This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Albert Lavelle Jones,
Filed June 15, 2004
Hennepin County District Court
File No. 01089401
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion by excluding evidence of an alternative source of the victim’s sexual knowledge and that the district court erred by closing the courtroom during the victim’s testimony without specifying on the record the reasons for the closure. Because we find no abuse of discretion in excluding the questioned evidence but find that the district court erred by failing to state its reasons for closing the courtroom, we affirm in part and remand in part.
In October 2001, D.G., then 11 years old, was living with her mother in a Plymouth apartment, but she often spent weekends and other non-school days at the Brooklyn Park house where her father and her two brothers lived. Appellant Albert Lavelle Jones, who was then 27 years old and who is a distant cousin of D.G.’s father, was also living at the house with the permission of D.G.’s father.
On October 19, 2001, D.G. was lying on a futon mattress in the living room of the Brooklyn Park house. D.G.’s father was at work, and her two brothers were playing outside. Jones lay down behind her and, as D.G. pretended to sleep, Jones began kissing her and undressing her. Jones kissed D.G.’s ears and breasts and inserted his penis and a finger into her vagina. Jones stopped of his own volition. A short time later, Jones stepped outside, and D.G. closed and locked the door behind him and called her mother and told her what had happened. D.G.’s mother called the police. Jones, knowing that D.G. had called her mother, fled, leaving behind his wallet and all of his personal belongings. Police were unable to locate Jones, and a warrant for his arrest was issued. D.G. gave a social worker an interview in which she spoke openly about what had happened and, in doing so, used proper anatomical terms in referring to sex organs. But D.G. did not state in the interview that Jones had penetrated her with his penis. The Hennepin County Attorney filed a complaint charging Jones with one count of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a), 2 (2000).
In June 2002, Jones was arrested in California and extradited to Minnesota to face the charge in the criminal complaint. In August 2002, D.G. told her mother that Jones had sexually molested her, including acts of penile penetration, on two other occasions during the summer of 2001 and that the October 2001 incident had also involved penile penetration. D.G.’s mother notified the police, and D.G. gave police a detailed interview describing the incidents; she again spoke frankly about what had happened. She was examined by a physician specializing in child-abuse cases, who found signs consistent with penile penetration. The county attorney filed an amended complaint charging Jones with three counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a), 2. Trial was set for December 9.
In September 2002, the state learned that, in April 2001, D.G.’s mother had found a note written by D.G. to a boy in which D.G. expressed an interest in having sex with the boy and that shortly after the note was discovered, D.G.’s mother had her examined by a physician to determine if D.G. was sexually active. In September or October 2002, the state obtained a copy of the physician’s record from that exam, which made reference to the note and which indicated that D.G. was probably not sexually active. The state provided Jones with a copy of the record, and, in November, Jones moved to require the state to produce the note for review. The state told Jones and the court that D.G.’s mother had since lost or destroyed the note, but the court ordered the state to “disclose to the defense the essence of the note,” and the state complied. In a conference immediately before trial, Jones moved to have the contents of the note admitted into evidence, arguing that the jury might otherwise infer from the “frankness and sincerity” of D.G.’s testimony and her “large working knowledge of sexual terms” that D.G. learned everything she knew about sex from Jones. The district court denied the motion, reasoning that because consent was not a defense to criminal sexual conduct with an 11-year-old child, D.G.’s sexual knowledge was not relevant.
At the same pre-trial conference, the state moved that the courtroom be closed to the public during D.G.’s testimony. Over Jones’s objection, the district court granted the motion. The court did not specify in its order the reasons for closure, as is required under Minn. Stat. § 631.045 (2002). The jury found Jones guilty of all three charges, and this appeal follows.
D E C I S I O N
Jones argues that, because the probative value of the note written by D.G. outweighed its prejudicial potential, the district court abused its discretion by excluding its contents. Jones claims that the jury might have inferred from D.G.’s testimony, specifically her use of the proper terms for sex organs, that he was the source of all of her sexual knowledge and that, therefore, D.G. would have been unable to describe the alleged events as she did unless they actually occurred. He claims that evidence of an alternative source of sexual knowledge that predated the assaults would have rebutted that inference and that, thus, the evidence had great probative value.
Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990). The appellant has the burden of showing that the district court abused its discretion and that appellant was thereby prejudiced. State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997). If the district court has erred in excluding defense evidence, the error is harmless if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized; [a reasonable jury] would have reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). But if there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, the error is prejudicial. Id.
Generally, evidence of past sexual conduct is admissible only when the victim’s consent is an available defense or when “the source of . . . semen, pregnancy, or disease” is at issue. Minn. Stat. § 609.347, subd. 3 (2002); Minn. R. Evid. 412(1). Neither basis for admissibility is present here. But the supreme court has recognized that, unless its potential for prejudice outweighs its probative value, evidence of a victim’s predisposition to fabricate a sexual-assault charge is admissible if it is necessary to protect the defendant’s constitutional rights to confront his accuser and to offer evidence in his own defense. State v. Caswell, 320 N.W.2d 417, 419 (Minn. 1982). Therefore, “[d]espite the prohibition of a rape-shield law or rule, a [district] court has discretion to admit evidence tending to establish a source of knowledge of or familiarity with sexual matters in circumstances where the jury otherwise would likely infer that the defendant was the source of the knowledge.” State v. Benedict, 397 N.W.2d 337, 341 (Minn. 1986). In determining whether to admit the evidence, the court must balance the state’s interest in guarding the victim’s privacy against the accused’s constitutional rights. Caswell, 320 N.W.2d at 419.
Jones argues that, under Benedict, the contents of the note should have been admitted into evidence to rebut the jury’s likely inference that D.G.’s knowledge of sexual matters came from him. But a court need not admit evidence of an alternative source of sexual knowledge if the evidence is more prejudicial than probative. Benedict,397 N.W.2d at 341. In Jackson v. State, we held that the district court did not err by excluding such evidence because the jury would not likely infer that a 14-year-old victim’s knowledge of sexual matters could have been obtained only from the alleged incidents with the defendant. 447 N.W.2d 430, 435 (Minn. App. 1989). Similarly, here, D.G. was old enough that she could be expected to have some knowledge of sexual matters. At the time of trial, D.G. was 12 years old and in the seventh grade. A child of that age and education level would likely be familiar with the correct terminology for sex
organs. Therefore, it is unlikely that a jury would infer that D.G. could have described the incidents as she did only if they occurred as she testified that they did. Further, there is nothing in the record to suggest that the contents of the note would have demonstrated a propensity or motive for D.G. to lie about Jones’s sexual conduct.
Additionally, the potentially prejudicial effect of the contents of the note outweighed its probative value. Because consent of the victim was not an available defense, any consent to sex with Jones that might be inferred from D.G.’s sexual curiosity or promiscuity as evinced by the note would not be probative. But evidence of D.G.’s sexual curiosity or promiscuity, if admitted, may have unduly influenced the jury’s determination. Because the potentially prejudicial effect of the note’s contents outweighed its probative value, the district court did not err by excluding the evidence.
Jones argues that the district court erred by closing the courtroom to the public during D.G.’s testimony without making findings on the record explaining the decision. Under Minnesota law,
[a]t the trial of a complaint or indictment for a violation of sections . . . 609.341 to 609.3451 . . . when a minor under 18 years of age is the person . . . against whom the crime is alleged to have been committed, the judge may exclude the public from the courtroom during the victim’s testimony 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. The judge shall give the prosecutor, defendant and members of the public the opportunity to object to the closure before a closure order. The judge shall specify the reasons for closure in an order closing all or part of the trial.
Minn. Stat. § 631.045 (2002). Although the statute provides for closure under certain circumstances, “the question whether closure is proper is ultimately a constitutional issue, not a statutory issue.” State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995). Constitutional issues are questions of law, which this court reviews de novo. State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).
The United States and Minnesota Constitutions guarantee a criminal defendant a public trial. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. But this right 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 State v. Schmit, 273 Minn. 78, 81-82, 139 N.W.2d 800, 803-04 (1966) (stating that courts may restrict attendance as necessary to preserve order and protect rights of parties and witnesses). 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; Fageroos, 531 N.W.2d at 201-02. Safeguarding the physical and psychological well-being of a minor victim of sexual assault is a compelling interest that may justify closing the courtroom. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09, 102 S. Ct. 2613, 2620-21 (1982). But the mere fact that a minor sex-abuse victim is testifying does not alone justify closure; the district court must determine on a case-by-case basis whether closure is warranted. Fageroos, 531 N.W.2d at 202. Among the factors that the district court should consider in determining whether to close the courtroom are “the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.” Globe Newspaper, 457 U.S. at 608, 102 S. Ct. at 2621, quoted in Fageroos, 531 N.W.2d at 202.
Here, while Jones and the members of the public attending the trial were given a chance to object to the closure--and Jones did, in fact, object--the district court did not specify in its order its reasons for closing the courtroom. The district court “must articulate its findings with specificity and detail supporting the need for closure.” Fageroos, 531 N.W.2d at 202. The court’s failure to make findings regarding closure is error. State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000).
The proper remedy for the district court’s failure to make detailed findings to support closing the courtroom is remand for an evidentiary hearing in which the prosecutor “should be given an opportunity to establish, if he can, that closure was necessary.” Fageroos, 531 N.W.2d at 203. If the prosecutor cannot show that closure was necessary, the defendant is entitled to a new trial. Id. Accordingly, we remand the case to the district court for an evidentiary hearing on the issue of whether closure of the courtroom during D.G.’s testimony was justified. If the district court finds that closure was warranted, the conviction stands. If the court determines the courtroom should not have been closed, Jones is entitled to a new trial.
Jones also submitted a pro se supplemental brief. But because the brief fails to intelligibly state the legal issues Jones wishes to raise, we need not consider it. See State v. Bowles, 530 N.W.2d 521, 525 n.1 (Minn. 1995). Further, even if the issues were clearly identified, they are waived because the brief contains no argument or citation to legal authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).
Affirmed in part, remanded in part.
 Jones does not explicitly contend that D.G. had a predisposition to fabricate her allegations. But implicit in his argument is the contention that the contents of the note would show that D.G. had sexual knowledge that would at least enable her to fabricate the allegations.