State of Minnesota v. Edgar Arturo Cano-Fernandez

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1754

State of Minnesota,
Respondent,

vs.

Edgar Arturo Cano-Fernandez,
Appellant.

Filed August 10, 2015
Affirmed
Bjorkman, Judge

Watonwan County District Court
File No. 83-CR-14-36

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Nicholas A. Anderson, Cottonwood County Attorney, Windom, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Bjorkman, Judge; and Kirk,

Judge.

UNPUBLISHED OPINION

BJORKMAN, Judge

Appellant challenges his convictions of first- and second-degree criminal sexual

conduct, arguing that the child complainant was not competent to testify. We affirm.
 FACTS

In October 2013, I.C. moved from Texas to Minnesota with her four-year-old

daughter, A.V.; her niece, E.C.; and appellant Edgar Arturo Cano-Fernandez. All four

moved into Cano-Fernandez’s cousin’s home. Initially, E.C. cared for A.V. while I.C.

worked the night shift. When E.C. moved out of the house in November, Cano-

Fernandez assumed partial responsibility for A.V.’s care. In December, I.C. made plans

to return to Texas in mid January. She purchased airplane tickets for herself and A.V.

and told Cano-Fernandez that they would be leaving.

Several days before their scheduled departure, A.V. told I.C. that she did not want

to be left with Cano-Fernandez because he was “a bad person,” and that when I.C. was

away he did “bad things to her.” A.V. explained that Cano-Fernandez pulled her pants

down and “put his private parts . . . on her,” and showed her mother how Cano-Fernandez

positioned her. A.V. also said that he told her not to tell I.C. “because then God was

going to get mad at her.” A.V. complained of vaginal soreness, and I.C. recalled seeing

vaginal discharge when bathing A.V. around that time. I.C. took A.V. to the emergency

room that night to have her examined and report the abuse.

When I.C. and A.V. returned to Texas several days later, A.V. was examined by a

sexual-assault nurse. A.V. told the nurse that “Arturo” had twice touched her with his

“wee-wees” and pointed to her vaginal area and buttocks. She said that she had felt pain,

but the nurse did not observe any signs of trauma.

Cano-Fernandez was charged with multiple counts of first-degree and second-

degree criminal sexual conduct. The district court found A.V., then five years old,

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competent to testify. After a bench trial during which I.C. and the sexual-assault nurse

also testified, the district court acquitted Cano-Fernandez of two counts of first-degree

criminal sexual conduct (penetration) but found him guilty of two counts of first-degree

criminal sexual conduct (contact), and two counts of second-degree criminal sexual

conduct (contact).1 Cano-Fernandez appeals.

DECISION

“Determination of witness competency rests in the discretion of the trial judge

whose finding will not be reversed unless it is a clear abuse of discretion.” State v.

Carver, 380 N.W.2d 821, 824 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).

A child witness is presumed 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(n) (2014); State v. Scott, 501 N.W.2d 608, 613

(Minn. 1993) (noting prior presumption that children under age ten were not competent to

testify). In determining competency, a district court considers whether the child has

(1) the capacity to tell the truth and (2) the ability to recall facts. State v. Sime, 669

N.W.2d 922, 926 (Minn. App. 2003). This is a general determination, unrelated to the

subject matter of the case. Scott, 501 N.W.2d at 615. Accordingly, courts typically

inquire about matters such as the child’s name, where she goes to school, how old she is,

whether she knows who the judge is, whether she knows the difference between the truth

and a lie, and whether she knows what happens when one tells a lie. Id. (citing Kentucky

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During the investigation of A.V.’s report, Cano-Fernandez twice told police his name
was Geofrey Hoglund. He was convicted of giving a peace officer a false name and does
not challenge that conviction on appeal.

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v. Stincer, 482 U.S. 730, 741-42, 107 S. Ct. 2658, 2665-66 (1987)). But a child’s

inability to answer some of these questions does not necessarily indicate incompetency.

See State v. Brovold, 477 N.W.2d 775, 778-79 (Minn. App. 1991) (affirming competency

determination when three-year-old sexual-misconduct victim’s responses indicated she

knew the difference between the truth and lie, but not the consequences of not telling the

truth, and could adequately relate facts regarding events, though she struggled with time

and some names), review denied (Minn. Jan. 17, 1992). “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).

Cano-Fernandez argues that the district court abused its discretion in determining

A.V. was competent to testify because her inaccurate and tangential answers to the

district court’s questions indicate that she lacked a full understanding of the concept of

the truth and the ability to recall facts. We disagree. First, Cano-Fernandez’s assertion

that A.V.’s responses were inaccurate or tangential relies heavily on the portion of the

district court’s examination that was conducted in English, A.V.’s second language. And

even in response to those questions, A.V. accurately stated her name, appropriately

answered the question about her activities, and accurately stated her age.

Second, and more importantly, once the Spanish language interpreter became

involved, A.G.’s responses demonstrated that she has the requisite capacities. A.V.

accurately indicated that it would be a lie, not the truth, to say that the judge’s robe was

pink and it would be a lie to say she lived in California and the truth to say she lived in

Texas. She repeatedly stated that it is good to tell the truth and not good to lie. She

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expressed some initial confusion about the concept of a promise but accepted the judge’s

explanation that a promise “means that you tell somebody you will do something” and

agreed that she would promise to tell the truth. After agreeing that she would “never tell

a lie,” A.V. made statements about bathing herself, watching television, and playing

outside, that did not respond to any pending question.

The district court noted A.V.’s young age and the somewhat confused responses

she gave to certain questions, but ultimately found that she understood the difference

between the truth and a lie, promised to tell the truth, and was able to relate past events.

The district court also expressly attributed her occasional confusion to context, rather

than incompetence. Because the record amply supports those findings, we conclude the

district court did not abuse its discretion by determining that A.V. was competent and

permitting her to testify.

Affirmed.

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