This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Mark Ralph Mussell,


Filed February 25, 2003


Stoneburner, Judge


Goodhue County District Court

File No. K80063


Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)


John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


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


U N P U B L I S H E D  O P I N I O N



Appellant Mark Ralph Mussell argues that he is entitled to a new trial because the district court’s findings are insufficient to support the partial closing of the courtroom during the testimony of the child-victim.  We affirm.




            Appellant Mark Ralph Mussell was tried for sexually abusing his daughter, who was nine years old at the time of the trial.  The district court judge excluded the public from the courtroom during the victim’s testimony without making findings to support the partial closure of the courtroom.  Mussell was convicted of two counts of second-degree and one count of fifth-degree criminal sexual conduct for inappropriately touching his daughter. 

Mussel appealed on several grounds, including the lack of findings to support partial closure of the courtroom.  This court affirmed except as to the lack of findings to support closure and remanded the matter to the district court for a hearing and findings on the necessity of closure.  At that hearing, the state presented the testimony of the victim’s mother and the testimony of the psychologist who had provided therapy to the child for eight months prior to trial.  The state also reminded the district court that the state’s motion for closure was made in the presence of appellant and his attorney, and was stipulated to by counsel in chambers.

The district court made 21 specific findings to support its conclusion that limited closure of the courtroom was necessary.  The findings include the fact that both counsel, in chambers, stipulated to the closure as necessary to protect a witness and to ensure fairness in the trial and the fact that there was no objection when the district court announced the limited closure in the courtroom.  This appeal followed.



A person charged with a criminal offense is guaranteed a public trial by the federal and Minnesota constitutions.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  This right is not absolute.  Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 606 (1982).  But the circumstances in which this right will give way “will be rare.”  Waller v. Georgia, 467 U.S. 39, 45 (1984).  A criminal trial may be closed without violating the public trial guarantee when the party seeking to close the hearing advances an “overriding interest that is likely to be prejudiced” so long as the closure is no broader than necessary to protect that interest.  Waller, 467 U.S. 596, 606.  The trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.  Id.  The Minnesota Supreme Court expressly adopted this standard in State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995). 

The Minnesota legislature has authorized the exclusion of spectators from the courtroom if the victim of sexual misconduct is under 18 years of age, on a showing that closure is necessary to protect a witness or to ensure fairness in the trial.  Minn. Stat. § 631.045 (2002).  The judge must give the parties and members of the public the opportunity to object to the closure and must specify the reasons for the closure in an order closing all or part of the trial.  Id.  Because the original record did not contain any information about the reason for closure, the case was remanded.  Now the record has been supplemented to include the fact that closure was stipulated to by counsel to protect a witness and ensure fairness in the trial and supplemented with testimony supporting closure from the child’s mother and therapist.

When parties have stipulated to the exclusion of spectators from the courtroom there can be no appeal based on the district court’s failure to make findings on the necessity for the closure.  State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000) (holding that failure to object to courtroom closing and agreeing to limited closure results in forfeiture of appeal for error based on absence of findings supporting closure), review denied (Minn. Mar. 28, 2000).  Had the stipulation in this case been placed on the record at trial, Mussell’s argument on this issue would not have been considered in the first appeal.  Id

Mussell does not dispute that counsel stipulated to the partial closure as necessary to protect a witness and ensure fairness.  Mussell argues that the stipulation is irrelevant because this court held in the first appeal that the district court erred by closing the courtroom without a record establishing that closure was necessary and remanded for a hearing on the necessity of closure.  We disagree that the remand restricted the manner in which the record could be supplemented to support the closure and we agree with the state that it was appropriate for the district court judge to summarize what occurred in chambers.  See State v. Hendry, 636 N.W.2d 158, 162-64 (Minn. App. 2001) (allowing record to be supplemented by recollection of law clerk about circumstances of jury’s question to the court.), review denied (Minn. Jan. 29, 2002).  The stipulation precludes consideration of Mussell’s claim on appeal that he is entitled to a new trial based on the district court’s failure to make findings supporting closure.

Furthermore, the detailed findings made by the district court on remand address all of the factors to be considered when determining whether closure is necessary to protect the welfare of a minor victim.  See Fageroos, 531 N.W.2d at 202 (stating factors to be considered include age of victim, psychological maturity and understanding, nature of crime, desires of victim, and interests of parents and relatives).  The district court discussed each of these factors before concluding that limited closure of the courtroom during the victim’s testimony was necessary.   

The district court found that the witness’s therapist, who advocates that no child should be forced to testify before the developmental age of 11, used her opinions of children in general to make specific assessments about this child.  The therapist testified that this child was a typical nine-year-old who would have problems testifying about sexual abuse by her father in front of spectators.  The therapist testified that closing the courtroom was critical to eliciting this child’s testimony, given her coping skills and emotional development.  The therapist and the victim’s mother testified about the child’s discomfort when she learned that she was to testify in court, rather than by videotape.  They described how difficult and emotional it was for the child to talk about the abuse even to the therapist and mother.  The child at first said she would not testify in court, but agreed to testify when she was persuaded that it was necessary to stop the abuse.  The district court noted the child’s reluctance to testify, even without spectators, in the courtroom. 

Therefore, even if counsel’s stipulation to the closure at trial is not sufficient to preclude the relief he seeks on appeal, we conclude that the district court’s findings adequately establish the necessity for the partial closure.