State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1213

State of Minnesota,
Respondent,

vs.

Cody James Wutzke,
Appellant.

Filed June 11, 2018
Affirmed
Rodenberg, Judge

Becker County District Court
File No. 03-CR-15-2741

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and
Rodenberg, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Cody James Wutzke appeal s from his conviction for second-degree
criminal sexual conduct, after the district court allowed the seven-year-old sexual-assault
victim to testify at trial. We affirm.
FACTS
In December 2014, appellant babysat R.S., who was then five years old. Appellant
asked R.S. to go into her mother’s bedroom and told her to take off her pants and
underwear. R.S. complied. Appellant touched her vagina.
Almost one year later, R.S. reported th e incident to a fam ily member. R.S.
demonstrated what had happened by lying on the floor, removing her panties, and
describing how appellant touc hed her vagina. After the family member reported the
incident to the police, R.S. met with a social worker. R.S. told the social worker the same
story she told her family member. R.S. said that she lay down on her mother’s bed and
appellant continued to touch her until “he wanted to stop.” On an anatomically-correct
diagram of a young girl, R.S. circled the gr oin area to indicate wh ere appellant touched
her. The state charged appellant with second-degree criminal sexual conduct, in violation
of Minn. Stat. § 609.343, subd. 1(a) (2014).
The case was tried to a jury. The state called six witnesses, including R.S., who was
then seven years old. After R. S. took the stand, and outsid e the hearing of the jury, the
district court asked her to spell her name, a nd asked her about her ag e, where she attends
school, whether she enjoys sc hool, and whether she has any pets. R.S. answered each

3
question. The district court asked R.S. to define a lie and whether it is good or bad to tell
a lie. R.S. explained that a lie is “when you don’t tell the truth.” She said that it is important
to tell the truth “[s]o you don’t get in big trouble.” R.S. understood that it is “very important
to tell the truth.” At the request of defense co unsel, the district court also asked R.S. to
“promise that everything that [she would] tell the lawyers when they ask . . . questions will
be true.” R.S. answered, “Yes.” The district court found that R.S. “was able to recall
information and did express a fundamental unde rstanding of the necessity of telling the
truth and was able to differen tiate between a true statement and a false statement.” The
district court concluded that R. S. was qualified as a competent witness. R.S. testified at
trial without further questioning or objection.
During summation, the state argued that th e jury should believe R.S.’s testimony
and find appellant gu ilty of second-degree criminal sexual conduct. Defense counsel
stated, “This case is not about whether or not a now seven-year-old girl is maintaining a
lie. It is about her memory, it’s about her re call, it’s about influences that may have set
into her recollection.” Defense counsel sugges ted that the jury should not believe R.S.’s
testimony because it was elicited by repeat questions that hinted at the intended answers.
The jury found appellant guilty. The district court sentenced appellant to 36 months,
stayed, with supervised probation for up to 25 years, and imposed a $1,000 fine, staying
$500 pending completion of treatment or after-care.1
This appeal follows.

1 The district court granted appellant a downward dispositional departure from the
sentencing guidelines that is not challenged on appeal.

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D E C I S I O N
Appellant argues that the district court failed to adequately determine R.S.’s
competency to testify because “she lacked a full understanding of the concept of the truth
and the ability to recall facts [and] she lacked any understanding of the consequences of
providing false testimony.”
“A child under ten years of age is a comp etent witness unless th e court finds that
the child lacks the capac ity to remember or to relate tr uthfully facts respecting which the
child is examined.” Minn. St at. § 595.02, subd. 1(n) (2014 ). In determining whether a
child is competent to testify, a district court must determine “whether the child remembers
or can relate events truthfully.” State v. Scott, 501 N.W.2d 608, 613 (Minn. 1993) (quoting
State v. Lanam , 459 N.W.2d 656, 659-60 (Minn. 1990)). The di strict court must ask
questions of the child to ascer tain “whether the [c hild] understands the obligation of the
oath and is capable of narrating the events about which the [ch ild] will testify.” State v.
Sime, 669 N.W.2d 922, 926 (Minn. App. 2003). Such an inquiry might include questions
about her name, where she goes to school, her age, who is the judge, whether she knows
what is a lie, and whether she knows what happens when one tells a lie. Scott, 501 N.W.2d
at 615 (citing 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 comp etency, it is best to err on the side of
determining the child to be competent.” Lanam, 459 N.W.2d at 660. We apply an abuse-
of-discretion standard of review to a dist rict court’s competency determination. State v.
Munt, 831 N.W.2d 569, 585 (Minn. 2013). A district court abuses its discretion if it does

5
not conduct the two-step analysis of whether the child has “(1) the capacity to tell the truth
and (2) the ability to recall facts.” Sime, 669 N.W.2d at 926.
Minnesota appellate courts have considered “the inquiries tria l courts may make
when determining whether children are competent to testify in trials.” Scott, 501 N.W.2d
at 610. When a child expresses her understa nding of the oath and of the need to testify
truthfully, the child “show[s] an apprecia tion for an understandi ng of the difference
between a truth and a lie.” Id. at 613. In Scott, the court determined that the district court
adequately questioned the child before finding her competent to testify. Id. at 613-14. A
district court may pose a series of examples demonstrating the difference between the truth
and a lie, such as a paintbrush is not a pen, the judge is a man and not a woman, and the
child’s shirt is gr een and not red. See State v. Brovold , 477 N.W.2d 775, 778-79 (Minn.
App. 1991), review denied (Minn. Jan. 17, 1992). A district court should also ask the child
about the consequences of telli ng a lie. A child is competent to testify provided that she
knows that it is good to tell the truth, it is ba d to tell a lie, and ther e are consequences to
telling a lie. See id. at 779.
Here, the trial court questioned R.S. outside the presence of the jury to determine
her competency to testify. R.S. said that she understood lying to be “when you don’t tell
the truth” and that a person should not lie “[s]o you don’t get in big trouble.” The district
court also offered a hypothetical to allow R.S. an opportunity to show an appreciation for
understanding a lie by asking her whether it was snowing outside. R.S. agreed that it was

6
not snowing and that saying so would be a lie.2 R.S. demonstrated an understanding of the
difference between the truth and a lie, and the importance of telling the truth to the attorneys
who would ask her questions in court. After questioning R.S., the district court found that
R.S. was competent to testify. By asking R.S. to define the difference between the truth
and a lie, demonstrate her understanding of a lie through the discussion of a hypothetical,
and explain that there are consequences to te lling a lie, the district court created a record
sufficient to demonstrate that it did not abuse its discre tion by finding that R.S. was
competent to testify.3 Although the district court coul d have developed a more thorough
record by asking more questions or discussing more examples to elicit R.S.’s “appreciation
for an understanding of the difference between the truth and a lie,” see Scott, 501 N.W.2d
at 613, we see no abuse of the district court’s discretion.
Appellant also argues that the district cour t erred by failing to ask R.S. to take an
oath that she would give testimony that “shall be the whole truth, and nothing but the truth.
So help [her] God,” Minn. Stat. § 358.07(7) (2 016), and that even if the district court

2 This particular line of questioning by the district court was not as artful as it might have
been, because the form of the district court’s questions concerning whether it was snowing
suggested the negative answer. But the district court appears from the record to genuinely
connect with R.S. at an age-appropriate level, and assured itself that R.S. truly understood
the difference between telling the truth and not telling the truth.

3 Appellant also challenges R.S .’s competency to testify, ar guing that the inconsistencies
in her testimony indicate a diminished cogni tive ability to remember basic details of the
incident. A “competency hearing is not a credibility hearing. . . . Whether a child is easily
led goes more to credibility than to competency. . . . It is the jury’s province to sort out the
inconsistencies [of testimony] and determine credibility, the court’s province to determine
competency.” Lanam, 459 N.W.2d at 660. We do not consider this argument on appeal.

7
administered a sufficient oath, R.S. did not fully understand it so her testimony is
inadmissible.
A witness who testifies at trial is required to take an oath or affirm her intent to
testify truthfully. Minn. R. Evid. 603. The purpose of taking an oath is to “awaken the
witness’ conscience and impress the witness’ mind with the duty to” testify truthfully. Id.
When the witness is a child, it is sufficient for a district court to impress the importance of
telling the truth upon the child, rather than administer an oath using the specific statutory
language of Minn. Stat. § 358.07(7), because “t he absence of an oath [is] not prejudicial
given the child’s recognition of the difference between truth and falsity,” State v. Ross, 451
N.W.2d 231, 236 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).
Because appellant did not challenge the district court’s failure to administer an oath
to R.S. below, we apply a plai n-error standard of review. See State v. Reed, 737 N.W.2d
572, 583 (Minn. 2007). A plain-error analysis considers four factors. Id.; see Minn. R.
Crim. P. 31.02. A plain-error appeal requires proof of “(1) an error, (2) that was plain, and
(3) that affected appellant’s substantial rights.” Id. “An error is plain if it was clear or
obvious.” State v. Strommen , 648 N.W.2d 681, 688 (Minn. 2002) (quotations omitted).
Generally, such an error “contravenes case law, a rule, or a standard of conduct.” State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If these three factors are satisfied, the
appellate court then considers a fourth factor: “whether the error sh ould be addressed to
ensure fairness and the integrity of the judicial proceedings.” Id. (citing State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998)).

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The circumstances of State v. Mosby, 450 N.W.2d 629 (Minn. App. 1990), review
denied (Minn. March 16, 1990), are instructive here. In Mosby, the district court asked the
child to explain the difference between the truth and a lie. Id. at 633. The child responded,
“The difference . . . is when you lie you’re not telling the truth, you’re not saying what
really happened, and the truth is when you’re saying what really happened.” Id. The child
said that a person would “get in big trouble for” telling a lie. Id. The child also explained
that she knew she shou ld tell the truth. Id. On appeal, Mosby challenged “the verbal
formula by which [the child] was sworn,” arguing that the district court did not administer
an oath to the child so the testimony could not be admitted. Id. We relied on a committee
comment to the rules of evidence, that, “Rul e 603 is designed to afford the flexibility
required in dealing with . . . ch ildren. Affirmation is simply a solemn undertaking to tell
the truth; no special verbal formula is required.” Id. (emphasis omitted). We concluded in
Mosby that the child clearly understood her obligation to tell the truth and the district court
did not err. Id.
Here, like in Mosby, the district court asked wh ether R.S. knew the difference
between the truth and a lie, and why it is important to tell the truth. See id. R.S. testified
that telling a lie is “when you don’t tell the truth.” She also said that it is important to tell
the truth “[s]o you don’t get in big trouble.” Finally, the district court asked R.S., “[D]o
you promise that everything that you tell the lawyers when they ask you your questions
will be true?” R.S. answered , “Yes.” R.S. demonstrated an understanding of “the
difference between truth and falsity.” Ross, 451 N.W.2d at 236. She expressly promised

9
to give truthful answers to questions. This was sufficient. The district court did not err by
not administering the oath in the precise language provided by Minn. Stat. § 358.07(7).
Affirmed.