This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
State of Minnesota,
Filed September 12, 2000
Affirmed in part and remanded in part
Hennepin County District Court
File No. 99029944
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Richard J. Coleman, Nicholas P. Slade, 295 Marie Avenue East, West St. Paul, MN 55118 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Foley, Judge.*
Rene Castillo-Benitez appeals from conviction of second-degree criminal sexual conduct, asserting constitutional error in a courtroom closure order and evidentiary error in admission of a videotaped interview of the eight-year-old complainant. We affirm the district court’s admission of the videotape as a prior consistent statement. But because Rene Castillo-Benitez’s relatives were excluded from the courtroom without proper findings, we remand for a hearing and findings on closure.
Following a school presentation on good-touch/bad-touch, C.D.C. told her teacher that C.D.C.’s stepfather, Rene Castillo-Benitez, had been sexually touching her. C.D.C.’s teacher reported the child’s statement to authorities, who interviewed C.D.C. The state then charged Castillo-Benitez with second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(h)(iii) (1998), for sexual contact with C.D.C., who was eight years old at the time of trial.
Before C.D.C. testified at trial, the state asked that the court exclude Castillo-Benitez’s relatives from the courtroom during her testimony. The prosecutor stated as a basis, “It was obvious to me as we walked down here that [C.D.C.] became visibly upset by the fact that those family members were here.” The prosecutor acknowledged that exclusion should be addressed on a fact-specific basis, but argued that “where the family members appear and where the child has a visible reaction to that to the point that it may impair her testimony, I think [exclusion is] reasonable under the circumstances.” Castillo-Benitez argued that there was no indication that the relatives’ presence would interfere with C.D.C’s testimony, noting that she had not said anything about their presence.
The court granted the state’s motion to exclude and made the following record:
I think it’s difficult enough for the child to testify without their presence. I think it would be more difficult with their presence and I don’t want to take the time to examine each of their relationships with the child to determine that. I don’t think that’s necessary. I think it is difficult for the child and I don’t want to make it more difficult. I order that they be excluded from the courtroom during this portion of the trial.
Before granting the exclusion motion, the court had interviewed C.D.C. and found that she was competent to testify. The court did not, however, ask C.D.C. whether she was frightened or intimidated about testifying.
At trial, C.D.C. testified that Castillo-Benitez touched her breasts and “private parts” with his hands and with his “private part” on nights when her mother was working. C.D.C. also testified that Castillo-Benitez made her touch his “private part” with her hand. Over Castillo-Benitez’s objection, the court admitted a videotaped interview of C.D.C. as a prior consistent statement. Castillo-Benitez testified and denied that any of the sexual-touching incidents took place. The jury found Castillo-Benitez guilty of second-degree criminal sexual conduct, and he appeals from conviction, challenging (1) the exclusion of his relatives from the courtroom during C.D.C.’s testimony, and (2) the admission of the videotaped interview.
D E C I S I O N
The U.S. and Minnesota Constitutions guarantee a criminal defendant a public trial. U.S. Const. amend. VI; Minn. Const. art. 1, § 6; see also State v. Schmit, 273 Minn. 78, 80, 139 N.W.2d 800, 802-03 (1966). The right, however, is not absolute and “may give way in certain cases to other rights or interests.” Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984); see also Schmit, 273 Minn. at 81-82, 139 N.W.2d at 803-04. Closing the courtroom is justified if there is an overriding interest supporting closure, the closure is no broader than necessary to protect that interest, and the district court makes findings adequate to support the closure. Waller, 467 U.S. at 48, 104 S. Ct. at 2216; State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995).
Minnesota statutes recognize the state’s interest in closing the courtroom during the testimony of a sexual abuse victim who is a minor. Minn. Stat. § 631.045 (1998). The statutes provide that in trials for certain sex crimes, a trial judge may exclude the public from the courtroom during the testimony of a minor or during all or part of the remainder of the trial “upon a showing that closure is necessary to protect a witness or ensure fairness in the trial.” Id. “The judge shall specify the reasons for closure in an order closing all or part of the trial.” Id. While the statutes recognize the need for closure to protect sexual abuse victims who are minors and to provide procedures for closure, the propriety of closure ultimately is a constitutional issue. Fageroos, 531 N.W.2d at 201.
The Supreme Court similarly has recognized that the state’s interest in protecting the physical or psychological well-being of sexual abuse victims who are minors may justify excluding the public during their testimony. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S. Ct. 2613, 2620 (1982). But the interest does not justify excluding the public in all cases. See id. at 610-11, 102 S. Ct. at 2622 (holding unconstitutional mandatory closure rule). Rather, the district court must determine on a case-by-case basis whether exclusion is justified. Id. at 608, 102 S. Ct. at 2621. Courts should consider the victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. Id.
The state argues that there was no closure in this case within the meaning of the Minnesota Statutes or the Constitution because members of the general public and press were not excluded from the courtroom. We reject this argument for two reasons. First, it is not clear from the record whether any people other than Castillo-Benitez’s relatives were present in the courtroom. Thus, the court’s exclusion order may have amounted to a complete closure. Second, the supreme court has recognized that actions excluding the public must be scrutinized regardless of whether there is complete closure. Schmit, 273 Minn. at 85, 139 N.W.2d at 805 (reversing conviction when courtroom remained open only to members of the bar and press).
We conclude that the district court did not create a record sufficient to support closure. Evaluating a similar record, the supreme court held that it was insufficient to support closure in State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992). In McRae, the prosecutor asked that the courtroom be closed to the public because the witness who was a minor made it known that she was very reluctant to testify and that closing the courtroom would be of “great assistance.” Id. at 258. The district court closed the courtroom, finding that that victim was only 15 years old and appeared to the court to be “extremely apprehensive” about testifying. Id. The supreme court found this record insufficient to support closure. Id. at 259. But the court has emphasized that if a remand for a hearing on whether there was a specific basis for closure might remedy the violation, then the initial remedy is a remand, not a retrial. Id. at 260; Fageroos, 531 N.W.2d at 203.
The state asserts that the record is sufficient to support closure because the prosecutor reported that C.D.C. had been upset by the presence of Castillo-Benitez’s relatives and the court found that it would be “more difficult” for C.D.C. to testify in the presence of the relatives. But all sexual abuse victims who are minors may find it harder to testify in front of a defendant’s relatives, and probably will find it more difficult to testify in open court in general. The Sixth Amendment requires a more rigorous inquiry into whether closure is necessary to “protect the witness or ensure fairness in the trial.” McRae, 494 N.W.2d at 259. The district court must state its findings supporting closure with specificity and detail. Fageroos, 531 N.W.2d at 202.
Unconstitutional closure is not subject to harmless error review. Waller, 467 U.S. at 50-51, 104 S. Ct. at 2217; McRae, 494 N.W.2d at 260. The remedy, however, must be appropriate to the circumstances in each case. Waller, 467 U.S. at 50-51, 104 S. Ct. at 2217. When the record is inadequate to determine whether closure was appropriate, the appellate remedy is to remand for a hearing and findings on whether closure was appropriate. State v. Biebinger, 585 N.W.2d 384, 385 (Minn. 1998) (mem.); Fageroos, 531 N.W.2d at 203. Thus we remand to the district court for a hearing and findings.
Castillo-Benitez’s second issue is whether the district court erred by admitting the videotaped interview of C.D.C. as a prior consistent statement. The district court has broad discretion in evidentiary rulings, and a reviewing court will reverse only for an abuse of that discretion. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997).
Under Minn. R. Evid. 801(d)(1)(B), out-of-court statements are not hearsay if the declarant testifies and is subject to cross-examination and if the statements are consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility. Although the statements are not inadmissible hearsay, the district court retains its discretion to exclude the statements under Minn. R. Evid. 403 and 611. Minn. R. Evid. 801(d)(1)(B), comm. cmt. 1989.
The district court did not abuse its discretion by admitting the videotaped interview. C.D.C. testified and was subject to cross-examination. The videotape was helpful to the trier of fact because Castillo-Benitez challenged C.D.C.’s credibility by repeatedly asserting that the sexual-touching incidents she described had never occurred. See Nunn, 561 N.W.2d at 909 (stating that prior statements are helpful to the trier of fact if the witness’ credibility has been challenged). Further, Castillo-Benitez points to no inconsistencies between C.D.C.’s testimony and the videotaped interview, and the transcript of the interview is consistent with C.D.C.’s testimony. The district court did not abuse its discretion by declining to exclude the videotape under rule 403.
Affirmed in part and remanded in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.