This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-97-2067

State of Minnesota,
Respondent,

vs.

Larry Curtis Biebinger,
Appellant.

Filed September 8, 1998
Reversed
Forsberg, Judge*

Dodge County District Court
File No. K496527

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Paul J. Kiltinen, Dodge County Attorney, Dodge County Courthouse, Mantorville, MN 55955 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

Appellant Larry Biebinger was convicted of first-degree, second-degree, and attempted first-degree criminal sexual conduct in violation of Minn. Stat.  609.342, subd. 1(e)(i), 609.17, subd. 1, and 609.343, subd. 1(e)(i) (1996). Because we conclude that the trial court violated Biebinger's right to a public trial by closing the courtroom without adequate evidence or findings, we reverse.

FACTS

Biebinger was charged by complaint with six counts of sexual penetration and sexual contact committed against his daughter, 15-year-old M.B. During the trial, the state presented the testimony of Dr. Ruth Mathews, a clinical psychologist who was treating M.B. Dr. Mathews testified that M.B. was "fairly anxious about appearing in court," and might be unable to follow longer questions. Later, the prosecutor asked whether the stress of the courtroom would affect M.B.'s "ability to recall and relate the abuse scenario." Dr. Mathews replied that it would, and the following exchange occurred:

Q. Would it be beneficial in your professional opinion to decrease that stress level to clear the courtroom of all unnecessary personnel while she testifies?

A. Yes.

Before M.B. testified, the prosecutor requested a conference at the bench, and requested certain courtroom arrangements, then moved "to clear the courtroom of all non-essential personnel." The court made no formal ruling on the motion and defense counsel did not object. The bench conference concluded, and the prosecutor announced, apparently to the courtroom at large, that "the courtroom has been cleared of all non-essential personnel."

D E C I S I O N

Biebinger argues that the trial court violated his constitutional right to a public trial by closing the courtroom during M.B.'s testimony. The trial court may order the courtroom closed during a criminal trial if there is an overriding interest supporting closure, the closure is no broader than necessary to protect that interest, the trial court has considered reasonable alternatives, and the court has made findings adequate to support the closure. State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995) (citing Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984)).

Before ordering closure of the courtroom, the court must hold a hearing on the issue, and must make findings, "articulat[ing] its findings with specificity and detail supporting the need for closure." Fageroos, 531 N.W.2d at 202; see also State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992) (remanding closure order that was not supported by "evidence or findings" that closure was necessary to protect the witness or ensure fair trial); Minn. Stat.  631.045 (1996) (before ordering closure, court must give prosecutor, defendant, and members of the public "opportunity * * * to object to the closure").

Here, there was no hearing, and no findings by the trial court. Although the state elicited testimony from Dr. Mathews that it would be "beneficial" to M.B. and would "decrease [the] stress level" for her to "clear the courtroom of all unnecessary personnel" during her testimony, this fell short of the requirement of evidence that closure is necessary "to protect the witness," McRae, 494 N.W.2d at 259. Protecting a minor sexual abuse victim is an overriding interest that in individual cases may support closure, but this requires a case-by-case determination, and evidence that closure is necessary, not merely beneficial. See Fageroos, 531 N.W.2d at 202 (holding that in case involving minor victim court must make specific findings supporting need for closure).

Defense counsel did not object to the closure of the courtroom, nor to the lack of findings supporting closure. The supreme court in Fageroos, however, remanded a closure order despite the lack of a record indicating that defense counsel had objected to it. 531 N.W.2d at 201. The state did not file a responsive brief in this appeal. Therefore, no argument has been presented supporting the closure or claiming the issue was waived.

The "difficult issue" is determining the appropriate remedy. Id. at 203. Because the trial court's error goes beyond the lack of findings, we cannot remand merely for adequate findings. Id. Although in other circumstances it might be appropriate to remand for an evidentiary hearing, here it is apparent the state had no evidence that closure was necessary. See generally State v. DeRose, 365 N.W.2d 284, 286 (Minn. App. 1985) (reversing rather than remanding suppression order that could not be sustained on the facts). Rather than remand to allow the state, which has defaulted in this appeal, a hearing which it has not even requested, we reverse, leaving the prosecutor the option of retrying appellant.

Reversed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, 2.