State v. Clark

No. 04-282

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 330

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KELLY DALE CLARK,

Defendant and Appellant.

APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 2002-99,
Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Daniel R. Wilson, Measure & Wilson, Kalispell, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana

Robert J. Long, County Attorney; Mitchell A. Young, Deputy
County Attorney, Polson, Montana

Submitted on Briefs: October 19, 2004

Decided: December 20, 2005

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Kelly Dale Clark (Clark) appeals the judgment of conviction for sexual assault and the

order denying his motion for a new trial entered in the Twentieth Judicial District Court,

Lake County. We affirm in part, reverse in part, and remand for further proceedings.

¶2 We address the following issues on appeal:

¶3 Did the District Court commit plain error by not instructing the jury that it must be

unanimous as to the means by which Clark subjected his stepdaughter to sexual contact?

¶4 Did the District Court abuse its discretion by denying Clark’s motion for a new trial

after the complaining witness recanted her testimony?

BACKGROUND

¶5 On or around July 18, 2002, Clark’s fourteen-year-old stepdaughter, T.C., came home

from babysitting and changed into a bikini in preparation for mowing the lawn. Her mother

was gone for the evening, working. Clark came home from golfing and laid on the couch in

the living room. According to T.C.’s later testimony, as she came into the living room Clark

asked her if one of her breasts was bigger than the other, and he directed her to kneel beside

him, which she did. T.C. stated that Clark then placed his hands on her breasts, said that he

could not tell if one was larger than the other, then pushed the bikini top up, exposing both

breasts. T.C. covered herself with her hands, but Clark said, “It’s not like I haven’t seen

boobs before.” T.C. testified that Clark then showed her “boob exercises” by pushing T.C.’s

breasts up, down, and sideways. Afterward, Clark told T.C. that she did not need to tell her

mom about what happened.

2
¶6 One week later, T.C. told her mother, Christina, what Clark had done, and Christina

called the police. Having obtained a restraining order against Clark, Christina and T.C.

returned home. That night, Clark came to the house to confront Christina about the incident.

Clark and Christina argued, culminating in Christina retrieving a gun from her bedroom,

Clark retreating outside, and T.C. calling 911. Later that night, Clark was arrested. Within a

few weeks, Clark and Christina were back together.

¶7 In February 2003, Clark was tried for sexual assault and violating an order of

protection. 1 At trial, T.C.’s credibility was an issue, and there was evidence that she had lied

on several occasions in the past and that she had changed her story about what had happened

with Clark in the living room. Christina testified at trial that, on occasion, she had

encouraged T.C. to lie in order to avoid what she perceived to be overly harsh punishments

from Clark.

¶8 Christina also testified that in the weeks and months after the incident she began to

disbelieve T.C.’s version of events. In describing at trial the confrontation she had with her

daughter on the matter, Christina said the following:

I wanted to talk to her about it, and I told her that I didn’t feel that she
was being truthful. I didn’t feel that she was telling the whole truth. I also felt
that she was telling a lot of things that weren’t true.

And she told me that she was. And I told her, no, you aren’t; you’re not
telling the truth. I don’t believe you. And I told her that when she wants to
come and tell me the truth, then I’ll be there.

1
Only the conviction for sexual assault is challenged on appeal.

3
 And I think it was B I don’t know how much time passed. She came
back in the living room and she told me she was sorry that she had done this,
and that Kelly didn’t do all of those things that she said he had done.

After this conversation, Christina instructed T.C. to call Detective Doyle, to whom they had

originally reported the incident in late July. On the phone with the detective, T.C. recanted

her story, saying that it did not happen as she had described and that the incident was not

“perverted.”

¶9 On October 23, 2002, Detective Doyle and Deputy County Attorney Young

interviewed T.C. in a room at her school while Christina waited in the hallway outside where

should could not hear the conversation. In that interview, T.C. told a substantially similar

story as she had in her first report to the police. At trial, the State had T.C. read from the

transcript of that interview:

Q. [by the State] . . . I’m going to read the question and I want you to read me
the answer back; okay?

A. [by T.C.] Yeah.

Q. Okay. “What made you call me up that day and tell me that it was not
true.”

A. “Well, my mom had talked to me that day and, uh, we were talking about
Kelly and what would happen to him if she B and she said she was going B she
was getting sick and tired of listening to me telling all the B she thought I was
lying and so she wanted me to tell the truth, so I lied because I didn’t want her
to get mad. And she said that I couldn’t be in her life if I didn’t tell the truth.
So I had no choice.”

Q. Your mom told you that she was getting sick and tired of listening to your
lies and that you couldn’t be in her life if you kept it up?

A. Yes.

4
¶10 In her trial testimony, T.C. admitted that she had lied about some of the details she had

initially provided to the police about the incident with Clark. In addition, she stated that,

after the prosecutor had explained what sexual assault was, she did not believe she had been

sexually assaulted. She maintained that what Clark had done to her was not “perverted” or

“sexual” but was done with the intention of helping her. T.C. also stated that she wanted to

resume living with Clark.

¶11 Clark’s trial testimony differed from T.C.’s in several respects. He disputed T.C.’s

contention that he initiated the conversation about her breasts. Clark asserted that T.C.

mentioned that her breasts were starting to grow and then came over and knelt beside him by

her own volition. Clark stated that T.C. asked him whether her breasts were even, and then,

to his great surprise, she lifted her bikini top, exposing her breasts. He maintained that he

reached out and touched her with two fingers on the inside of her breast and said that that one

was larger than the other. After just a few seconds, T.C. put her top back on and started

doing the breast exercises that Clark had previously described to her.

¶12 Both T.C. and Clark testified that when she had any questions about sexual matters,

she would come to her stepfather rather than her mother, and that it was not unusual for T.C.

and Clark to have these conversations.

¶13 Despite the attacks on T.C.’s credibility, T.C.’s testimony about her interpretation of

the incident with Clark, and Clark’s testimony as to his version of events, the jury returned a

verdict of guilty.

5
¶14 Soon after the trial, T.C. went to live with Alana Myers and her husband, a pastor of a

church in Bigfork, though T.C. would also periodically spend a few days at a time with

Christina. One evening not long after the trial, Myers and T.C. had a direct and open

conversation in which Myers, cognizant of T.C.’s mendacious tendencies, encouraged T.C. to

be completely open and honest about what had happened with Clark, though she was careful

not to suggest an answer. T.C. asked what she could do, and Myers said that T.C. could

write a letter to Clark’s attorney. Two to four days later, without reminder or prompting

from Myers, T.C. showed her a rough draft of a letter in which T.C. partially recanted her

trial testimony. After Myers helped T.C. clear up some grammatical and punctuation errors,

the letter was given to Clark’s attorney.

¶15 In March 2003, Clark moved for a new trial asserting that T.C. had recanted her trial

testimony and that the recantation was new evidence. At a hearing on the matter, T.C.

explained that she had lied on the stand because she was confused and scared. T.C. stated

that she initiated the contact between her and Clark, that she knelt down without being asked

by Clark, and that she, not Clark, lifted her bathing suit top. Though she testified that Clark

did not grope her breasts in any way, T.C. maintained that Clark did touch her on the side of

her breast and that she was surprised that he did so. Clark argued that this was newly

discovered evidence which entitled him to a new trial. The District Court denied the motion.

¶16 The District Court sentenced Clark to twenty years imprisonment, sixteen suspended,

for the sexual assault conviction and six months imprisonment, all suspended, for violating

an order of protection. Clark appeals.

6
 STANDARD OF REVIEW

¶17 This Court explained the standards for applying plain error review in State v. Finley

(1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215, overruled on other grounds by State v.

Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817:

[T]his Court may discretionarily review claimed errors that implicate a
criminal defendant=s fundamental constitutional rights, even if no
contemporaneous objection is made . . . where failing to review the claimed
error at issue may result in a manifest miscarriage of justice, may leave
unsettled the question of the fundamental fairness of the trial or proceedings,
or may compromise the integrity of the judicial process . . . . [W]e will
henceforth use our inherent power of common law plain error review
sparingly, on a case-by-case basis . . . .

¶18 Generally, “[t]he standard of review of a district court=s ruling on a motion for new

trial is whether the district court abused its discretion.” State v. McCarthy, 2004 MT 312, ¶

43, 324 Mont. 1, ¶ 43, 101 P.3d 288, ¶ 43. The applicable standards of review will be

discussed further below.

DISCUSSION

¶19 Did the District Court commit plain error by not instructing the jury that it must be

unanimous as to the means by which Clark subjected his stepdaughter to sexual contact?

¶20 The jury convicted Clark of sexual assault as defined in § 45-5-502(1), MCA (2001):

“A person who knowingly subjects another person to any sexual contact without consent

commits the offense of sexual assault.” “Sexual contact” is defined in § 45-2-101(66), MCA

(2001):

7
 “Sexual contact” means touching of the sexual or other intimate parts of the
person of another, directly or through clothing, in order to knowingly or
purposely:
(a) cause bodily injury to or humiliate, harass, or degrade another; or
(b) arouse or gratify the sexual response or desire of either party.

¶21 Clark argues that subsections (a) and (b) describe distinct acts and that the District

Court should have instructed the jury that it had to be unanimous as to how Clark subjected

T.C. to sexual contact. Its failure to do so, Clark contends, was plain error.

¶22 Clark relies on our decisions in State v. Weaver, 1998 MT 167, 290 Mont. 58, 964

P.2d 713, and State v. Weldy (1995), 273 Mont. 68, 902 P.2d 1, for the proposition that the

jury had to be unanimous regarding either subsection (a) or subsection (b) of § 45-2-101(66),

MCA. The relevant dispute in Weaver was whether the broad counts under which Weaver

was convicted of sexual assault alleged a continuous course of conduct or discrete acts upon

each one of which the jury needed to reach a unanimous decision. We reversed for plain

error because “the District Court should have given an instruction to make it clear to the jury

that it was required to reach a unanimous verdict on at least one specific act for each count.”

Weaver, ¶ 38.

¶23 In Weldy, we held that the three subsections of § 45-5-202(2), MCA (1993), defining

felony assault, were “not alternative means of satisfying one common element. Rather, they

each set forth separate offenses in themselves.” Weldy, 273 Mont. at 78, 902 P.2d at 7. In

reversing the conviction, we concluded that the district court should have made it “clear to

8
the jury that it was required to reach a unanimous verdict under subsection (a), subsection

(b), or both” 2 Weldy, 273 Mont. at 79, 902 P.2d at 7.

¶24 Clark’s reliance on Weaver and Weldy is misplaced. Section 45-2-101(66), MCA,

allows for two means of satisfying the “knowingly or purposely” element of sexual contact; it

does not articulate two separate offenses. See Kills On Top v. State (1995), 273 Mont. 32,

901 P.2d 1368; Weldy, 273 Mont. at 77-78, 902 P.2d at 6-7 (discussing Kills On Top).

¶25 Therefore, we discern no claimed errors that implicate Clark’s fundamental

constitutional rights, and we decline to exercise plain error review of the District Court’s

unanimity instruction to the jury.

¶26 Did the District Court abuse its discretion by denying Clark’s motion for a new trial

after the complaining witness recanted her testimony?

2
Subsection (c) was not at issue.

9
¶27 After consideration of the parties’ arguments, we conclude herein that the state of the

law as it relates to motions for a new trial based on new evidence and, more specifically,

recantations of trial testimony by a witness, is muddled and in need of clarification. 3 We

begin by addressing the test we stated in State v. Greeno (1959), 135 Mont. 580, 586, 342

P.2d 1052, 1055, which found its genesis in the seminal case decided by the Supreme Court

of Georgia, Berry v. State (Ga. 1851), 10 Ga. 511, describing when it is proper to grant a new

trial due to the discovery of new evidence. We proceed to explain the interplay of the Berry

test with our rule from State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, which

specifically addressed post-trial recantations. We then provide clarification to the Berry test

and conclude by illustrating how the clarified rules apply to the instant case.

¶28 Several variants of the Berry test are used by courts throughout the nation. The

federal courts use different versions to evaluate Rule 33, Fed.R.Crim.P., motions for a new

trial based on new evidence. Likewise, many state courts use their own versions of the Berry

test for analogous new trial motions. The original test read as follows:

Upon the following points there seems to be a pretty general concurrence of
authority, viz.: that it is incumbent on a party who asks for a new trial, on the
ground of new discovered evidence, to satisfy the Court, 1st. That the evidence
has come to his knowledge since the trial. 2d. That it was not owing to the
want of due diligence that it did not come sooner. 3d. That it is so material that
it would probably produce a different verdict, if the new trial were granted.
4th. That it is not cumulative only--viz.: speaking to facts, in relation to which
there was evidence on the trial. 5th. That the affidavit of the witness himself
should be produced, or its absence accounted for. And 6th, a new trial will not

3
Section 46-16-702, MCA, permits courts to grant a new trial “if required in the
interest of justice.”

10
 be granted, if the only object of the testimony is to impeach the character or
credit of a witness.

Berry, 10 Ga. at 527. Since the 1851 rendering of the Berry decision, there have been myriad

permutations of the Berry test and its elements, 4 and we adopted these elements in Greeno. 5

¶29 In 1928, the United States Court of Appeals for the Seventh Circuit in Larrison v.

United States (7th Cir. 1928), 24 F.2d 82, created a different test that specifically addressed

recantation evidence as grounds for a new trial. The Court stated:

[A] new trial should be granted when, (a) The court is reasonably well satisfied
that the testimony given by a material witness is false. (b) That without it the
jury might have reached a different conclusion. (c) That the party seeking the
new trial was taken by surprise when the false testimony was given and was
unable to meet it or did not know of its falsity until after the trial.

Larrison, 24 F.2d at 87-88. Since its creation, several courts have adopted the Larrison test,

combined it with the Berry test, or noted it without commitment as to its authority or

applicability in their jurisdiction. See, e.g., United States v. Di Paolo (2nd Cir. 1987), 835

4
See, e.g., State v. Loose (Utah 2000), 994 P.2d 1237, ¶ 16 (three elements); Jock v.
State (Tex. Ct. App. 1986), 708 S.W.2d 545, 547 (four elements); United States v. Kulczyk
(9th Cir. 1991), 931 F.2d 542, 548 (five elements). Despite this widespread evolution,
Georgia has retained its original six element test with only a few minor changes in wording.
Drake v. State (Ga. 1982), 248 Ga. 891, 894, 287 S.E.2d 180, 182.
5
Our statement of the elements was virtually identical to Berry: “(1) That the
evidence must have come to the knowledge of the applicant since the trial; (2) that it was not
through want of diligence that it was not discovered earlier; (3) that it is so material that it
would probably produce a different result upon another trial; (4) that it is not cumulative
merely--that is, does not speak as to facts in relation to which there was evidence at the trial;
(5) that the application must be supported by the affidavit of the witness whose evidence is
alleged to have been newly discovered, or its absence accounted for; and (6) that the
evidence must not be such as will only tend to impeach the character or credit of a witness.”
Greeno, 135 Mont. at 586, 342 P.2d at 1055.

11
F.2d 46, 49 (adopting Larrison); United States v. Pearson (10th Cir. 2000), 203 F.3d 1243,

1274 (applying a Berry variant and the first prong of Larrison); United States v. Sullivan (5th

Cir. 1997), 112 F.3d 180, 183 n.3 (“We do not decide whether the Larrison Rule is

viable . . . .”). However, in 2004, the Seventh Circuit abandoned the test that it fashioned in

favor of the more general Berry test. United States v. Mitrione (7th Cir. 2004), 357 F.3d 712,

718 (overruling Larrison). Despite Larrison’s rejection by the Seventh Circuit, some

jurisdictions retain the test. United States v. Wallace (4th Cir. 1976), 528 F.2d 863, 866

(adopting Larrison), cited in Stitt v. United States (E.D. Va. 2005), 369 F.Supp.2d 679;

Williams v. State (Minn. 2005), 692 N.W.2d 893, 896. Though we have never adopted

Larrison in Montana, we discuss it here because it is useful to our analysis, as will become

evident.

¶30 In Perry we outlined yet a different rule to apply in cases where a prosecution witness

recants his trial testimony after a verdict is announced and the defendant moves for a new

trial on the grounds that the recantation is newly discovered evidence. We stated in Perry,

232 Mont. at 466, 758 P.2d at 275 (brackets omitted),

When a new trial is sought on the basis of recanting testimony of a prosecution
witness, the weight to be given such testimony is for the trial judge passing on
the motion for a new trial to determine. The trial judge is required to grant a
new trial only when he is satisfied the recantation of the witness is true.

The purpose of the Perry rule was to recognize the district court’s wide latitude in its

consideration of a motion for a new trial in this context. However, when considered together

12
with our precedent from Greeno and Greeno’s incorporation of Berry, Perry presents legal

and logical problems.

¶31 The legal history of the Perry rule reveals a subtle evolution of a sensible rule into an

unworkable one. Our rule in Perry was taken directly from a case decided by the Supreme

Court of Kansas, State v. Norman (Kan. 1982), 652 P.2d 683, 689. The second part of the

Perry rule—that a trial judge is to decide whether the recantation is true—is ultimately

derived from State v. Green (Kan. 1973), 508 P.2d 883, 889. In Green, the Supreme Court of

Kansas rejected the appellant’s argument that the trial court cannot weigh the credibility of

recantation evidence because it is a function reserved to the jury at a new trial. Green, 508

P.2d at 888. The Green decision focused on the appropriateness of a trial judge determining

the credibility of a recantation when ruling on a motion for new trial. Green, 508 P.2d at

889. In doing so, the Kansas Court used language similar to Berry, stating that “[a] new trial

should not be granted on the ground of newly discovered evidence unless the district court is

satisfied the evidence would probably produce a different verdict . . .” Green, 508 P.2d at

889 (quoting State v. Campbell (Kan. 1971), 483 P.2d 495, 497), but it went a step further by

assigning the trial judge the task of determining the veracity of the recantation. Green, 508

P.2d at 889.

¶32 This further step illustrates the logical problem of our Perry rule. In the context of a

prosecution witness’s recantation that is material to the issues at trial, the Berry element

permitting a new trial if the evidence would “probably” produce a different verdict is

practically irrelevant because a district court may order a new trial only when it is convinced

13
the recantation is true. If a trial judge believes the recantation to be true, the “probably”

requirement becomes woefully inadequate, as the recantation of material testimony would

almost certainly produce a different result. Conversely, if a trial judge believes the

recantation to be false, how could it “probably” produce a different result? The only

situation in which the Perry rule and the Berry rule could effectively work in concert is when

a trial judge believes one thing about the veracity of the recantation while simultaneously

believing a new jury would probably disagree with him. This small category of

circumstances is not one upon which our general principles of law in this area should be

focused. Moreover, the plain reading of the Perry rule is troublesome, for it inappropriately

places the judge in the role of fact-finder, inevitably, in some cases, on the key matter of the

guilt or innocence of the accused. Therefore, to the extent that Perry stands for the

proposition that a “trial judge is required to grant a new trial only when he is satisfied the

recantation of the witness is true,” it is overruled.

¶33 However, to the extent that Perry stands for the proposition, “When a new trial is

sought on the basis of recanting testimony of a prosecution witness, the weight to be given

such testimony is for the trial judge passing on the motion for a new trial to determine,” it is

retained as authoritative precedent. This consideration, as explained below, should be merely

part of the Berry analysis.

¶34 As noted above, the Berry test has seen innumerable alterations over its life, usually

with little or no rationale or explanation for the differing versions. We now perceive the

14
Berry test, as articulated in Greeno, to be antiquated and imprecise. Therefore, in an effort to

establish a clearer test with a cogent rationale, we restate the Berry test as follows.

To prevail on a motion for a new trial grounded on newly discovered evidence,
the defendant must satisfy a five-part test:
(1) The evidence must have been discovered since the defendant’s trial;
(2) the failure to discover the evidence sooner must not be the result of a lack
of diligence on the defendant’s part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of
resulting in a different outcome. 6,7

¶35 We have dropped the requirement that the new evidence be supported by affidavit

because imposing the requirement is at best superfluous and at worst too limiting to a district

court’s evaluation of new evidence.

¶36 The fifth element, pertaining to reasonable probability of a different outcome, is most

likely to be the crux of any district court’s evaluation of new trial motions based on new

6
For relatively similar restatements of the Berry test, see Kulczyk, 931 F.2d 542, 548;
Mitrione, 357 F.3d 712, 718 (overruling Larrison); United States v. Provost (8th Cir. 1992),
969 F.2d 617, 620; United States v. Meyers (3rd Cir. 1973), 484 F.2d 113, 116; Wayne v.
State (Minn. 1993), 498 N.W.2d 446, 447; and Sanchez v. State (Ind. 1927), 199 Ind. 235,
240.
7
There is inconsistency in the federal courts’ Berry terminology. Some of the federal
courts appear to equate “reasonable probability” with “probably,” though the terms have
plainly different meanings. See, e.g., United States v. Rouse (8th Cir. 2005), 410 F.3d 1005,
1009; Mitrione, 357 F.3d 712, 718. It is possible that the courts have mixed the prospective
Berry test with the retrospective “reasonable probability” test used in other contexts. See,
e.g., Strickland v. Washington (1984), 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d
698 (retrospective reasonable probability test applies when exculpatory information not
disclosed to the defense by the prosecution, when testimony was made unavailable to the
defense by government deportation of a witness, and when defendant’s counsel is alleged to
have made unprofessional errors).

15
evidence. In the present context, “reasonable probability” is somewhere between the

Larrison test’s “might have reached a different conclusion” standard and Berry’s “probably

produce a different verdict” standard, and for good reason. 8 In any given case, a jury

“might” have reached a different conclusion based on any small, even irrelevant, change in

trial evidence because “might”means “any chance at all.” This retrospective test is simply

too broad. In contrast, a district court could be convinced that the new evidence before it has

a strong chance of bringing about a different verdict upon a new trial, but it may not think

this possibility so strong that it “probably” would produce a different verdict—i.e., that it has

a 51 percent or greater chance of producing an a different verdict. This prospective test is too

restrictive. However, the reasonable probability standard adopted herein properly leaves to

the trial judge determinations of weight and credibility of the new evidence, and to consider

what impact, looking prospectively at a new trial with a new jury, this evidence may have on

that new jury.

¶37 In evaluating a motion for new trial under the restated Berry test, a district court will

naturally consider many factors. In the context of recantations, for example, nothing in our

decision today negates the concerns we expressed in Perry that recantations are to be

“viewed with great suspicion” and that they “demonstrate[] the unreliability of a witness,”

8
For a useful discussion of the confusion courts have created about the appropriate
analysis regarding how new evidence could affect a new jury or, perhaps, how the original
evidence may have affected the trial jury, see United States v. Huddleston (D. Me. 1998), 23
F.Supp.2d 72, 77-79, and Sharon Cobb, Gary Dotson As Victim: The Legal Response To
Recanting Testimony, 35 Emory L.J. 969, 977-80 (1986).

16
lest the finality of trial verdicts be at the mercy of the scofflaw or unreliable witness. Perry,

232 Mont. at 466, 758 P.2d at 275. In addition, it is understood that the recanting witness

lacks credibility by virtue of the fact that he has already lied at least once, Provost, 969 F.2d

617, 620 (“where a witness makes subsequent statements directly contradicting earlier

testimony the witness either is lying now, was lying then, or lied both times”), but the

function of the district court in this instance is to examine how the recanting witness’s

credibility may affect a new jury’s verdict. To take a similar but more distinctive situation,

recantations by child victims of sexual abuse are notoriously unreliable and suspect, see

People v. Schneider (Colo. 2001), 25 P.3d 755, 763 (collecting cases), and that reality could

appropriately contribute to a district court’s evaluation of the credibility of a recantation in

those circumstances and the recantation’s subsequent effect on a jury. These concerns are

but some of what a district court may consider in applying the restated Berry elements when

ruling on a motion for new trial.

¶38 To summarize, as a district court applies the restated Berry test to a motion for a new

trial based on a recantation by a prosecution witness, the district court is not to make factual

determinations as to the veracity of the recantation. Rather, the district court should evaluate

the recantation for materiality and its tendency to be cumulative or impeaching, and should

determine whether there is a reasonable probability that a new trial would produce a different

outcome. Keeping in mind the aspects of recantations that make them inherently suspect,

determinations of weight and credibility are left to the trial judge. Then, if the Berry

elements are properly met, a new trial is warranted. If not, the prior judgment stands.

17
¶39 A further comment is in order regarding the applicable standards of review. We have

held that, generally, we will review rulings on motions for a new trial for abuse of discretion.

See ¶ 18 above. While this remains true, we note that, to the extent that a district court makes

findings of fact in its application of the restated Berry test (i.e., in relation to elements one

and two), those findings must be made by a preponderance of the evidence and will be

reviewed for clear error. Compare State v. McCallum (Wis. 1997), 561 N.W.2d 707

(Abrahamson, C.J., concurring) (discussing the standards of review that appellate courts

apply to the several elements of the Berry test). Where a district court exercises its discretion

in such application (i.e., in relation to elements three, four, and five), its decisions will be

reviewed for abuse of that discretion.

¶40 We turn now to the application of the restated Berry test to the present case. Clark

focuses his argument on the Berry elements, contending that the circumstances of T.C.’s

recantation satisfy the test. However, he does not address how Perry bears on our evaluation

of the District Court’s order denying his motion for new trial.

¶41 The State responds that the new evidence fails the Berry test because T.C.’s

recantation is ““not so material that it would probably produce a different result”” upon a

new trial. However, the State relies more heavily on Perry. The State argues that serious

problems with T.C.’s credibility were explored at trial, that T.C.’s recantation was motivated

by her desire to repair her relationship with her mother, and that T.C. was subject to pressure

from Clark, Christina, and others to conform her story to Clark’s. For these reasons, the

18
State argues, the District Court properly exercised its discretion under Perry in denying the

motion for a new trial.

¶42 Given our refinement of the Berry test, our partial overruling of Perry, and our

inability to glean from the record the District Court’s reasons for denying the motion for a

new trial, we cannot discern whether the law has been correctly applied. Therefore, we are

obliged to reverse the District Court’s order and remand for the District Court to undertake

anew Clark’s motion for new trial.

CONCLUSION

¶43 For the foregoing reasons, we decline to exercise plain error review of the District

Court’s unanimity instruction to the jury; thus, we affirm the judgment of conviction.

However, we reverse the District Court’s order denying Clark’s motion for a new trial, and

we remand the cause for further proceedings consistent with this opinion.

¶44 Affirmed in part, reversed in part, and remanded for further proceedings.

/S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER

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