This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1016

State of Minnesota,

Respondent,

vs.

Byron A. Anderson

Appellant.

Filed November 19, 1996

Affirmed

Toussaint, Chief Judge

Renville County District Court

File No. K7-92-556

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Thomas J. Simmons, Renville County Attorney, Courthouse, Commerce Building, Box D, Olivia, MN 56277 (for respondent.)

John M. Stuart, State Public Defender, and Marie Wolf, Assistant State Public Defender, 95 Law Center, University of Minnesota, Minneapolis, MN 55455 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

Toussaint, Chief Judge

Appellant Byron Anderson challenges (1) the constitutionality of Minn. Stat. § 631.04 and (2) the sufficiency of findings to justify closing the courtroom for a minor victim's testimony in a criminal sexual conduct case. Because the constitutionality of Minn. Stat. § 631.04 is not properly at issue in this case and the findings of fact were adequate and not clearly erroneous, we affirm.

D E C I S I O N

I.

Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary. The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.

In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citations omitted).

Anderson asserts that Minn. Stat. § 631.04 is unconstitutional because it denies him his constitutional right to a public trial. In support of this assertion, Anderson alleges that Minn. Stat. § 631.04 transgresses the restraints created to prevent unconstitutional courtroom closures in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) and Waller v. Georgia, 467 U.S. 39 (1984). The Supreme Court in Globe held that a statute requiring courtroom closure for a minor sex-crime victim's testimony was unconstitutional, but that trial courts may make case-by-case determinations regarding whether closure is necessary for the minor's welfare. Globe, 457 U.S. at 608-611. Accord State v. McRae, 494 N.W.2d 252, 258 (Minn. 1992). Waller confirmed that the Globe standard for determining when closure is appropriate in First Amendment cases was equally applicable to cases challenging courtroom closure for violations of Sixth Amendment rights. Waller, 467 U.S. at 45. Accord State v. McRae, 494 N.W.2d at 258-259.

The State replies that Anderson may not contest the constitutionality of Minn. Stat. § 631.04 because he did not challenge the statute's constitutionality in the trial court.

Although the parties debate its constitutionality, we conclude that the constitutionality of Minn. Stat. § 631.04 is a moot issue. In its order on remand from this court, the trial court based its conclusions of law upon Minn. Stat. § 631.045 and did not mention Minn. Stat. § 631.04. Because (1) the trial court did not utilize Minn. Stat. § 631.04 in its decision to close the trial during the testimony of the minor victim and (2) Minn. Stat. § 631.04 and Minn. Stat. § 631.045 are not interdependent statutes, we conclude that the constitutionality of Minn. Stat. § 609.04 is not in controversy and will not be decided by this court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citing Thayer v. American Financial Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) ("a reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it").

II.

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01.

Anderson claims that the trial court's findings do not merit the conclusion that courtroom closure was necessary. The State replies that there is sufficient record evidence to warrant the closure. However, in "determining whether closure is justified" trial courts are required to "make findings adequate to support the closure." State v. Fageroos, 531 N.W.2d 199, 200-201 (Minn. 1995) (citing Waller, 467 U.S. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984))).

Minn. Stat. § 631.045 provides that in a criminal sexual conduct case

when a minor under 18 years of age is the person upon, with, or 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 specify the reasons for closure in an order closing all or part of the trial.

Minn. Stat. § 631.045 (1992).

The trial court must also "articulate its findings with specificity and detail supporting the need for closure." Fageroos, 531 N.W.2d at 202.

This trial court's order on remand included findings that:

4. The closure was discussed and decided in chambers with all counsel present. However, the chambers discussion was not recorded, and the court has no clear memory of the discussion.* * *

5. The court was well aware from a hearing on the victim's, competency to testify of his tendency to fidget and become distracted under examination.

6. The prosecuting attorney believes that Minn. Stat. § 631.045 was referred to in the chambers discussion. There were many reasons for requesting closure. Most of these involve the intimidation and distraction which, the victim, a five year old, would feel in the presence of others. The victim especially felt intimidated in the presence of defendant's family, whom he knew well. Another reason for the closure was to protect the victim's privacy. The prosecuting attorney recalls articulating many but possibly not all of these reasons.

7. The defense attorney does not recall the prosecuting attorney articulating the reasons noted above at the time of closure.

The trial court concluded that

1. Under Minn. Stat. § 631.045, a judge may close the courtroom to the public during the testimony of a minor in a criminal sexual conduct case if there is a showing that closure is necessary to protect a witness or ensure fairness in the trial.

2. The closure of the courtroom was justified under Minn. Stat. § 631.045 because there was a showing in chambers that closure was necessary to protect the victim and to insure fairness in the trial by allowing him to testify. The decision to close the courtroom was also supported by the court's concern for the victim's tendency to fidget and become distracted under examination.

Thus, the trial court's findings detail that to justify closure it relied on (1) Minn. Stat. § 631.045, (2) its knowledge of the minor, and (3) its awareness of the intimidation that would result from not closing the courtroom.

Moreover, in a different criminal sexual conduct case, the Minnesota Supreme Court stated

Where it appears that minors are unable to testify competently and coherently before an audience because of embarrassment or fright, temporary exclusion of the public is permissible.

State v. Schmit, 273 Minn. 78, 82, 139 N.W.2d 800, 804 (1966) (n. omitted).

Based on the trial court's finding that the victim would be intimidated by the audience present in the courtroom, we conclude that closure was appropriate.

Affirmed.