This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-327

 

 

State of Minnesota,

Respondent,

 

vs.

 

Scott Carl Richard Thielen,

Appellant.

 

 

Filed April 25, 2006

Affirmed
Crippen, Judge*

 

Olmsted County District Court

File No. K3-03-4455

 

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

 

David F. McLeod, Assistant Olmsted County Attorney, 151 Fourth Street SE, Rochester, MN  55904 (for appellant)

 

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

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            In this appeal from a conviction of first-degree criminal sexual conduct, appellant challenges the sufficiency of the evidence and argues that the district court abused its discretion by determining that the six-year-old victim was competent to testify.  We affirm.

FACTS

            Appellant Scott Thielen was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), and second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2002), after sexually assaulting then-four-year-old A.F.  The state later added a third charge of second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(h).

            The jury found appellant guilty of all three counts.  On the count of first-degree criminal sexual conduct, the district court sentenced appellant to 144 months.  But it stayed execution of the sentence and placed appellant on probation for 30 years on the conditions that he serve one year in jail, successfully complete various treatment programs, and abstain from drugs and alcohol. 

D E C I S I O N

1.  Sufficiency of Evidence

            Appellant argues that the record is insufficient to support his conviction of first-degree criminal sexual conduct.  Our review of this claim is limited to a thorough analysis of the record to determine “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.”  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We are to review the record in the light most favorable to the conviction.  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  The fact-finder has the exclusive function of judging witness credibility and weighing the evidence, and we assume that the fact-finder believed the evidence supporting the state’s case and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).

            Appellant argues that the record fails to prove beyond a reasonable doubt that he sexually penetrated A.F.  But Minnesota law provides that it is a first-degree criminal sexual conduct crime to engage in either sexual penetration “or in sexual contact” with a person under 13 years of age and at least 36 months younger than the actor.  Minn. Stat. § 609.342, subd. 1(a) (2002).  Sexual contact with a person under the age of 13 includes “intentional touching of the complainant’s bare genitals or anal opening by the actor’s bare genitals or anal opening with sexual or aggressive intent.”  Minn. Stat. § 609.341, subd. 11(c) (2002).  Sexual penetration includes fellatio and anal intercourse.  Minn. Stat. § 609.341, subd. 12(1) (2002).

            A.F.’s testimony about the abuse was vague and inconsistent, but Dr. Friedrich, the psychologist who interviewed A.F., testified that A.F. indicated with dolls and on pictures that appellant touched A.F.’s penis with his hand and mouth and that appellant touched A.F.’s buttocks and inserted his penis into his anus. 

The testimony of A.F.’s mother and grandmother corroborates A.F.’s testimony and statements made to Dr. Friedrich.  Both described A.F.’s sexual “games,” and A.F.’s mother testified that A.F. explained that “Uncle Scott” taught him how to play.  Viewing the record in the light most favorable to the conviction, we conclude that the facts in the record and all legitimate inferences drawn there from support appellant’s conviction of first-degree criminal sexual conduct.

2.  Competency

            Appellant also challenges the district court’s determination that A.F. was competent to testify.  The determination of a witness’s competency rests within the sound discretion of the district court.  State v. Sime, 669 N.W.2d 922, 925 (Minn. App. 2003).  We will not reverse absent a clear abuse of that discretion.  State v. Cermak, 350 N.W.2d 328, 332 (Minn. 1984).

            A child less than ten years old is presumed competent to testify unless the district court finds that the child lacks the capacity to tell the truth or the ability to recall facts.  Minn. Stat. § 595.02, subd. 1(m) (2004); State v. Scott, 501 N.W.2d 608, 613 (Minn. 1993).  To determine competency, children are typically “asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie.”  Scott, 501 N.W.2d at 615 (quoting Kentucky v. Stincer, 482 U.S. 730, 741-42, 107 S. Ct. 2658, 2665-66 (1987)).  “Where the court is in doubt as to 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).

            The district court asked A.F. several questions about his name, how old he is, where he will go to school, and what a judge is.  A.F. had difficulty answering a few of these questions, and he turned to his mother for direction several times.  She encouraged A.F. to answer the judge and occasionally clarified why A.F. did not know the answer.  A.F. was able to answer that Halloween was his favorite holiday because he got candy and that he has worn a ninja costume twice.  The district court also asked A.F. if he knew what a lie is.  A.F. gave an answer similar to the example the prosecutor used with him a few days before trial.  But A.F. knew that lying was wrong and that there were consequences for lying. 

            Appellant argues that the district court asked cursory and leading questions.  But the record shows that the court asked questions typically used to determine a child’s competency.  A.F. was able to answer most of the questions appropriately, demonstrating his capacity to tell the truth and recall facts.  The court did not abuse its discretion by determining that A.F. was competent to testify.

3.  Other Issues

 

            Appellant also argues that the district court deprived him of his right to testify and to present a defense by excluding testimony that appellant was attracted to women and had taken a polygraph test, and by preventing appellant’s attorney from arguing in closing that appellant believed child molestation was wrong.  This court reviews evidentiary challenges for an abuse of discretion, even when an appellant alleges that his constitutional rights were violated.  State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999).

            Both the state and federal constitutions afford criminal defendants a due-process right to “a meaningful opportunity to present a complete defense.”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)).  But the right to present a defense is not absolute.  State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005).  “[I]n exercising this right, both the accused and the state must comply with procedural and evidentiary rules designed to ensure both fairness and reliability in the ascertainment of guilt and innocence.”  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003) (quotation omitted).

            Evidence of appellant’s attraction to women is not probative or relevant to the allegations of sexual contact with A.F.  It does not tend to make any fact of consequence to the determination of appellant’s guilt more probable or less probable.  See Minn. R. Evid. 401.  The district court did not abuse its discretion by denying admission of this evidence.

            Neither the results of a polygraph test nor evidence that a defendant took such a test is admissible in criminal trials.  State v. Opsahl, 513 N.W.2d 249, 253 (Minn. 1994).  The court did not abuse its discretion when it refused to admit this evidence.

            Appellant argues that the district court also denied his right to present a defense by not allowing his attorney in closing argument to discuss appellant’s belief that child molestation is wrong.  Both the prosecutor and defense counsel are entitled to argue to the jury “all reasonable inferences from the evidence in the record.”  State v. Davidson, 351 N.W.2d 8, 12 (Minn. 1984).  But intentionally arguing misleading inferences is prohibited.  Id.  The district court has discretion to limit the scope of closing argument to safeguard the jury from misleading inferences.  Id. at 13.

            The district court limited appellant’s closing argument because appellant’s opinion about child molestation is not “particularly germane.”  Appellant’s opinion about child molestation does not tend to make his guilt more or less probable, and it is misleading to argue that because appellant thought child molestation was wrong, he did not commit the crimes alleged.  Because the district court’s limitation of appellant’s argument safeguards the jury from misleading inferences, the court did not abuse its discretion.

            Affirmed.