concurring.
In his dissent, Chief Justice Urbigkit has leveled unfounded, unjustified, serious charges toward members of this court. This concurrence issues because I am certain that we all benefit from a full, open discussion of such profound disagreements as those encountered in this case. I am compelled to concur to discuss what is a collection of misstatements, incorrect citations, inaccurate statements of law, and the accusations against this court. Thus, the majority is accused of:
1. Rejecting established judicial logic;
2. Rejecting the majority of cases;
3. Denigrating sole witness recantation
4. For the purpose of innocent person incarceration; and
5. Using an emotional word, recanted, rather than a supposed benign word perjury.
Thus, the dissent states:
“this majority casts aside a course of cases regarding motions for new trial dating back twenty-four years to the initial Wyoming case of Opie v. State, 422 P.2d 84 (Wyo.1967). * * * [T]he majority then rejects established judicial logic and a principle of decision found in the majority of cases to denigrate sole witness recantation in favor of potentially innocent person incarceration.” Urbig-kit, C.J., dissenting at p. 830.
and continuing:
“We are called to face perjury versus possible justice in the context of what Brown calls abjured testimony and the State, by emotionally impacted characterization, labels recantation. * * * A new [test for recanted testimony] creation appears from this majority’s decision directed to exclude jury review and deny justice to the accused. I dissent.” Urbig-kit, C.J., dissenting at pp. 831-32.
We are accused of “denigratpng] sole witness recantation” in favor of innocent person incarceration. This accusation brings the fallacy of the dissent clearly into view. The dissent depends for its own credibility upon this being a case in which conviction was based upon sole witness testimony, i.e., a case in which there was no other evidence of guilt. If there were other corroborating evidence of guilt, the entire premise of the dissenting opinion is incorrect, and it becomes a random meander through a supposed area of law having no relevance to this case.
If corroboration requires that a third person was present, observed, and could testify to the sexual intercourse, corroboration would be rare indeed. Obviously, such is not required. Corroborating evidence is, “[e]vidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.” Black’s Law Dictionary, 311 (5th Ed.1979); and see 9A Words & Phrases, “corroborate; corroboration,” “corroborating circumstances,” “corroboratory circumstances,” “corroboratory evidence,” “corroborative,” “corroborative proof,” “corroborative testimony,” “corroborating proof,” (1960 & 1990 Pocket Part). In Larsen v. State, 686 P.2d 583, 585-86 (Wyo.1984), we quoted with approval this statement from State v. Smith, 16 Utah 2d 374, 401 P.2d 445, 447 (1965):
“Two alternative hazards are confronted. On the one hand, in accepting the testimony of a child there is the danger that she may not be telling the truth, in which event an innocent man may be convicted of crime and suffer the consequences thereof. On the other, if the child’s testimony is not accepted, a man guilty of crime, and possibly with the potential for more such, will go free. In this connection, it must be borne in mind that when such an offense is committed, it is done with the greatest possible stealth and secrecy, so that most often the testimony of the victim, coupled with the type of corroboration we have here, is the only evidence we have available upon which to determine guilt or innocence. The fact that there are difficulties involved should not prevent the processes of justice from functioning.”
In Gezzi v. State, 780 P.2d 972 (Wyo.1989), we affirmed a similar conviction with even less in the way of corroborating evidence. In footnote 4 of that opinion we recognized that our rule in this regard is *826well within the mainstream of current American jurisprudence. In Andrews v. State, 529 N.E.2d 360 (Ind.App.1988), corroboration was that both female victims told similar stories, and the ten-year-old brother saw the girls leaving defendant’s bedroom sweating and crying. In State v. Moore, 242 Kan. 1, 748 P.2d 833 (1987), corroboration was the victim’s testimony concerning prior acts.
Let us examine the record for corroboration of the incestuous sex crime charges against appellant. The corroborating evidence supporting the testimony of MCX is as follows:
a. KX, a stepdaughter living in foster homes since 1985 because of appellant’s prior sexual abuse, testified:
“Q. Did you — Did he ever touch you in places?
“A. Yes.
“Q. Touch you around the breasts and the vaginal area?
“A. Yes.
“Q. Okay. Did this progress on to anything more?
“A. It gradually progressed on to sexual intercourse.
“Q. Okay. How long was it — How long did this take place, this sexual contact type activity until you had intercourse with your father?
“A. Approximately two years.
⅜ * * * * *
“Q. Okay. Now, [KX], when these type of things would happen between you and your father, did he ever tell you anything about why this was happening?
“A. He would say that it would prove his love and that it was to help me in the future with sexual relations with other boys and to know what they would do.”
And concerning a telephone call from MCX, KX testified:
“Q. Have you had any conversations with [MCX] about any possible or suspected sexual abuse of her by your father?
“A. Not until October of 1985.
“Q. Okay. In October of ’85, you had a conversation with [MCX]?
“A. It was brief. She called me up and told me that she was leaving — was running away and my first response was why.
“Q. Uh-huh?
“A. And she told me, ‘He’s done the same thing to me.’
“Q. I see. And when she said, ‘He’s done the same thing to me,’ what did you take that to mean?
“A. That he had had sexual intercourse with her.”
b. Appellant, though denying sexual intercourse, testified:
“Q. Was the fondling for teaching/learning experiences?
“A. Was my fondling of her — I would have to answer that yes.
“Q. How many times did this fondling occur?
“A. There was three different occasions, I presume is what you’re — three different occasions.
“Q. During these three different occasions, did you ever touch [MCX’s] breasts?
“A. Once, yes.
* * * * * *
“Q. Okay. What was your daughter doing at this time that made you feel that it was necessary to do that [teach her about sex]?
“A. Shortly before the first incident, she was — she had been babysitting and she’d lost her virginity.
* * * * sjc *
“Q. I'm puzzled about this. These three incidents that you related, you did this after your daughter had lost her virginity, you state?
“A. Yes.
“Q. How old was she?
“A. Twelve.
“Q. Twelve. If she had lost her virginity, don’t you think she knew what an erect penis looked like?
“A. I would presume so, yes.
*827“Q. Don’t you think she would probably have had her breasts fondled by then?
“A. I know she had. She told me she had.
“Q. But yet you wanted to — never mind. Strike that. You stated that you talked to your wife about this; is that correct?
“A. Yes.”
c. Appellant’s wife L. Brown testified on cross-examination:
“Q. And do you remember me asking you if during those sessions, the Defendant admitted to having had sexual contact with his daughters?
“A. I don’t remember the exact wording, Mr. Donovan, no.
“Q. But do you remember, generally, me asking you a question along those lines?
“A. Yes, I do.
“Q. And do you remember answering yes, he admitted it?
“A. I said yes.
“Q. And he has, in fact, admitted it, has he not? To you?
“A. No. The only time we’ve talked about it was in the counseling sessions, Mr. Donovan.
“Q. But you did state during the preliminary hearing that he had admitted it?
“A. During counseling, yes.”
The above is clear, powerful corroboration of MCX’s trial testimony.
The dissent next castigates the majority for referring to the victim’s change of story as a recantation, saying the word is used as “emotionally impacted characterization.” Recantation is the correct word and a legal term of art. Black’s Law Dictionary, 1139 (5th ed. 1979); Webster’s Third New International Dictionary, 1893 (1986). The dissent’s preference for abjured testimony or perjury is incorrect. Black’s Law Dictionary, 7, 1025; Webster’s Third New International Dictionary, 4, 1682. At best, this can be characterized as an effort to use a euphemism where the proper word would do. At worst, it is an effort to obfuscate the issue in order to reverse an extremely serious criminal conviction.
The majority is next accused of rejecting the view of a majority of courts. Contrary to the claim that the court rejects the majority of cases, we have adopted the majority view. It is the dissent that relies upon a single California intermediate appellate court case. That case represents, at best, one view from a splintered California appellate system. People v. Minnick, 214 Cal.App.3d 1478, 263 Cal.Rptr. 316 (1989). In reaching a decision, which varies significantly from other similar California cases, the appeals court noted: the defendant had no prior record (not so here); the defendant consistently denied the incident (perhaps so here, but the defendant admitted to other gross improprieties and once admitted to the acts in a counseling session); there was no corroboration (not so here); victim changed story multiple times (not so here); and district judge could not judge the victim’s credibility from personal observation (not so here). The California appeals court affirmed the trial judge’s decision to grant a new trial on the basis that it was an expression of the court’s sound discretion. We here also affirm the trial judge’s decision as an exercise of sound discretion, except here it was a denial of a new trial motion. We affirm that decision because, like the California court, we find no abuse of discretion.
The distinction the dissent makes between credibility and truthfulness of a recanting witness is not supported by the cases cited. Ahvakana v. State, 768 P.2d 631 (Alaska App.1989) is cited for the proposition that “[i]f the events are definitive, credibility is lacking.” Urbigkit, C.J., dissenting at p. 849. In this case, however, the witness told the defendant’s attorney that he lied at trial; but at a hearing, under oath, the witness reaffirmed the defendant’s guilt and testified that he lied earlier because he feared prison inmates would beat him up. 768 P.2d at 632. The Alaska court held that “courts do not hesitate to deny a new trial” in such circumstances. Id. at 633.
*828The dissent then cites three cases for the proposition that “[i]f the changed testimony in itself denies belief, credibility is also lacking.” Urbigkit, C.J., dissenting at p. 849. The first case cited, State v. May, 227 Kan. 393, 607 P.2d 72 (1980), has nothing to do with witness recantation or new trial motions. The only thing close to something on point in this case is its holding that a judge may consider the falsity of a defendant’s testimony in making a sentence determination. 607 P.2d at 77.
In State v. Estrada, 537 A.2d 983 (R.I.1988), the appellate court found that the trial court did not need to reach the credibility of the recanted testimony. Thus, any inference drawn from this case can be considered dicta.
The last case cited speaks of truthfulness, not credibility, of a witness when it states:
“ ‘Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.’ ” (emphasis added) Bell v. State, 90 So.2d 704, 705 (Fla.1956) (quoting Henderson v. State, 135 Fla. 548, 185 So. 625, 630, 120 A.L.R. 742 (1938)).
Next expressed is a concern that this case will overrule Lacey v. State, 803 P.2d 1364 (Wyo.1990). Although Lacey does state that the district court concluded the witness’ “recanting testimony lacked sufficient credibility to warrant a new trial,” Id. at 1369, we continued stating “[t]hat conclusion clearly implies that the evidence was insufficient for the court to conclude that the testimony given at the trial was false.” (emphasis added) Id.
From the dissent’s roving review of supposed law, one might divine the debate presented is whether the test for judging recanted testimony should be:
a. Is it truthful; and if truthful, might it change the outcome of the trial?
or
b. Is the witness credible; and if credible, will it probably affect the outcome of the trial?
I note, borrowing a dissent citation, that
“The tests seem equally exacting; the difference is that Berry [v. State, 10 Ga. 511 (1851) ] is more demanding regarding the probative value of the recantation while Larrison [v. United States, 24 F.2d 82 (7th Cir.1928)] emphasizes the credibility of the witness. Hence, the two tests in actuality may present nearly equivalent hurdles to a defendant requesting a new trial.” Comment, Gary Dotson as Victim: The Legal Response to Recanting Testimony, 35 Emory L.J. 969, 978 (1986).
The author of the Emory Law Journal article in effect says there is no real difference between the two tests. At first blush, it would seem that if the judge found the witness credible, it would be because he believed her; and if he believed her, it was because he was of the opinion that she was testifying truthfully. If he found her not credible, could it be he believed she was not testifying truthfully? What would be the result should we remand this case for further proceedings consistent with this opinion? I have no doubt the judge, having found the witness untruthful, would surely find the witness not credible. The result would be denial of the new trial motion— the same — how come?
W.R.Cr.P. 34 places in the trial court the authority to grant a new trial if “required in the interest of justice.” Larrison v. United States, 24 F.2d 82 (7th Cir.1928), recognized the duty of the trial court to judge truth and, commenting upon the policy factors present, stated:
“ ‘But if, on the contrary, he (the judge) was convinced that the second testimony was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked. He was not at liberty to shift upon the shoulders of another jury his own responsibility. That would have been to make the conspiracy triumphant. He was charged with the responsibility to seek the truth himself.’ ” Id. at 88 (quoting with approval People v. Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916)).
*829The test then adopted for ruling on new trial motions was stated in Larrison as:
“We shall approach this question on the assumption that 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.” (emphasis added) Id. at 87-88.
This court no more casts aside 24 years of cases beginning with Opie v. State, 422 P.2d 84 (Wyo.1967), than does the dissent. We simply add to the Opie test an additional requirement when the newly discovered evidence is recanted testimony. The dissent would also add an additional requirement to Opie when it states, “the proper approach in these kinds of cases and particularly when related to recanted testimony should address the foundational basis first to assess credibility * * *.” Urbigkit, C.J., dissenting at p. 849. It is eminently unfair to acknowledge the need for an additional requirement to Opie, and then point an accusatory finger at the majority, suggesting that we cast aside 24 years of precedent when, if true, the dissent also proposes to east aside the same 24 years of precedent.
Next it is said that Brown got further than Story v. State, 788 P.2d 617 (Wyo.1990), “in part because of the adamancy of this writer’s opinion.” Urbigkit, C.J., dissenting at pp. 832-33. The apparent meaning of the self-serving statement is that Brown was given a hearing that Story was denied because of the writer’s opinion in Story. Credit is taken where no credit is due. Of this I am certain. This judge was not driven to granting a hearing because of something the “writer” wrote. A hearing was provided because a hearing was appropriate.
We note that the dissenter here has dissented frequently in cases such as this, espousing rules which would establish such an onerous standard of proof that virtually all incest/indecent liberties cases would be impossible to prove. Monn v. State, 811 P.2d 1004, 1011 (Wyo.1991) (Urbigkit, C.J., dissenting); Gale v. State, 792 P.2d 570, 590 (Wyo.1990) (Urbigkit, J., dissenting); Zanetti v. State, 783 P.2d 134, 139 (Wyo.1989) (Urbigkit, J., dissenting); Gezzi v. State, 780 P.2d 972, 978 (Wyo.1989) (Urbigkit, J., dissenting); Bryan v. State, 745 P.2d 905, 910 (Wyo.1987) (Urbigkit, J. dissenting); Brown v. State, 736 P.2d 1110, 1117 (Wyo.1987) (Urbigkit, J., dissenting); Stewart v. State, 724 P.2d 439, 443 (Wyo.1986) (Urbigkit, J., dissenting).
The dissent would have us disavow the long-established rules followed by this court and a vast majority of other jurisdictions. The result of the views expressed in this dissent, when read in combination with all the other dissents, would quite simply be that child sexual abuse would become unprosecutable except under the rarest of circumstances. Such a course of action as that espoused by the dissent would, indeed, prevent the processes of justice from functioning.
Succinctly stated, this is just another sexual abuse of minors case the dissenting justice would reverse for reasons having no basis in fact or law.