Todd Scott Webb, Clay County Attorney, Lisa N. Borgen, Assistant County Attorney, Clay County Courthouse, Box 280, Moorhead, MN 56561 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Norton, Judge.

Leo Leonard Morin, Jr. challenges his conviction for criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (1992) based on (1) admission of Spreigl evidence, (2) violation of his Sixth Amendment right to a public trial, and (3) denial of his motion to admit evidence of victim's prior sexual abuse allegations against four other individuals. We affirm.

After an investigation by the authorities, appellant was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a) (1992). After the authorities spoke to the victim again, the complaint was amended to add a count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (1992).

Prior to trial, respondent made a motion to have the courtroom closed for the victim's testimony. Appellant opposed the motion and made his own motion to determine the admissibility of any Spreigl evidence. Appellant was charged with a total of five separate complaints alleging criminal sexual conduct in the second degree against five juvenile females, including the victim in this case. The first of those complaints ended in a judgment of acquittal.

After hearing most of respondent's case-in-chief and considering an offer of proof, the trial court ruled that Spreigl evidence would be admitted. The trial court also reviewed videotaped interviews of the victim and Spreigl witnesses. Based on the videotaped interviews, ages of the witnesses, and psychological records, the trial court ordered the courtroom closed during testimony of the victim and Spreigl witnesses.

Appellant was acquitted of criminal sexual conduct in the first degree and convicted of criminal sexual conduct in the second degree. Appellant entered a plea agreement to the remaining three complaints and was sentenced to 146 months in prison. This appeal followed.

The trial court's decision to admit Spreigl evidence will not be reversed on appeal absent a clear abuse of discretion. State v. Drieman, 457 N.W.2d 703, 709 (Minn. 1990). Under Minn. R. Evid. 404(b)

[E]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, [or] plan.

Spreigl evidence relevant under rule 404(b) is not admissible unless: the state gives notice of its intent to introduce the evidence; specifies at the time the evidence is introduced the evidentiary exception under which it seeks to admit the evidence; the evidence is necessary to the state's burden of proof; the evidence of the prior bad acts is clear and convincing; and the court gives appropriate jury instructions as to the purpose of the evidence. State v. Hannuksela, 452 N.W.2d 668, 678 (Minn. 1990). In addition, the probative value of the evidence must outweigh the potential for unfair prejudice. State v. Robinson, 427 N.W.2d 217, 227 (Minn. 1988).

The three Spreigl witnesses testified about incidents involving appellant. All three incidents occurred in appellant's home when the children were alone with appellant. The victims were young, vulnerable girls, who were friends of appellant's children, and all three incidents involved inappropriate contact with the victims. The incidents were relevant to show a common scheme or plan on appellant's part.

Evidence of prior sexual misconduct in cases involving sex crimes against minors is admissible as Spreigl evidence showing a common scheme or plan. State v. Spencer, 366 N.W.2d 656, 660 (Minn. App. 1985) review denied (Minn. July 11, 1985).

Though no formal Spreigl notice was given to appellant, he was well aware of respondent's intent to offer Spreigl evidence, if necessary, by the motions made and heard at the pretrial hearings on July 16, and August 6. Further, appellant was formally charged in February 1998 with five separate complaints of criminal sexual conduct in the second degree against five separate juveniles. It is apparent that appellant should be aware each charge could be used as Spreigl evidence in the other matters. Also, on May 20, 1998, appellant made his own motion to determine all Spreigl issues before opening statements in the trial. Therefore, the fact no formal Spreigl notice was given did not result in prejudice to appellant. Further, the lack of formal notice by respondent did not result in appellant being forced to defend unexpected testimony. By his own actions, appellant was aware of the potential Spreigl evidence.

We are not prepared to establish any requirement that the state call the [Spreigl] witnesses to testify at the hearing to determine the admissibility of the [Spreigl] evidence. The trial court has broad discretion in determining whether or not to require this in a particular case and defendant is always free to challenge the exercise of that discretion on post-trial appeal.

State v. Kennedy, 585 N.W.2d 385, 390 (Minn. 1998) (quoting State v. Lindahl, 309 N.W.2d 763, 766 (Minn. 1981). The court in Kennedy also determined that no corroboration of a victim's testimony is necessary to meet the clear-and-convincing standard since the testimony of a sexual assault victim alone is sufficient to convict defendant at trial under the standard of proof beyond a reasonable doubt. Id. at 389.

The trial court also gave the appropriate instructions to the jury before each Spreigl witness testified and had an appropriate instruction approved by appellant read to the jury after the trial was concluded and prior to deliberations. Therefore, appellant's various arguments against admission of the Spreigl evidence do not stand and the trial court did not abuse its discretion in admitting the Spreigl evidence.

2. Sixth Amendment

The appropriate remedy if the reviewing court determines that the necessity to close the courtroom was not adequately shown is to remand for an evidentiary hearing rather than a new trial. State v. Fageroos, 531 N.W.2d 199, 203 (Minn. 1995).

An appellant's "denial of the Sixth Amendment right to a public trial is not subject to harmless error impact analysis." State v. McRae, 494 N.W.2d 252, 260 (Minn. 1992) (citations omitted).

Minn. Stat. § 631.045 (1996) provides:

At the trial of a complaint or indictment for a violation of sections 609.341 to 609.346, or 617.246, subdivision 2, 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 give the prosecutor, defendant, and members of the public the opportunity to object to the closure before a closure order. The judge shall specify the reasons for closure in an order closing all or part of the trial. Upon closure the judge shall only admit persons who have a direct interest in the case.

The question of whether closure is proper is ultimately a constitutional issue, not a statutory issue. "Both United States Const. Amend. VI and Minn. Const. art. I, 6, provide that `[i]n all criminal prosecutions the accused shall enjoy the right to a * * * public trial * * * .'" Fageroos, 531 N.W.2d at 201. However, the right to a public trial is not absolute. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 2620 (1982).

[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.

Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984). Waller stated the appropriate standard for determining whether closure of the courtroom was justified.

[T]he 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.

Id. at 467 U.S. 48, 104 S. Ct. 2216. (citations omitted).

Globe Newspaper Co. recognized that one overriding interest is safeguarding the physical and psychological well being of a minor. 457 U.S. at 607, 102 S. Ct. at 2620. While the protection of the minor's physical and mental health is an interest, it is not automatic and the trial court must make a decision on a case-by-case basis. Fageroos, 531 N.W.2d at 202. The factors to be considered by the trial court include "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. (citing Globe Newspaper Co., 457 U.S. at 608, 102 S. Ct. at 2621). Pursuant to Fageroos, the trial court must articulate its findings supporting its order for closure with specificity and detail.

Respondent moved to have the courtroom closed during the testimony of the victim. The trial court allowed appellant to object and state his arguments in opposition to the motion. The trial court also reviewed the victim's and Spreigl witnesses' school and psychological records, the videotaped interviews, and comments from the victims, the Spreigl witnesses and their families. After reviewing that information and the arguments of the parties, the district court issued its findings and order. The trial court determined the courtroom would be closed during the victim's and three Spreigl witnesses' testimony due to their age and in order to safeguard their mental and physical well being. The trial court considered other reasonable alternatives, but no other less restrictive means would be appropriate to protect the minor's physical and mental well being. Appellant had objected to using closed circuit television as a less restrictive alternative. The trial court also found the minor's well being was an overriding interest to appellant's Sixth Amendment right to a public trial.

Therefore, the trial court made the requisite findings and held the appropriate hearing and the closure of the courtroom was proper.

3. Prior allegations of sexual abuse

In Minnesota, the appellate courts defer to the trial court's discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling absent a clear abuse of that discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). If exclusion of evidence did violate appellant's right to present a defense, the appellate court will not reverse the decision if the error is found to be harmless beyond a reasonable doubt. Id. The ruling is prejudicial and subject to reversal if there is a reasonable possibility the error may have contributed to the conviction. Id.

Appellant contends the allegation against him by the victim was fabricated. Appellant argues he was not allowed to present a defense because allegations of abuse made by the victim against four other individuals were not allowed as evidence. Appellant cited State v. Kobow, 466 N.W.2d 747 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991), at the motion hearing for the allowance of evidence of sexual abuse against a victim by others as a means of proving a motive of fabrication. However, Kobow holds that only prior false reports of abuse are admissible. Id. at 751; State v. Gerring, 378 N.W.2d 94, 96-97 (Minn. App. 1985).

In this case, appellant has not shown that any of the allegations of abuse made by the victim against the other individuals are false. On the contrary, one of the individuals was found guilty and is currently serving prison time for the incident. Appellant presents no evidence showing the other allegations were false. Therefore, the trial court did not abuse its discretion in excluding this evidence and its exclusion did not contribute to appellant's conviction.

Affirmed.

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