#27125-a-SLZ

2015 S.D. 15

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA


                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

FREDERICK BLAIR SLOTA,                      Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                    BROWN COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE TONY L. PORTRA
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


ELLERY GREY of
Grey Law, Prof. LLC
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON FEBRUARY 17, 2015

                                            OPINION FILED 03/18/15
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ZINTER, Justice

[¶1.]        Fredrick Slota was tried on charges of first-degree rape and sexual

contact involving a child. The trial judge, on his own initiative, and without a pre-

closure hearing, closed the courtroom during the victim’s testimony. Slota was

convicted, and after trial the State moved to supplement the record with the

reasons for the closure. The circuit court held a hearing and entered findings of fact

and conclusions of law supporting closure. Slota appeals, arguing that his Sixth

Amendment right to a public trial was violated; that the only appropriate remedy is

a new trial; and, that if a new trial is not the only appropriate remedy, the State

failed to present sufficient justification for the closure. We affirm.

                             Facts and Procedural History

[¶2.]        Slota was tried on charges of first-degree rape and sexual contact with

a child under the age of sixteen. The victim, A.L., was seven years old at the time of

the incident and eight years old at the time of trial.

[¶3.]        Before the trial started, the judge informed a newspaper reporter that

he intended to close the courtroom during A.L.’s testimony. No motion was made by

the State or Slota requesting the closure. Before A.L. testified, the judge

announced: “The record should reflect that the courtroom has been cleared at this

time.” The judge did not hold a hearing, hear argument, or enter findings regarding

the closure. The only people left in the courtroom after closure were the jury, one of

A.L.’s adoptive parents, an expert witness, Slota, his counsel, and court staff. The

closure was approximately ten to fifteen minutes in length. The public was allowed

to be present for the rest of the trial. This included the presentation of a thirty-


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eight minute forensic interview of A.L., which was a more detailed account of the

events than A.L.’s trial testimony. The jury found Slota guilty of both charges.

[¶4.]        After trial, the State moved to supplement the record with facts and

reasons for the closure, and Slota moved for a new trial based on the closure. The

court acknowledged that “a mistake was made and a further record should have

been made regarding [the courtroom closure] issue.” The court granted the State’s

motion to supplement the record and denied Slota’s motion for a new trial.

[¶5.]        Following a post-trial hearing, the court addressed the “Waller factors.”

See Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31 (1984).

The court first described the interest that would be prejudiced if the proceeding was

not closed. The court found that A.L. was seven at the time of the crime, eight at

the time of her testimony, and the crime involved first-degree rape. The court also

found that A.L. was developmentally delayed, she was on an Individualized

Education Plan (IEP), she had hearing loss, she had been subjected to prior physical

abuse, she had been removed from her home on numerous occasions until her

biological parents’ rights were terminated, and she lacked maturity. The court

further found that A.L.’s adoptive family expressed their desire that A.L. not be

exposed to any more trauma through testimony at a public hearing.

[¶6.]        The court then found that the closure was no broader than necessary

to protect the foregoing interests. The court noted that the trial was closed only for

A.L.’s testimony, which was ten to fifteen minutes in length and comprised only

thirty-five of 491 pages of trial transcript. Further, the public and the media were

allowed to hear A.L.’s forensic interview, which was thirty-eight minutes in length


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and contained more detail about the events than her testimony at trial. The judge

noted that he approached the press sua sponte because he wanted the media to have

an opportunity to be heard if they wanted to watch A.L.’s testimony. The reporter

did not subsequently request courtroom access.

[¶7.]         The court finally made findings regarding alternatives to closure. The

court noted that the only option that would not adversely affect Slota’s

constitutional rights was having A.L.’s testimony shown on closed circuit television

in another room. This option, however, was not possible because the necessary

technology was unavailable in that courthouse. The court ultimately indicated that

its decision was not made on any individual factor. The closure was based on all the

facts and circumstances.

[¶8.]         Slota now appeals, 1 arguing that his Sixth Amendment right to a

public trial was violated; and that because the circuit court failed to address the

Waller factors before the closure, the only remedy is a new trial. In the alternative,

Slota argues that the State did not present sufficient justification for the closure.

                                         Decision

[¶9.]         The Sixth Amendment to the United States Constitution provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed . . . .” U.S. Const. amend. VI. The right to a public trial is

also found in S.D. Const. art. VI, § 7. (“In all criminal prosecutions the accused

shall have the right to . . . a speedy public trial . . . .”). “In general, courts conduct


1.      Slota’s appellate counsel did not represent him at trial.

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public trials ‘for the benefit of the accused; that the public may see he is fairly dealt

with and not unjustly condemned, and that the presence of interested spectators

may keep his triers keenly alive to a sense of their responsibility and to the

importance of their functions.’” State v. Rolfe (Rolfe I), 2013 S.D. 2, ¶ 17, 825

N.W.2d 901, 906 (quoting Waller, 467 U.S. at 46, 104 S. Ct. at 2215). “[T]he public

has the right to be present whether or not any party has asserted the right.” Id.

(quoting Presley v. Georgia, 558 U.S. 209, 214, 130 S. Ct. 721, 724-25, 175 L. Ed. 2d

675 (2010)) (internal quotation marks omitted).

[¶10.]       The right, however, is not absolute. Id. ¶ 18 (citing Globe Newspaper

Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596, 606, 102 S. Ct. 2613, 2620, 73

L. Ed. 2d 248 (1982)). “‘The 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.’” Id. (quoting Presley, 558 U.S. at 213, 130 S. Ct. at 724).

[¶11.]       The Legislature has determined that a child victim testifying about

sexual abuse may be one case in which the right to a public trial may give way to

other interests. SDCL 23A-24-6 provides:

             Any portion of criminal proceedings, with the exception of grand
             jury proceedings, at which a minor is required to testify
             concerning rape of a child, sexual contact with a child, child
             abuse involving sexual abuse, or any other sexual offense
             involving a child may be closed to all persons except the parties’
             attorneys, the victim or witness assistant, the victim’s parents
             or guardian, and officers of the court and authorized
             representatives of the news media, unless the court, after proper
             hearing, determines that the minor’s testimony should be closed


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             to the news media or the victim’s parents or guardian in the best
             interest of the minor.

This statute gives the circuit court “discretion to determine who should remain in

the courtroom when a child testifies about a sexual offense.” Rolfe I, 2013 S.D. 2,

¶ 19, 825 N.W.2d at 906. Still, “the party seeking closure of the proceeding must (1)

advance an overriding interest that is likely to be prejudiced, (2) the closure must be

no broader than necessary to protect that interest, (3) the [circuit] court must

consider reasonable alternatives to closing the proceeding, and (4) the [circuit] court

must make findings adequate to support the closure.” Id. ¶ 20, 825 N.W.2d at 907

(quoting Waller, 467 U.S. at 48, 104 S. Ct. at 2216) (internal quotation marks

omitted). The court should address these requirements “before excluding the public

from any stage of a criminal trial[.]” Presley, 558 U.S. at 213, 130 S. Ct. at 724.

[¶12.]       “A violation of the right to a public trial is a ‘structural defect affecting

the framework within which the trial proceeds, rather than simply an error in the

trial process itself.’” Rolfe I, 2013 S.D. 2, ¶ 14, 825 N.W.2d at 905 (quoting Arizona

v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991)).

“‘Without these basic protections, a criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or innocence, and no criminal punishment

may be regarded as fundamentally fair.’” Id. (quoting Fulminante, 499 U.S. at 310,

111 S. Ct. at 1265). “We review the trial court’s ‘application of the law de novo, and

the ultimate decision to close a court proceeding for an abuse of discretion.’” Id.

¶ 15 (quoting Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388,

392).



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[¶13.]         In this case, the circuit court recognized that it had made a mistake by

not having a pre-closure hearing to determine whether the Waller factors justified

closure. 2 The initial question is whether that error requires a new trial.

[¶14.]         In Rolfe I the trial judge also closed the courtroom without addressing

the Waller factors. 2013 S.D. 2, ¶ 25, 825 N.W.2d at 909. We determined that a

new trial was not the appropriate remedy. We remanded for the circuit court to

“supplement the record with specific findings and reasons for the closure of the

courtroom[.]” Id. ¶ 26. Further, in Rolfe’s second appeal, after considering the

remand court’s findings justifying closure, we reiterated “that a remand to the trial

court in order to supplement the record was an appropriate remedy.” State v. Rolfe

(Rolfe II), 2014 S.D. 47, ¶ 12, 851 N.W.2d 897, 902.

[¶15.]         In this case, the circuit court recognized its error, conducted a closure

hearing, and entered Waller findings before the case was appealed. Despite our

rulings in Rolfe I and Rolfe II, Slota argues that the only proper remedy is a new

trial. Slota contends that a new trial is required based on a “plain reading” of

Waller v. Georgia and Presley v. Georgia. However, we considered those cases in



2.       We are troubled by what appears to be the circuit court’s ex parte
         arrangement with the media regarding closure. The media have a qualified
         right of access to criminal trials. Associated Press v. Bradshaw, 410 N.W.2d
         577, 578 (S.D. 1987), superseded by statute SDCL 26-7A-36, as stated in
         Rapid City Journal, 2011 S.D. 55, ¶ 18, 804 N.W.2d at 395. We have
         previously outlined the procedure that should be followed to ensure that the
         parties, the media, and the public have notice of intent to close a court
         proceeding. “Once a request for closure has been made, the [circuit] court
         must assure that the interests of all parties, including the . . . [m]edia, the
         State, and the court, are protected. All parties must be afforded notice and a
         hearing before the [circuit] court makes a determination on the closure
         issue.” Id. at 579.

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#27125

Rolfe I and Rolfe II. Indeed, Rolfe I cites Presley for authority. See Rolfe I, 2013

S.D. 2, ¶¶ 17-18, 825 N.W.2d at 906.

[¶16.]         Slota alternatively suggests that this case presents an opportunity to

reconsider Rolfe I and Rolfe II. Slota argues that in Presley “the Supreme Court did

not order the case remanded for further inquiry into the merits of the courtroom

closure. Had the Supreme Court believed that the structural error of improper

closure could be remedied by a rehearing on the merits, the Supreme Court would

have announced such.” Brief for Appellant at 10. However, Presley did not involve

the remedy for an improper closure. Presley involved a trial court’s failure to

consider alternatives to accommodate public attendance. “Nothing in the record

show[ed] that the trial court could not have accommodated the public at Presley’s

trial.” Presley, 558 U.S. at 215, 130 S. Ct. at 725. Thus, Presley does not provide

guidance on remedies for closure violations. Waller, however, specifically indicates

that a new trial is not required. In analyzing the question of “what relief should be

ordered to remedy [a] constitutional [closure] violation,” the Waller Court held that

“[it did] not think [the closure violation] require[d] a new trial[.]” Waller, 467 U.S.

at 49-50, 104 S. Ct. at 2217. Instead, “the remedy should be appropriate to the

violation.” Id. at 50, 104 S. Ct. at 2217.

[¶17.]         In Rolfe I, we adopted this view, concluding that “the remedy should be

appropriate to the violation and it [did] not require a new trial[.]” 3 2013 S.D. 2,



3.       Slota takes issue with Rolfe I’s citation to Goldberg v. United States, 425 U.S.
         94, 111, 96 S. Ct. 1338, 1348, 47 L. Ed. 2d 603 (1976). Goldberg was cited for
         the proposition that “Rolfe’s rights can be fully protected by a remand to the
         trial court ‘with direction to hold an inquiry consistent with this opinion.’”
                                                                (continued . . .)
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¶ 26, 825 N.W.2d at 909. In Rolfe II, we reaffirmed Rolfe I, concluding “that a

remand to the trial court in order to supplement the record was an appropriate

remedy.” 2014 S.D. 47, ¶ 12, 851 N.W.2d at 902. Slota, however, relies on other

courts for his argument that a new trial is the proper remedy for a violation of the

Sixth Amendment right to a public trial. But Slota’s cited authorities were

presented to this Court in Rolfe II. Thus, Slota provides no new authority

supporting his request for reconsideration of Rolfe I and Rolfe II.

[¶18.]       Moreover, Slota acknowledges that other cases recognize a closure

error may be cured by a post-hoc articulation on remand. See United States v.

Canady, 126 F.3d 352, 364 (2d Cir. 1997) (holding that the remedy was not a new

trial, but a remand for public announcement of the verdict); State v. Rollins, 729

S.E.2d 73, 79 (N.C. App. 2012) (“Given the limited closure in the present case and

the fact that the trial court did not utilize the Waller four-part test, we hold that the

proper remedy is to remand this case for a hearing on the propriety of the closure.”);

State v. Cote, 725 A.2d 652, 660 (N.H. 1999) (remanding for a hearing to apply the

Waller factors to the existing record to determine if the public was improperly

excluded); Kendrick v. State, 661 N.E.2d 1242, 1244-45 (Ind. Ct. App. 1996)

(remanding for findings to determine whether defendant’s right to a public trial was

violated); State v. McRae, 494 N.W.2d 252, 260 (Minn. 1992) (“Waller, however,

________________________
(. . . continued)
         Rolfe I, 2013 S.D. 2, ¶ 26, 825 N.W.2d at 909. The Supreme Court, however,
         also cited Goldberg for the same proposition. See Waller, 467 U.S. at 50, 104
         S. Ct. at 2217 (“Rather, the remedy should be appropriate to the violation. If,
         after a new suppression hearing, essentially the same evidence is suppressed,
         a new trial presumably would be a windfall for the defendant, and not in the
         public interest.” (citing Goldberg, 425 U.S. at 111, 96 S. Ct. at 1348)).

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made it clear that the remedy should be appropriate to the violation. If a remand

for a hearing on whether there was a specific basis for closure might remedy the

violation of closing the trial without an adequate showing of the need for closure,

then the initial remedy is a remand, not a retrial.”).

[¶19.]         Considering all relevant authority, Slota fails to provide a reason for

overruling Rolfe I and Rolfe II. 4 And because this Court may remand to address the

Waller factors, in the appropriate case, a circuit court may supplement the record

before an appeal. However, closures should be preceded by motion and notice of

opportunity to be heard sufficiently in advance of the hearing to permit intervention

by interested members of the public. See United States v. Alcantara, 396 F.3d 189,

200 (2d Cir. 2005). And a closure motion, whether made by a party or a court sua

sponte, should be filed in the public files maintained in the clerk’s office. See id.

(citing In re The Herald Co., 734 F.2d 93, 102-03 (2d Cir. 1984). See also In re

S. Carolina Press Ass’n, 946 F.2d 1037, 1039-40 (4th Cir. 1991).




4.       Only three of Slota’s cases declined to remand. See State v. Cox, 304 P.3d
         327, 335 (Kan. 2013) (“We . . . do not find persuasive the reasoning . . . that
         failure to make findings to support closure can be remedied by remand.”);
         Carter v. State, 738 A.2d 871, 880 (Md. 1999) (“When we have determined
         that the denial of a public trial has occurred, we have held that a new trial,
         rather than remand to supplement the record, is the proper remedy.”); Renkel
         v. State, 807 P.2d 1087, 1094 (Alaska Ct. App. 1991) (“The state has cited no
         post-Globe authority to support its contention that remand is a viable
         remedy. The only remedy available to this court is reversal.”). We decline to
         follow these cases.

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[¶20.]         Slota also argues that the circuit court’s post-hoc findings did not

justify closure of the courtroom. 5 Slota contends that the reasons proffered by

circuit court were general concerns that are applicable in most cases involving

children who were sexually abused.

[¶21.]         On a case-by-case basis, a circuit court may decide “whether closure of

a courtroom is necessary to protect a child victim of sexual abuse. A [circuit] court

should weigh factors such as the ‘victim’s age, psychological maturity and

understanding, the nature of the crime, the desires of the victim, and the interests

of parents and relatives.’” Rolfe I, 2013 S.D. 2, ¶ 19, 825 N.W.2d at 906 (quoting

Globe Newspaper Co., 457 U.S. at 608, 102 S. Ct. at 2621). “The interest and

specific findings should be articulated so that a reviewing court can make a

determination about whether closure was proper.” Id. ¶ 20, 825 N.W.2d at 907

(citing Press–Enter. Co. v. Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104

S. Ct. 819, 824, 78 L. Ed. 2d 629 (1984)). “‘Such circumstances [where the right to

an open trial gives way to other rights or interests] will be rare, however, and the

balance of interests must be struck with special care.’” Id. ¶ 18, 825 N.W.2d at 906

(quoting Presley, 558 U.S. at 213, 130 S. Ct. at 724).

[¶22.]         In this case, the circuit court entered numerous findings addressing

the Globe Newspaper Co. factors for child victims of sexual abuse. The court


5.       A distinction has been drawn between total and partial courtroom closures.
         Although a “substantial reason” is needed to justify a partial closure, Waller
         requires an “overriding interest” to justify a complete closure. Rolfe I, 2013
         S.D. 2, ¶ 22, 825 N.W.2d at 907. In this case, the circuit court “considered”
         its closure partial. Nevertheless, it found that “an overriding interest” was
         advanced by the State. Therefore, we need not determine whether the
         closure in this case was complete or partial.

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specifically addressed the victim’s age and maturity, nature of the crime, desires of

the victim, and interests of the parents. The circuit court also addressed each

Waller factor in its oral and written findings. See supra ¶ 5 (overriding interest);

¶ 6 (breadth of the closure); ¶ 7 (reasonable alternatives). Slota, however, argues

that the circuit court was persuaded by “the ordinary hardships of a child

testifying,” and that those considerations do not “justify an automatic, general

exclusion of the public in every case involving a young victim.”

[¶23.]       The circuit court considered factors beyond the “ordinary hardships”

children face when testifying about sexual abuse. The circuit court found that A.L.

was developmentally delayed, was on an IEP, and had hearing problems. Moreover,

A.L. had been repeatedly subjected to abuse and forcible removal from her parents’

custody until her parents’ parental rights were terminated. And A.L.’s adoptive

father testified that it would be traumatic for A.L. to testify. The circuit court

articulated factors beyond those normally associated with child testimony on

sensitive issues. The court’s findings demonstrated an overriding interest in closing

the trial during A.L. testimony.

[¶24.]       Slota, however, also argues that this case is not as compelling as Rolfe

II. There, we found sufficient justification for closure because:

             the trial court found that A.F.[, the victim,] was quite young—
             only nine years old when the abuse began and thirteen at the
             time of trial—and that A.F. showed psychological immaturity
             and lack of understanding of some of the sexual terminology
             used in the courtroom. The trial court also noted the prolonged
             and disturbing nature of the abuse alleged. The trial court
             observed that A.F. had difficulty relating her victimization to
             others, even to A.F.’s counselor. A.F. feared Rolfe and his
             manipulation of her family, and also felt betrayed and confused.
             At the time of trial, A.F. was suffering from stress-related illness

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             including vomiting, weight loss, and trouble concentrating.
             Additionally, the trial court found that A.F. sought to protect
             others from the horrific details of her abuse, and that A.F. was
             concerned she would not be able to answer questions as
             completely in an open courtroom. The trial court also found that
             the family wished the courtroom to be closed during A.F.’s
             testimony.

Rolfe II, 2014 S.D. 47, ¶ 18, 851 N.W.2d at 904. Although the circuit court in this

case did not make the identical findings as in Rolfe II, the court made sufficient

findings regarding the “‘victim’s age, psychological maturity and understanding, the

nature of the crime, the desires of the victim, and the interests of the parents and

relatives.’” See id., 851 N.W.2d at 903 (citing Rolfe I, 2013 S.D. 2, ¶ 25, 825 N.W.2d

at 909 (quoting Globe Newspaper Co., 457 U.S. at 608, 102 S. Ct. at 2621)).

[¶25.]       Slota also argues that A.L.’s circumstances were not sufficient to

justify closure under McIntosh v. United States, 933 A.2d 370 (D.C. 2007). In

McIntosh, the child victim initially testified in an open courtroom. The child was

timid; had to be reminded to speak louder and not to worry about the other people;

had anger problems; and had limited mental capacity and other psychological

problems. Id. at 373, 377. The court generally noted that the victim was in a

vulnerable position. Id. at 379. The court closed the courtroom because the victim

“seem[ed] to be uncomfortable with the excess people[.]” Id. at 375. McIntosh

reversed and remanded for a new trial because “the court’s general reference to the

child’s vulnerability [was] not sufficient to meet the fourth Waller requirement, nor

[did] it show that the trial court adequately considered other important interests

before ordering the courtroom closed.” Id. at 379-80. In this case, the circuit court

did more than just find that A.L. “was ‘in a more vulnerable position’ and was ‘a


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child talking about a sexual attack.’” See id. at 379. The circuit court made specific

findings as to A.L.’s “age, psychological maturity and understanding, the nature of

the crime, the desires of the victim, and the interests of parents and relatives.” See

id. at 377 (indicating these are the factors that trial court should have considered in

determining whether closure is necessary). 6 Furthermore, it was the lack of

findings by the trial court, not the facts of the case that precipitated the reversal in

McIntosh. McIntosh found an overriding interest in protecting that victim “from the

emotional trauma that was likely to occur unless the court closed the courtroom

while she testified.” Id. That same interest is present in the case we consider

today.

[¶26.]         The circuit court made adequate findings addressing the Waller and

Globe Newspaper factors. Those findings demonstrated an overriding interest that




6.       Slota cites several additional cases for the proposition that prevention of
         trauma or embarrassment is not enough to justify closure. Those cases are
         distinguishable either because those courts failed to evaluate the specific
         factors or there was nothing in the record to support the findings. See State
         v. Hightower, 376 N.W.2d 648, 650 (Iowa Ct. App. 1985) (rejecting closure
         because there was only a “mere reference to the ‘sensitive nature of the
         testimony’”); State v. Klem, 438 N.W.2d 798, 802 (N.D. 1989) (rejecting public
         closure because there were no findings that supported closure); People v.
         Holveck, 524 N.E.2d 1073, 1083 (Ill. App. 1988) (holding that the lower court
         did not carefully balance interests and the individualized evaluation of
         factors); Cote, 725 A.2d at 660 (N.H. 1999) (remanding to supplement the
         record and rejecting public closure when the court’s rationale focused on
         victim’s fear of defendant); Davis v. Reynolds, 890 F.2d 1105, 1110 (10th Cir.
         1989) (rejecting closure when the State was merely “trying to save [the
         witness] some problem and embarrassment”). In the case at bar, the circuit
         court articulated more than just a general reference to the sensitivity and the
         embarrassing nature of the testimony. There is a record that includes the
         necessary, individualized evaluation and the findings supporting closure.

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was no broader than necessary, considering the alternatives, for courtroom closure

during A.L.’s testimony. We affirm.

[¶27.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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