This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Kevin Patrick Doll,


Filed April 20, 1999

Affirmed in part, reversed in part, and remanded

Harten, Judge

Otter Tail County District Court

File No. KX-97-2104

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

David J. Hauser, Otter Tail County Attorney, County Courthouse, 121 West Junius Avenue, Fergus Falls, MN 56537 (for respondent)

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

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.



Appellant Kevin Patrick Doll challenges his conviction of first-degree criminal sexual conduct and his sentence under the patterned sex offender statute, arguing that the district court violated his right to a public trial and did not make the findings required by Minn. Stat. § 609.1352 (1996), the patterned sex offender statute. We affirm in part, reverse in part, and remand.


In the afternoon of October 1, 1997, twelve-year-old A.L. went to the home of her sister's boyfriend, James Pettengill, to care for her sister's two-year-old son. After A.L. arrived to baby-sit, Pettengill went outside to work on his car. Doll arrived at Pettengill's house at approximately 4:30 p.m. and spent time outside with Pettengill. Later, Doll went inside the house where he was alone with A.L. and the child.

At approximately 6:30 p.m., A.L. took the child upstairs to put him to bed. As A.L. returned downstairs, Doll picked her up and threw her facedown on the couch. Doll then placed a couch pillow over the back of A.L.'s head, put his knee in her back and said, "Let me do this or I'll kill you." Doll then removed the pillow, flipped A.L. onto her back, unzipped her jeans and pulled down her pants. After pulling down A.L.'s underwear, Doll put a knife to her throat and ran it down her chest to her vagina. Doll moved the knife back up to A.L.'s throat and inserted his penis in her vagina, forcing intercourse upon A.L.

Doll was charged in Otter Tail County District Court with two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(a) and (d) (1996). At trial, before A.L.'s testimony, the prosecutor, Doll's attorney, and the district court held a discussion off the record. After the discussion, the district court stated, "Folks, we're going to - because a child is going to be testifying, we will clear the courtroom at this time except for court personnel." The courtroom was then cleared. After the presentation of evidence, the jury returned a guilty verdict on count I (sexual penetration or sexual contact with a person under 13 years of age by an actor more than 36 months older than the complainant) and a verdict of not guilty on count II (sexual penetration where the actor is armed with a dangerous weapon and uses or threatens to use the weapon to cause the complainant to submit).

At sentencing on April 27, 1998, Dr. Rick Ascano testified regarding his psychological evaluation of Doll. After conducting tests and speaking with Doll, Dr. Ascano formed the opinion that Doll is a "profound risk to public safety as a sex offender," he "has a significant risk of recidivism," and he is "a pattern offender." Having heard Dr. Ascano's testimony and reviewed the pre-sentence investigation report, the district court sentenced Doll under Minn. Stat. § 609.1352 (1996), the patterned sex offender statute, to 360 months' imprisonment. Doll appeals his conviction and his sentence.


1. Courtroom Closure

The Sixth Amendment grants each criminal defendant the right to a public trial. U.S. Const. amend. VI. Before a courtroom may be closed,

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984). One recognized "overriding interest" is protecting the well-being of a minor. Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 607, 102 S. Ct. 2613, 2620 (1982).

Before a district court may order the closure of a courtroom, the court must hold a hearing on the issue and must make findings that "articulate * * * the need for closure." State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995). Additionally, the district court must give the prosecutor, defense counsel, and members of the public the "opportunity to object to the closure." Minn. Stat. § 631.045 (1998). If such a hearing is not held, "the appropriate initial remedy * * * is a remand for an evidentiary hearing, not retrial." State v. Biebinger, 585 N.W.2d 384, 385 (Minn. 1998). 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 lawful, the defendant is entitled to a new trial. Id.

Here, the district court neither held a hearing nor issued findings on the record. The state concedes that the current record does not support the courtroom closure. Under these circumstances, the relevant decisions unequivocally require that the matter be remanded for an evidentiary hearing. If, as Doll alleges, closure cannot be justified, that fact will be established at the evidentiary hearing.

2. Patterned Sex Offender Sentence

Doll also challenges the district court's imposition of sentence under the patterned sex offender statute, Minn. Stat. § 609.1352 (1996) (repealed by 1998 Minn. Laws ch. 367, art. 6, § 16 and recodified at Minn. Stat. § 609.108 (1998). A sentence imposed under the patterned sex offender statute is a departure from the sentencing guidelines. Minn. Stat. § 609.1352, subd. 4. A departure from the guidelines will not be reversed absent a clear abuse of discretion. State v. Butterfield, 555 N.W.2d 526, 531 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).

Whenever a defendant is convicted under section 609.342, the district court shall consider sentencing him as a patterned sex offender. Minn. Stat. § 609.1352, subd. 1(b). In cases where the district court imposes a departure based on the patterned sex offender statute, it is sufficient for the district court to state on the record each of the required findings. State v. Bale, 493 N.W.2d 123, 125 (Minn. App. 1992), review denied (Minn. Jan 28, 1993). Before sentencing under Minn. Stat. § 609.1352, the district court must find that the defendant "is a danger to public safety" and "needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release." Minn. Stat. § 609.1352, subd. 1(a).[1]

Doll contends that the district court's findings are insufficient. We disagree. Minn. Stat. § 609.1352, subd. 3, states:

The court shall base its finding that the offender is a danger to public safety on any of the following factors:

(1) the crime involved an aggravating factor that would justify a durational departure from the presumptive sentence under the sentencing guidelines;

(2) the offender previously committed or attempted to commit a predatory crime or a violation of section 609.224 or 609.2242, including:

(i) an offense committed as a juvenile that would have been a predatory crime or a violation of section 609.224 or 609.2242 if committed by an adult[.]

In support of its finding that Doll is a danger to public safety, the district court cited Doll's juvenile adjudication for first degree witness tampering. That juvenile adjudication "would have been a predatory crime * * * if committed by an adult" and is sufficient to justify a finding that Doll presents a danger to public safety under Minn. Stat. § 609.1352, subd. 3(2)(i). Despite Doll's claim to the contrary, the statutory language is clear and does not require the district court to find that the offender was motivated by sexual impulse to commit a predatory crime before finding that the offender is a threat to public safety under Minn. Stat. § 609.1352, subd. 3. See Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn. 1986) (if the statute is free from ambiguity, this court will examine only its plain language).

The district court also correctly determined that Doll's offense involved an aggravating factor that would justify a durational departure under the sentencing guidelines, and, therefore, a finding that Doll is a threat to public safety. Minn. Stat. § 609.1352, subd. 3(1). Specifically, A.L. was vulnerable and unable to leave at the time of the offense because she was caring for a two-year-old child. A child's presence in a nearby room may incapacitate the caretaker and increase the caretaker's vulnerability. State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989). We conclude that the district court did not abuse its discretion in finding that Doll constituted a threat to public safety.

Before sentencing a defendant under the patterned sex offender statute, a district court must find "that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release." Minn. Stat. § 609.1352, subd. 1(a)(3). At the sentencing hearing, the district court stated that, "Based on the testimony and report of Dr. Ascano, the Court is satisfied that the defendant does need long-term treatment or supervision." Thus, the district court correctly based its finding that Doll met the statutory definition of a patterned sex offender on a "professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender." Id.

Additionally, Dr. Ascano's evaluation satisfied the statutory requirements. Specifically, Dr. Ascano referred to Doll's offense history, including an incident during which Doll engaged in criminal sexual conduct with an eight-month-old infant. Dr. Ascano also noted Doll's social history and his family history. Finally, Dr. Ascano noted the "results of an examination of [Doll's] mental status." Minn. Stat. § 609.1352, subd. 1(a)(3). According to the test results cited in the report, Doll "has profound apprehension and fearful mistrust of others," he "tends to utilize aggression as a mode of coping with his psychological conflict or perceived threats," and he has "[s]ubaverage intellectual functioning." Based on these and other factors, Dr. Ascano concluded that Doll has a "[p]oor prognosis for rehabilitation" and "psychological intervention."

The record supports a finding that the statutory requirements have been met. But Doll claims that Dr. Ascano's conclusion is not supported by his findings. Specifically, with regard to Dr. Ascano's finding that Doll's extensive sexual and non-sexual criminal history indicates a high risk of recidivism, Doll cites a published study for the proposition that a significant juvenile criminal history is not a reliable predictor of future sex offenses. This study was never presented to Dr. Ascano or the district court, however, and it is not part of the record on appeal. Minn. R. App. P. 110.01.

Additionally, Doll challenges Dr. Ascano's consideration of Doll's low I.Q. in his evaluation of Doll's amenability to treatment. According to Doll, the consideration of such a factor is a violation of equal protection. Essentially, Doll argues that in its determination of an offender's need for long-term treatment, a district court may not consider a factor such as the offender's I.Q. that undoubtedly affects the need for treatment. But such a restriction would be incongruous with the statutory language. Moreover, assuming without deciding that this challenge has merit, there is sufficient evidence in the record to support a finding that Doll needs long-term treatment, even without considering his I.Q.

The district court obviously found Dr. Ascano to be credible; that finding is entitled to deference from this court. Accordingly, we conclude that the district court did not abuse its discretion in determining that Doll requires long-term treatment or supervision.

Affirmed in part, reversed in part, and remanded.

[1] Doll concedes that his "crime was motivated by [his] sexual impulses." Minn. Stat. § 609.1352, subd. 1(a).