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State v. Sime

October 21, 2003


Swift County District Court File No. 76-K7-02-391

Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.


1. When a continuance of an omnibus hearing has been granted to permit the presentation of testimonial evidence relating to the issue of probable cause, it is error to dismiss the complaint for lack of probable cause without resuming the omnibus hearing when neither notice nor a reason for the closure of the hearing is provided.

2. A competency determination must be based on the particular witness's ability to understand the obligation of the oath and to relate events about which the witness will be questioned.

The opinion of the court was delivered by: Wright, Judge

Reversed and remanded


Appellant State of Minnesota challenges the district court's order dismissing a complaint alleging two counts of criminal sexual conduct in the second degree for lack of probable cause. Because we conclude that the district court (1) abused its discretion when, after granting a continuance of the probable-cause hearing to permit the state to present testimony from out-of-state witnesses on the issue of probable cause, it dismissed the case without holding the hearing and (2) erred when it determined that the child complainant was not competent to testify based on a general assessment of children her age, rather than an individualized assessment of the complainant's capacity to tell the truth and ability to recall the events about which she will be questioned, we reverse and remand.


In June 2002, Karen Phelps and her then four-year-old daughter (H.P.) were returning to Michigan after attending a graduation party in Benson, Minnesota for the son of respondent David Sime. During the trip, H.P. asked her mother if she wanted to touch H.P.'s genitals.*fn1 Phelps, who was startled by this question, directed the conversation away from this topic. During her bath the following day, H.P. stated that her nancy was dirty and needed to be washed. H.P. then disclosed that Sime had touched her genital area under her underwear, and he had made her touch his penis.

When Phelps contacted the Benson Police Department, she was encouraged to have H.P. evaluated by a psychologist. On June 7, 2002, H.P. was interviewed by a social worker in Michigan. During the interview, H.P. disclosed that Sime had put his hands in her underpants and touched her vaginal area on more than one occasion. H.P. described this contact as painful and stated that it made her want to cry. H.P. also indicated that Sime had put his hand over her mouth and ordered her not to tell anyone about the sexual contact. H.P. also described Sime rubbing his penis against her buttocks while she was wearing underwear and forcing her to touch his penis, which she described in both its erect and flaccid state.

H.P. was confused about some of the circumstances surrounding the sexual conduct. For example, she was unclear about whether, in addition to the assaults in the house, Sime assaulted her in a "clubhouse" on Sime's property. H.P. also was unclear about whether one of her cousins was present during the sexual abuse.

The June 7 interview was not videotaped. During a subsequent attempt to interview H.P. on video, she refused to cooperate. Similarly, when a physician conducted a physical examination of H.P., H.P. initially declined to acknowledge any sexual abuse. The physical examination revealed no signs of sexual abuse.

Sime was charged with two counts of second-degree criminal sexual conduct, in violation of Minn. Stat § 609.343, subds. 1(a), 2, and subd. 1(g) (2000). The state sought to have H.P.'s out-of-court statements admitted into evidence pursuant to Minn. Stat. § 595.02, subd. 3 (2002), arguing that H.P. may not be competent to testify and that her statements to her mother and the social worker are admissible. The state also moved the district court to allow H.P. to testify outside of Sime's presence. Sime opposed the state's motions, sought permission to have his own psychological expert examine H.P., and moved to have the case dismissed for lack of probable cause. The district court held an omnibus hearing in February 2002, during which it granted a continuance to permit the state to produce witnesses to testify regarding the probable-cause issue. Shortly thereafter, Sime's counsel sent the district court a letter reiterating its argument that probable cause did not exist. The state objected to this unsolicited contact with the district court while the hearing was pending.

Without resuming the hearing, the district court dismissed the complaint for lack of probable cause. The district court found that H.P. was incompetent to testify because of her age at the time of the alleged incident, the amount of time that would elapse between the incident and the trial, and the district court's doubt as to the ability of any child of H.P.'s age to appreciate the obligations to testify truthfully and to accurately relate the details of the alleged abuse. The district court also ruled that H.P.'s out-of-court statements were inadmissible because they lacked reliability. Without H.P.'s ...

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