequences at home and at school for not telling the truth. 

The district court ruled that K.W. was not competent to testify at trial, stating: 

K.W., on the other hand, showed surprising lack of belief that there was merit in telling the truth and her answer that telling the truth is neither good nor bad [-] I don’t think [-] makes that second portion of the first part of the Brovold test.  What we are looking at here is not only someone who can distinguish the truth from falsehood, but does and believes there is a reason to do so.  And this child at this point, it would appear, doesn’t see any particular merit in that.


The district court then held a hearing to assess whether K.W.’s out-of-court statements could be admitted without violating the Confrontation Clause.  The state sought to introduce K.W.’s: (1) initial report on July 19, 2005, to her mother; (2) July 19 statement to Dr. Paul Zenker in the Children’s Hospital emergency room; (3) July 21 interview at CornerHouse; (4) July 22 statement to Dr. Paula Fink at Children’s Hospital; (5) July 25 statement to Bev Orr, the child-protection worker; and (6) statements made to Dr. Davis during therapy from August 2 to August 17.  The court ruled that the Cornerhouse interview and K.W.’s statements to Drs. Zenker, Fink, and Davis and the child-protection worker, Bev Orr, were not admissible.  But the court ruled that K.W.’s initial report to her mother was admissible.  This appeal follows.


On appeal from a pretrial order suppressing evidence, the state “must clearly and unequivocally show both that the [district] court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted)..  The district court’s pretrial rulings have barred K.W.’s testimony as well as most of her out-of-court statements.  Respondent does not argue that these rulings, taken together, lack critical impact.


The state argues that the district court abused its discretion in ruling that K.W. is not competent to testify at trial.  A finding of a child’s competency to testify at trial will not be reversed absent a clear abuse of discretion.  State v. Brovold, 477 N.W.2d 775, 778 (Minn. App. 1991), review denied (Minn. Jan. 17, 1992).  And in this pretrial appeal, the state bears the burden of showing clear error. 

A child under the age of ten is presumed to be competent “unless the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined.”  Minn. Stat. § 595.02, subd. 1(m) (2004).  Case law incorporates this two-prong test of “(1) the capacity to tell the truth, and (2) the ability to recall the facts.”  Brovold, 477 N.W.2d at 778.

The state argues that the district court clearly erred in finding that K.W. lacked a capacity to tell the truth because when K.W. was asked “whether it was good or bad to tell the truth, K.W. responded that it was neither good nor bad.”  We agree.  The district court asked K.W. a number of questions about the consequences of telling the truth or not telling the truth.  The following exchange seemingly led to the district court’s finding: the district court asked K.W., “Do you think a good thing would happen to you if you didn’t tell the truth or a bad thing?”; K.W. replied, “Not really a good or a bad thing.”  (Emphasis added).  But the district court did not ask K.W. whether she thought it was a good or a bad thing to tell the truth, or any similar question aimed at her perception of the virtues of truth-telling, as opposed to the consequences that might be imposed on her for not telling the truth.

The district court’s finding that K.W. said it was “neither good nor bad” to tell the truth appears to have had a significant impact on its ruling that K.W. was not competent to testify.  In analyzing the competency issue, the court noted that “K.W. showed surprising lack of appreciation for the merit of telling the truth.”  The court then concluded that K.W. did not meet the first prong of the competency test (capacity to tell the truth) “because while she was able to distinguish truth from falsehood, she did not acknowledge there was any merit in making the distinction.”

The first prong of the statutory competency test requires “capacity” to tell the truth.  Brovold, 477 N.W.2d at 778.  Although that term may connote an understanding of the importance of telling the truth, there is no explicit requirement in the competency test that the child understand the “merit” in telling the truth.  There is a general requirement that a witness must understand the obligation of the oath.  See State ex rel. Dugal v. Tahash, 278 Minn. 175, 177-78, 153 N.W.2d 232, 234 (1967) (stating the witness is competent if it appears that the witness understands the obligation of an oath and is capable of narrating the facts).  And this court has indicated that determining the competency of a four-year-old child required “ascertaining whether she understood the obligations of the oath.”  State v. Sime, 669 N.W.2d 922, 926 (Minn. App. 2003).  But if the district court intended to probe this aspect of K.W.’s “capacity” to tell the truth, it did not do so except in terms of the consequences that had been imposed on K.W. for not telling the truth.  K.W. was enrolled in a non-traditional school that did not emphasize consequences for misbehavior, and her family also imposed little discipline.  It does not necessarily follow, however, that K.W. did not appreciate the merit in telling the truth, or her obligation to do so.  In fact, K.W. testified that the prosecutors and her therapist told her to tell the truth when testifying.  The natural inference to be drawn from this testimony, unless it was shown that K.W. did not take this advice seriously, is that K.W. would appreciate the importance of telling the truth at trial.

            The district court’s focus on whether K.W. has had consequences for not telling the truth explained to her relates more to her credibility as a witness than to her competency.  “A competency determination is not the same as a credibility determination.” 926.  The leading cases on the determination of child competency are State v. Lanam, 459 N.W.2d 656 (Minn. 1990), and State v. Scott, 501 N.W.2d 608 (Minn. 1993).  In Lanam, the supreme court acknowledged that competency concerns, in part, the child’s ability “to understand the importance of telling the truth in court.”  459 N.W.2d at 660.  But the district court’s questions here were framed solely in terms of what consequences K.W. was aware of for not telling the truth, not on her understanding.  And, although Scott approved of a litany of questions that included, “whether they know what happens when one tells a lie,” 501 N.W.2d at 615, the district court did not ask that type of question.  Instead, the court asked narrow questions about the specific practices of various authority figures, which went more to the disciplinary practices of her school and her parents than to K.W.’s own understanding.  The result was that the court did not “err on the side of determining the child to be competent.”  Id. at 660.

            The district court also found that K.W. did not meet the second prong of the Brovold test because “the testimony of the other witnesses created serious doubt about K.W.’s ability to recall facts about the underlying incident(s) at issue in this case.”  This finding, however, was based on expert testimony that related more to the credibility of K.W.’s description of events than to her ability to recall events.

            The state’s expert testified that the assessment of K.W.’s “insight and judgment” had declined from “fair” to “limited” to “poor.”  An expert for the defense then testified that such an assessment of “poor” “insight and judgment” would “impact on that child’s capacity to remember or relate truthfully facts respecting abuse.”  (Emphasis added.)  But this expert opinion is directed more at K.W.’s credibility than at her “ability to recall the facts.”

The defense expert, Dr. McNaught Stageberg, was not asked for an opinion regarding K.W.’s general ability to recall facts.  She testified about her interpretation of a test K.W. took, which showed, according to Dr. McNaught Stageberg, that K.W. “has poor reality testing.”  She testified that K.W. was “a child who doesn’t appear to be able to separate her fantasy life from real life situations at this time.”  But she went on to explain that she attempted to assess whether K.W. could

carry a normal flow of conversation, does she exhibit adequate reality testing when we are doing nothing related to abuse.  I saw no problem in that, but I found difficulty when we got to talking about the alleged abuse with the interference of fantasy.


(Emphasis added).  Thus, the defense expert indicated that K.W.’s general ability to recall facts was not impaired, which is the question the court must ask in assessing competency.  It was only her ability to recall accurately the facts related to the alleged abuse, i.e. the credibility of the allegations, the question that is not at issue in assessing competency, that the expert found to be deficient.

The district court did not ask K.W. about the details of her possible testimony, an inquiry disapproved in both Lanam and Scott.  But it did hear significant expert testimony on K.W.’s ability to truthfully relate incidents of abuse.  It heard testimony about “projection” and “enmeshment,” and parental over-involvement, but these are matters bearing on credibility, not competency.  We conclude that the district court clearly abused its discretion in ruling that K.W. is not competent to testify at trial.

Out-of-court Statements

The state also argues that the district court clearly erred in ruling that most of K.W.’s out-of-court statements are “testimonial,” and therefore inadmissible at trial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).  Whether the admission of out-of-court statements would violate the Confrontation Clause is a question of law that an appellate court reviews de novo.  State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).

Because we have determined that K.W. is competent to testify at trial, we need not address the Crawford issue.  The Confrontation Clause is not violated by the admission of an out-of-court statement if the declarant is available at trial for cross-examination.  California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970).  Crawford reaffirms this basic principle.  See Crawford, 541 U.S. at 59, n.9, 124 S. Ct. at 1369, n.9 (noting that even “testimonial” statements are not barred by the Confrontation Clause when the declarant appears for cross-examination at trial).  Because K.W. is competent to testify at trial, and presumably will testify at trial, we need not decide whether her out-of-court statements are testimonial.

Motion to Dismiss

In his cross-appeal, respondent argues that the district court erred in denying his motion to dismiss the complaint on the basis of government collusion, bad faith, spoliation of evidence, discovery violations, and conflict of interest.  This court reviews rulings on discovery sanctions only for a clear abuse of discretion.  State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998).  When due process issues are involved in matters of pretrial procedure, this court reviews the district court’s decision de novo.  See State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004) (reviewing ruling on the prosecution’s alleged failure to preserve potentially useful evidence), review denied (Minn. Nov. 16, 2004).  The district court denied respondent’s motion to dismiss, but stated it would give an instruction at trial that the jury could draw an inference that the missing material would have been favorable to the defense.  See generally State v. Villalon, 305 Minn. 547, 549, 234 N.W.2d 189, 191 (1975).   

            Respondent points to the loss of key items of evidence, including the file of the initial lead investigator, part of the CornerHouse videotape, and other evidence.  He also argues that government employees schemed with K.W.’s mother to develop the criminal charges, and that the Hennepin County Attorney’s Office had a conflict of interest because they represented the child-protection workers in their civil depositions (apparently taken in connection with the dissolution action).

            The initial police investigator testified that he had lost his file.  There is no showing, however, that the loss of this file was intentional or in bad faith, or that the contents of the file might have been exculpatory.  See generally Heath, 685 N.W.2d at 55 (noting that where there is only a possibility that tests would have shown the lost evidence to be exculpatory, the defendant must show bad faith in order to establish a due process violation).  Respondent has also not shown that Dr. Davis’s raw therapy notes have exculpatory value or that they were destroyed in bad faith.  And disclosure of raw notes is not required.  See Minn. R. Crim. P. 9.01, subd. 1(4) (requiring the prosecution to disclose “reports of physical or mental examinations”).  Dr. Davis testified that she shreds the notes she takes during therapy sessions and transfers their contents to her chart.  Respondent cites no authority requiring retention of the raw notes, particularly by a therapist who was not working for police.  Cf. State v. Wilson, 535 N.W.2d 597, 604-05 (Minn. 1995) (noting lack of authority requiring police to retain original handwritten notes of interviews).  And respondent has not shown that the shredding of the notes, which was apparently Dr. Davis’s practice in other cases as well, was done in bad faith.

            Respondent’s claim that Judy Miller Thomas, the child-protection screener who K.W.’s mother first consulted, testified falsely in her deposition that she had not met K.W.’s mother before the day of the first report, is called into question by the state’s explanation that, while K.W.’s mother may have talked with another person in Miller Thomas’s agency before, it was not necessarily Miller Thomas whom she talked to. 

            As to respondent’s claim that there is a gap in the CornerHouse videotaped statement taken from K.W., the state points to evidence in the record that no such gap exists.  The state also points out that, although the search-warrant application to search respondent’s apartment was lost, there was no evidence discovered in that search that the state intends to offer at trial.  The prosecutor clearly stated that she was not going to offer any evidence discovered in that search.  Therefore, respondent has shown no prejudice from this loss of evidence.

            The state also argues that because the prosecution of this case has been transferred to the Anoka County Attorney’s Office, respondent’s conflict-of-interest claim is moot.  But the transfer of this case, which occurred during the pendency of this appeal, was prompted by other reasons.  In any event, we conclude that respondent’s claim that there was a conflict of interest because the Hennepin County Attorney’s Office represented two of the child-protection workers in their civil depositions is without merit.  Respondent cites a holding that a city attorney’s office had a conflict of interest when it represented both the city and one of its police officers when both were defendants in a section 1983 action.  Minneapolis Police Officers Fed’n v. City of Minneapolis, 488 N.W.2d 817, 819-20 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992).  But the opinion notes the inherent conflict in the legal positions of the city and its employee in that type of action.  Id.  Here, the two child-protection workers were merely deposed in an action in which they were not parties.  They appear to have no potential liability either in this criminal prosecution or in the dissolution.  Respondent makes no showing that their interests conflict with those of the county in the state’s prosecution of this case. 

            Respondent’s argument that there was “collusion” between county employees and K.W.’s mother is based on the actions of child-protection screeners in a private agency and a child-protection worker in suggesting to K.W.’s mother that she could not get an order for protection (OFP) without more specific evidence of abuse.  But it appears that the child-protection workers, even those who were government employees, were merely giving professional advice as to what is “adequate evidence” for the purposes of obtaining an OFP.  Respondent’s claim of collusion assumes that it was a foregone conclusion that the further actions suggested by the child-protection workers, particularly the medical evaluations, would result in support for child-abuse charges.  But the immediate consequence of the child-protection advice was merely that K.W.’s mother delayed seeking an OFP, which was certainly a consequence that favored respondent.

Part of respondent’s claim of collusion is also based on the friendship between K.W.’s mother and Lisa Yates, a Hennepin County child-protection worker.  But Yates turned down the assignment of K.W.’s case, recognizing her conflict of interest.  The fact that the case was re-assigned to a close co-worker of Yates is not by itself evidence of collusion.

Finally, respondent argues that when collusion has been shown, bad faith may be inferred.  But even if respondent had shown collusion, he would have to show that the loss of evidence was attributable to those who colluded.  There is no showing of any connection between those alleged to have colluded in presenting sex-abuse allegations—K.W.’s mother, Yates, and Miller Thomas—and the loss of evidence.

We conclude that respondent did not present a showing of bad-faith loss of evidence, collusion, or other government misconduct that would violate due process or warrant dismissal of the complaint.

            Affirmed in part and reversed in part.