This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-539

 

State of Minnesota,
Respondent,

vs.

Truman LuRoy Campbell,
Appellant.

 

Filed April 17, 2007

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Ramsey County District Court

File No. K0-05-566

 

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

            Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court violated his constitutional right to a public trial when it closed the courtroom during the victim’s testimony.  Appellant also challenges his sentence, arguing that the district court erred by (1) permitting the jury to determine whether aggravating factors were present without authorization under the Minnesota Sentencing Guidelines to do so, and (2) imposing an upward durational departure from the presumptive guidelines sentence based on the jury’s findings that appellant committed multiple acts of sexual abuse and multiple forms of sexual penetration.  We affirm in part, reverse in part, and remand.

FACTS

            Based on events that occurred on December 4, 2004, respondent State of Minnesota charged appellant Truman Campbell with one count of first-degree criminal sexual conduct, a violation of Minn. Stat. § 609.342, subd. 1(a) (2004) (sexual penetration of a complainant younger than 13 years old by a person more than 36 months older than the complainant).  The complaint alleged that Campbell sexually penetrated D.A.P., the ten-year-old son of Campbell’s girlfriend.

            At trial, the state moved to close the courtroom during D.A.P.’s testimony, arguing that closure was necessary to protect D.A.P.’s well-being.  Campbell’s counsel advised the district court, “[Campbell is] okay with closing the courtroom.”  The district court found that closing the courtroom during D.A.P.’s testimony was necessary to protect D.A.P.’s psychological well-being, and closure in this manner was no broader than necessary to do so.

            After the jury returned a guilty verdict, the district court submitted a special‑verdict form to the jury for its determination of two fact issues: whether Campbell committed multiple acts of sexual abuse and whether Campbell committed multiple forms of penetration against D.A.P.  The jury answered both questions in the affirmative.  Based on the jury’s findings regarding these aggravating factors, the district court imposed a sentence of 216 months’ imprisonment, an upward durational departure from the presumptive sentence under the Minnesota Sentencing Guidelines.  This appeal followed.

D E C I S I O N

I.

Campbell challenges his conviction, arguing that the district court committed reversible error when it closed the courtroom during D.A.P.’s testimony.  But Campbell did not object to this limited closure before the district court.  Rather, he agreed to it through his attorney.  By failing to object, Campbell waived his right to challenge on appeal the district court’s ruling.  See State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000) (holding that appellant’s failure to object to closure and agreement with limited courtroom closure forfeited any error resulting from absence of district court findings supporting closure), review denied (Minn. Mar. 28, 2000).  Notwithstanding this waiver, our review establishes that Campbell’s challenge fails on its merits.

Under Minnesota law,

[a]t the trial . . . 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.

 

Minn. Stat. § 631.045 (2004).  Section 631.045 requires the judge to give the defendant, the prosecutor, and the public an opportunity to object to closure of the courtroom before entry of the order.  And the judge must specify in the order the reasons for closing the courtroom.  Id.  Although courtroom closure under certain circumstances is authorized by statute, “whether closure is proper is ultimately a constitutional issue, not a statutory issue.”  State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995).  Thus, we review de novo the district court’s decision to do so.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).

The United States and Minnesota constitutions guarantee a criminal defendant the right to a public trial.  U.S. Const. amend. VI; Minn. Const. art. I, § 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 district court may restrict attendance as necessary to preserve order and protect rights of parties and witnesses).  The decision to close the courtroom is justified when an overriding interest exists in support of closure, the closure is no broader than necessary to protect that interest, and the findings of the district court are adequate to support the decision.  Waller, 467 U.S. at 48, 104 S. Ct. at 2216; Fageroos, 531 N.W.2d at 201. 

Safeguarding the physical and psychological well-being of a minor victim of sexual assault is an overriding interest that may justify a limited closure of the courtroom.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607-09, 102 S. Ct. 2613, 2620-21 (1982).  But the presentation of testimony by a sex-abuse victim who is a minor does not per se justify courtroom closure; rather, the district court must determine on a case-by-case basis whether particular circumstances exist that warrant closure.  Fageroos, 531 N.W.2d at 202.  Among the factors to be considered by the district court when 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.’”  Id. (quoting Globe Newspaper, 457 U.S. at 608, 102 S. Ct. at 2621).

            Campbell maintains that the district court’s reason for closing the courtroom—to protect D.A.P.’s psychological well-being—was not weighty enough to override Campbell’s right to a public trial.  To the contrary, this is precisely the type of overriding interest that courts have recognized as a justification for courtroom closure.  Globe Newspaper, 457 U.S. at 607-09, 102 S. Ct. at 2620-21; Fageroos, 531 N.W.2d at 202.  The district court did not rely solely on D.A.P.’s age or the nature of the offense.  Rather, the district court employed the type of case-specific analysis cited with approval in Fageroos to reach its conclusion that closure was necessary to protect D.A.P.’s psychological well-being. 

            After viewing a videotape of D.A.P.’s one-on-one interview with a doctor, the district court found that, although D.A.P. was able to recount the sexual abuse, he was “reticent” in doing so.  The district court also found that D.A.P.’s “very significant relationship” with Campbell and his embarrassment made it particularly difficult for D.A.P. to testify.[1]  The district court’s findings demonstrate that Campbell is not entitled to relief on this ground.  The district court properly considered the need to protect D.A.P.’s psychological well-being by closing the courtroom during his testimony and did not err by concluding that, under the circumstances presented, this need overrode Campbell’s interest in a public trial. 

            Campbell also argues that the district court’s reliance on his counsel’s consent to close the courtroom was erroneous because a defendant must personally waive the constitutional right to a public trial.  This argument is without merit.  The Minnesota Supreme Court held in State v. Weigold that, because closure of the courtroom is a procedural matter over which a defendant’s counsel has implied authority to speak on the defendant’s behalf, a district court need not obtain a defendant’s personal waiver.  281 Minn. 73, 76, 160 N.W.2d 577, 580 (Minn. 1968).  Moreover, a waiver is unnecessary when, as here, the district court concludes after a careful analysis of the relevant facts that closure is necessary to protect the child witness.  Fageroos, 531 N.W.2d at 202.  Thus, Campbell’s challenge to his conviction fails.

II.

            In support of his challenge to the duration of his sentence, Campbell argues that the district court erred by (1) permitting the jury to determine whether aggravating factors were present, and (2) imposing an upward durational departure from the presumptive guidelines sentence based on the jury’s findings that Campbell committed multiple acts of sexual abuse and multiple forms of sexual penetration.  We address each argument in turn.

A.

            Because the applicable version of the Minnesota Sentencing Guidelines does not authorize jury findings regarding aggravating factors, Campbell argues that the district court’s decision to submit the aggravating-factors question to the jury was without legal authority.  The 2004 version of the guidelines provides in pertinent part:

When [substantial and compelling] circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law. . . . When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.

 

Minn. Sent. Guidelines II.D (2004) (emphasis added).  Quoting State v. Shattuck, Campbell argues that this provision of the sentencing guidelines is unconstitutional “insofar as it allows the district court to impose an upward durational departure based on the [district] court’s own findings.”  704 N.W.2d 131, 144 (Minn. 2005). 

            A similar argument was rejected in a recent decision of the Minnesota Supreme Court, Hankerson v. State, 723 N.W.2d 232 (Minn. 2006), which was released after Campbell submitted his brief.  The Hankerson court reasoned that “[n]othing in the [2004 version] of Minn. Sent. Guidelines II.D prohibits a court from imposing a sentence based on facts found by a jury.”  Id. at 236.  Therefore, when Minn. Sent. Guidelines II.D (2004) is read together with Minn. Stat. § 244.10, subd. 5(a) (Supp. 2005),[2] which permits the state to prove to a jury aggravating factors in support of the state’s motion for an upward departure from the sentencing guidelines, a jury can make findings on which the district court may rely to impose an aggravated sentence.  Hankerson, 723 N.W.2d at 236.  Accordingly, Campbell’s argument that the district court lacked the authority to submit the aggravating-factors issue to a jury is unavailing.

B.

            We next consider whether, in light of the offense of conviction, these findings can support an aggravated sentence.  We review a district court’s decision to depart from the presumptive guidelines sentence for an abuse of discretion.  Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003).  Reversal is warranted only if the reasons for the departure are improper or inadequate and there is insufficient record evidence to justify an aggravated sentence for the offense of which the defendant was convicted.  Id.

To justify an upward departure, the district court must rely on evidence that the defendant committed the offense in a particularly serious way.  Id.  Because a defendant may not be sentenced for a crime other than the crime of conviction, a district court may rely only on the egregious conduct underlying that offense.  Id. In Taylor, the state charged the defendant with one count of first-degree criminal sexual conduct, alleging that the defendant committed a single incident of criminal sexual conduct on March 16, 2001.  Id. at 585.  During the factual-basis inquiry in support of the defendant’s guilty plea, the defendant admitted that, on a different date, he had engaged in the same conduct for which he was pleading guilty.  Id. at 585-86.  The district court departed from the presumptive guidelines sentence, citing multiple incidents of sexual abuse to justify the departure decision.  Id. at 586.  The supreme court held that the district court’s reliance on the defendant’s admission was improper because that admission only supports defendant’s guilt of another uncharged offense.  Id. at 588-89. 

Here, as in Taylor, the state charged Campbell with one count of first-degree criminal sexual conduct.  The district court based its upward-departure decision on the jury’s findings that Campbell committed multiple acts of sexual abuse and multiple forms of sexual penetration with D.A.P.  These aggravating factors may properly serve as a basis for an upward departure only if they took place during the offense of which Campbell was convicted.  Id. at 588.  Although the complaint refers to a history of sexual abuse spanning several years, the charge alleged that “[o]n or about the 4th day of December, 2004, . . . [Campbell] . . . did wrongfully and unlawfully engage in penetration with another person under age 13 years . . . .”  Relying on D.A.P.’s statements, during an interview with Dr. Mark Hudson, that Campbell performed oral sex on D.A.P. on December 3, 2004, the state argues that the jury’s findings that Campbell committed multiple acts of sexual abuse and multiple forms of sexual penetration were based on the offense of which Campbell was found guilty.  This argument requires the December 3 conduct to be part of the charged offense.  See id. (holding that to justify an upward sentencing departure, district court must rely on evidence that shows that defendant committed the charged offense in a particular way).

For purposes of determining whether multiple sentences can be imposed, multiple incidents of criminal sexual conduct do not constitute a single offense unless they occur at substantially the same time and place, arise in a continuous and uninterrupted course of conduct, and manifest an indivisible state of mind.  State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989); see, e.g.,Bixby v. State, 344 N.W.2d 390, 391, 393 (Minn. 1984) (holding that two sexual contacts within approximately three-hour time period were part of single behavioral incident); State v. Herberg, 324 N.W.2d 346, 349 (Minn. 1982) (holding that acts occurring during one afternoon were part of single course of conduct because, although defendant drove victim a short distance, relocation was to avoid discovery); cf. State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984) (affirming sentencing of defendant convicted of three counts of second-degree criminal sexual conduct for three contacts over a weekend period); State v. Stevenson, 286 N.W.2d 719, 720 (Minn. 1979) (affirming sentence of defendant convicted of two counts of third-degree criminal sexual conduct for contacts in same general place approximately five hours apart when “neither [contact] bore any essential relationship to the other”).  While not directly applicable to the issue before us, this analysis is useful by analogy, to determine whether the December 3 incident is part of the charged offense.

Campbell committed the December 3 incident of criminal sexual conduct on the night before the charged offense.  Between the two incidents, Campbell, D.A.P., and D.A.P.’s family went Christmas shopping, returned home, and ate dinner together.  The incidents of sexual penetration on December 3 and December 4 did not arise out of a continuous and uninterrupted course of conduct.  As such, they do not constitute a single offense.  Therefore, the December 3 incident cannot justify the upward departure based on multiple acts or forms of penetration.  See Taylor, 670 N.W.2d at 588 (holding that district court may not rely on evidence that defendant is guilty of a different offense to justify an upward departure). 

Because the questions on the special-verdict form did not refer to a date and the jury heard evidence that Campbell sexually abused D.A.P. on numerous occasions before December 2004, perhaps the jury relied on incidents other than the one on December 3 to find that Campbell committed multiple acts of sexual abuse and multiple forms of sexual penetration.  But these incidents are even more remote in time and, therefore, cannot constitute a continuous and uninterrupted course of conduct.  Because only a single act of sexual abuse with one form of penetration occurred on December 4, the date of the charged offense, the district court erred when it departed upward from the presumptive guidelines sentence.  We, therefore, reverse Campbell’s sentence and remand to the district court for imposition of the presumptive guidelines sentence.

            Affirmed in part, reversed in part, and remanded.