State of Minnesota, Respondent, vs. Larry Curtis Biebinger, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-439

State of Minnesota,
Respondent,
 
vs.
 
Larry Curtis Biebinger,
Appellant.

 

Filed December 14, 1999
Affirmed.
Crippen, Judge

Dodge County District Court
File No. K496527

Mike Hatch, Minnesota Attorney General, 525 Park Street, St. Paul, MN 55103; and

Paul Kiltinen, Dodge County Attorney, Gary ReMine, Assistant County Attorney, Dodge County Courthouse, P.O. Box 295, 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 Crippen, Presiding Judge, Short, Judge, and Mulally, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN,

Judge

Following a trial court decision to close the courtroom during the testimony of a 15-year-old child, this court reversed appellant's conviction and ordered a new trial. Although the closure was subsequently reviewed and justified by findings of the trial court on a remand ordered by the Minnesota Supreme Court, appellant questions these findings because the state offered no new evidence for closure and the court acted on the record that this court had earlier found to be inadequate to justify closure. Appellant contends that this court determined the law of the case on the initial record when we observed that the state had neither shown a need for closure to protect the witness nor the existence of evidence it might produce to show that need. The prior decision of this court having been reversed and appellant having withheld any contention that the findings are inadequate for their purpose or that the evidence is insufficient to permit these findings, we affirm.

 

FACTS

Appellant's 15-year-old daughter was a critical witness for the prosecution that brought about his conviction on six counts of criminal sexual conduct. Without objection from appellant, the courtroom was closed for purposes of taking the testimony of this witness. In November 1997, Biebinger appealed his convictions, contending, inter alia, that the process of closure during the testimony of his daughter constituted a denial of his constitutional right to a public trial.

When this court decided the appeal in September 1998, it agreed with appellant's conclusion that the closure decision, for which the trial court had not made findings, was erroneous. The court observed that the testimony of the child's therapist "fell short of the requirement of evidence that closure is necessary" to protect the witness (emphasis in original). Because the court observed that "the state had no evidence that closure was necessary," the court declined to remand for review of this issue and ordered a new trial. Subsequently, in October 1998, the supreme court reversed and remanded to the district court for an evidentiary hearing.

On remand, although the state declined to offer further evidence, the trial court found closure had been necessary for protection of the witness, finding more particularly that the child suffered from post-traumatic stress disorder as a result of sexual abuse and that there was a resulting risk that she would "become psychologically unable to recall and relate the abuse scenario." Pertinent to these findings, the record shows that the child's therapist made the diagnosis noted by the trial court and observed that the child experienced symptoms of "hypervigilance, intrusive recall, avoidance behaviors, and psychic numbing," that the child was "terrified of seeing her father;" that she continued to experience "detachment and estrangement from others, restricted range of affect, a sense of a foreshortened future;" and that she demonstrated "symptoms of intrusive recall in the forms of flashbacks and nightmares." The therapist witness observed that the blocking of memory might be a symptom of further stress of the child and that further stress might also increase her isolation and depression.

 

D E C I S I O N

1. Courtroom Closure

The trial court may order the courtroom closed during a criminal trial if there is an overriding interest supporting closure 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 the court orders the closure of a courtroom, it must hold a hearing on the issue and must make findings that "articulate * * * the need for closure." Id. at 202; see also State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992). Additionally, the court must give the prosecutor, defendant, and members of the public the "opportunity to object to the closure." Minn. Stat. § 631.045 (1998).

In this case, appellant does not dispute the adequacy of the trial court's findings supporting closure nor the fact that there is evidence that normally might be found sufficient to support those findings. Rather, appellant suggests that the issuance of those findings was precluded by the language in the earlier opinion of this court. This proposition has no merit because the decision of this court was reversed in total by the supreme court and does not constitute the law of this case. See, e.g., In re Hallbom's Estate, 189 Minn. 383, 386, 249 N.W. 417, 418 (1933).

In his argument, appellant criticizes the decision of the state to rest on the record on the occasion when the evidentiary hearing was scheduled before the trial court on remand. As appellant observes, Fageroos also arose under circumstances where the trial court initially had made no findings, and the supreme court required that the issue be remanded to the trial court for an "evidentiary hearing," explaining that this would give the state an opportunity to articulate the need for closure. Fageroos, 531 N.W.2d at 203. We neither criticize nor condone the state's strategy in this case, the issue being beside the point. Even without additional evidence, the trial court made findings, supported by the evidence in the record, that justify closure.

2. Multiple Convictions

The trial court sentenced appellant for three of the six counts: 116 months in prison for second-degree criminal sexual conduct, a consecutive 86 months for attempted criminal sexual conduct, and a consecutive 172 months for first-degree criminal sexual conduct. All of the accusations were alleged in terms of conduct occurring between August 1, 1996 and September 25, 1996, and appellant contends, as he did in his initial appeal, that the three convictions cannot stand because the jury may have found that they arose out of the same behavioral incident. As this court initially reversed on other grounds, it did not address this issue.

As appellant acknowledges, the evidence of his crimes was offered in respect to several specific incidents that occurred over the course of a several-week span mentioned in the complaint. The record furnishes no basis for the conclusion that the three convictions for which appellant was sentenced arose out of the same incident.

Although the jury instructions and verdict forms, which were not the subject of objection by appellant during trial, might have more particularly identified the incidents in question, this is not a case where the meaning of the verdict is in doubt. Compare State v. Cromey, 348 N.W.2d 759, 760-61 (Minn. 1984) (verdict considered to be for lesser offense where record left uncertain whether a general guilty verdict was for that offense or a more serious accusation).

 

Affirmed.

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