State of Minnesota v. Ira Dell Sholar
A16-194
| Minn. Ct. App. | Jan 23, 2017Background
- In July 2014, appellant Ira Sholar (age 48) was accused of sexually touching a 7-year-old child, D.P.D.; police arrested Sholar after mothers reported the incident.
- Four days later, D.P.D. underwent a forensic interview at CornerHouse; the interview was played at trial and a transcript admitted.
- Sholar was charged with second-degree criminal sexual conduct (sexual contact with a child under 13 and >36 months younger).
- At the bench trial, D.P.D. was the first witness but was not sworn before testifying; after a subsequent witness, the judge recalled D.P.D., questioned her about truth/lie understanding, and received affirmative responses.
- Defense counsel did not object at trial; the district court found Sholar guilty and imposed a stayed 36-month sentence with workhouse time; Sholar appealed claiming plain error from the unsworn testimony and that the post-testimony inquiry was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failing to administer oath before child witness testified was plain error affecting substantial rights | State: error occurred but waived; if considered, not prejudicial | Sholar: unsworn testimony prejudiced outcome; post-testimony questioning insufficient remedy | Court: failure to swear was plain error but did not affect substantial rights; conviction affirmed |
| Whether post-testimony judicial questioning cured the error | State: judge’s recall and questions showed child understood duty to tell truth | Sholar: belated inquiry cannot substitute for oath given before testimony | Court: post-testimony inquiry was adequate under precedent and rule flexibility; no prejudice |
| Whether conviction depended solely on unsworn testimony | State: multiple exhibits, CornerHouse DVD/transcript, and five corroborating witnesses supported verdict | Sholar: absent sworn child testimony, no other persuasive evidence | Court: record contained corroborating evidence; credibility determinations for factfinder; error not outcome-determinative |
| Whether appellate review is permitted despite no trial objection | State: argues waiver; court may review plain error | Sholar: seeks reversal under plain-error standard | Court: applied plain-error review and concluded no substantial-rights prejudice; no relief granted |
Key Cases Cited
- State v. Mosby, 450 N.W.2d 629 (Minn. App. 1990) (flexibility in administering oath to child witnesses; no special verbal formula required)
- State v. Griller, 583 N.W.2d 736 (Minn. 1998) (plain-error standard requires error that is plain and affects substantial rights)
- State v. Ramey, 721 N.W.2d 294 (Minn. 2006) (definition of plain error as clear or obvious contravention)
- State v. Martinez, 725 N.W.2d 733 (Minn. 2007) (appellate discretion to consider unobjected-to plain errors)
- State v. Vance, 734 N.W.2d 650 (Minn. 2007) (reasonably likelihood standard for prejudice affecting outcome)
- State v. Fleck, 810 N.W.2d 303 (Minn. 2012) (overruled Vance on other grounds; cited for context)
- State v. Watkins, 650 N.W.2d 738 (Minn. App. 2002) (deference to fact-finder on credibility determinations)