This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Scott Leonard Fennern,


Filed April 13, 1999

Affirmed in part and remanded

Short, Judge

Redwood County District Court

File No. K197725

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)

John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Holtan, Judge.[*]


SHORT, Judge

A jury convicted Scott Leonard Fennern for attempted criminal sexual conduct in the first degree in violation of Minn. Stat. §§ 609.17, subd. 1, .342, subd. 1(a) (1996). On appeal, Fennern argues: (1) the trial court violated his constitutional right to a public trial by closing the courtroom during the minor complainant's testimony without making the necessary findings; and (2) he was denied his right to a fair trial by police officer testimony about a statement he made when he was arrested. We affirm in part, and remand for an evidentiary hearing.



Both the United States Constitution and the Minnesota Constitution guarantee the right to a public criminal trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But the right to a public criminal trial is not absolute, and may properly be set aside when necessary to meet other compelling interests, such as "safeguarding the physical and psychological well-being of a minor [victim of a sex crime]." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S. Ct. 2613, 2620 (1982); State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992) (applying Globe Newspaper standard to Sixth Amendment right of public trial).

Minnesota law allows the trial court to exclude spectators from the courtroom where a minor is involved in a criminal sexual conduct trial. Minn. Stat. § 631.045 (1998). Although protection of a minor victim is a compelling interest, it does not justify closure every time a minor testifies. State v. Fageroos, 531 N.W.2d 199, 202 (Minn. 1995). Before closure is appropriate, a trial court must consider reasonable alternatives to closing the proceeding, and articulate detailed findings supporting the need for closure. Id. at 201-02 (citing Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984)).

Both parties agree the record does not contain adequate findings to support the closure during the minor complainant's testimony. Fennern argues the proper remedy is a new trial. We disagree. The proper remedy where there are insufficient findings of fact to support closure of the courtroom is a remand for an evidentiary hearing. State v. Biebinger, 585 N.W.2d 384, 385 (Minn. 1998) (remanding criminal sexual conduct case for evidentiary hearing where trial court closed courtroom during minor victim's testimony without adequate findings); Fageroos, 531 N.W.2d at 203 (holding findings were insufficient to support closure of courtroom during minor victim's testimony and remanding for evidentiary hearing). Therefore, we remand to the trial court for an evidentiary hearing on the necessity of closure during the minor complainant's testimony.


The decision to grant a new trial due to misconduct rests within the discretion of the trial judge, who is in the best position to appraise its effect. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The determination only will be reversed where the misconduct was inexcusable and so prejudicial that the right to a fair trial was denied. Id.

Fennern argues he was denied his right to a fair trial where a police officer, under direct questioning by the prosecutor, testified to a statement that both parties agreed would be kept out at trial. We disagree. The record shows: (1) although Fennern moved for a mistrial after the testimony, he did not object while the officer testified or request a curative instruction from the court; (2) the prosecutor did not intentionally elicit the information; (3) the evidence of Fennern's guilt was strong due to the corroborative testimony of the minor's mother and her boyfriend; and (4) the officer's testimony that Fennern asked him, at the time of arrest, what degree of criminal sexual conduct he was being charged with, was neutral and was not in itself an admission of guilt. Under these circumstances, any error did not materially affect Fennern's substantial rights and the trial court did not abuse its discretion in denying Fennern a new trial. See State v. Bonner, 275 Minn. 280, 288, 146 N.W.2d 770, 776 (1966) (concluding detective's testimony was not prejudicial enough to warrant new trial); State v. Wofford, 262 Minn. 112, 120, 114 N.W.2d 267, 272 (1962) (holding where there is evidence to support verdict, it should not be disturbed if error does not materially affect substantial rights of accused).

Affirmed in part and remanded.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.