     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 31, 2018

                                2018COA77

No. 15CA1239, People in Interest of G.B. — Juvenile Court —
Delinquency

     In this juvenile delinquency proceeding, a division of the court

of appeals holds that the trial court committed structural error by

excluding from two days of trial all spectators under age eighteen.

The closure did not satisfy the four requirements laid out in Waller

v. Georgia, 467 U.S. 39, 49 (1984).
COLORADO COURT OF APPEALS                                      2018COA77


Court of Appeals No. 15CA1239
Weld County District Court No. 14JD159
Honorable Thomas J. Quammen, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of G.B.,

Juvenile-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                    Division III
                             Opinion by JUDGE WEBB
                           Richman and Fox, JJ., concur

                             Announced May 31, 2018


Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman,
Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1    In this juvenile delinquency proceeding, a jury convicted G.B.,

 age sixteen, of offenses that would, if committed by an adult,

 constitute felony sexual assault against the victim, age fifteen. The

 trial court adjudicated G.B. delinquent and sentenced him to the

 custody of the Division of Youth Corrections.

¶2    On appeal, he challenges the sufficiency of the evidence that

 he knew the victim was “incapable of appraising the nature of [her]

 conduct.” He also contends, among other things, that the trial

 court violated his right to a public trial by excluding, over objection,

 all spectators during his cross-examination of the sexual assault

 nurse examiner (SANE), and by excluding all spectators under age

 eighteen from a significant portion of the trial. The Attorney

 General concedes that G.B. preserved the sufficiency and the

 under-eighteen courtroom closure issues.

¶3    We conclude that the evidence was sufficient. Resolving a

 novel question in Colorado, we further conclude that because the

 trial court committed structural error by excluding all spectators

 under age eighteen from a significant portion of the trial, the

 judgment must be reversed. The case is remanded for a new trial.




                                    1
 Because we cannot predict whether, or if so how, G.B.’s other

 issues may arise on retrial, we decline to address them.

     I. The Prosecution Presented Sufficient Evidence for a Reasonable
       Jury to Conclude that G.B. Knew the Victim Was “Incapable of
                  Appraising the Nature of [Her] Conduct”

¶4       We begin with this contention because if G.B. is entitled to

 reversal of his adjudication “due to insufficient evidence, the

 guarantees against double jeopardy in the United States and

 Colorado Constitutions may preclude retrial.” People v. Marciano,

 2014 COA 92M-2, ¶ 42.

                              A. Background

¶5       According to the prosecution’s evidence, the victim decided to

 sneak out of her parents’ Greeley home. At a friend’s house, she

 contacted G.B., who was a fellow student at her high school, using

 Facebook. G.B., two other students at the high school, the older

 brother of one of them, and the victim drove to a party in Evans.

 They all drank beer and smoked marijuana.

¶6       The victim testified that when they left the party, she was

 having trouble walking. G.B. and one of the boys helped her to a

 car. They drove to meet Ignacio Guzman, an adult, and returned to

 the party in his four-door truck. She and G.B. stayed in the truck,


                                      2
  continuing to drink and smoke marijuana. According to the victim,

  G.B. forced her to have vaginal intercourse in the truck. The jury

  acquitted G.B. of this charge.

¶7     G.B., the victim, the other three boys, and Guzman left the

  party together. They continued to drink and smoke marijuana.

  Eventually, they went to Guzman’s house in Johnstown. Testimony

  concerning what happened after that was conflicting.

¶8     The victim testified that on arriving at Guzman’s house, she

  had trouble walking. She went into the bathroom, then rejoined the

  others in the living room. The group continued drinking and

  smoking marijuana. She was dizzy and having trouble standing up.

¶9     According to the victim, two of the boys were “helping move

  myself” to the bathroom. Although she was “conscious,” she felt

  that she could not do anything for herself. All the boys and

  Guzman joined her in the bathroom. She testified that Guzman

  forced her to perform oral sex on each of the boys. Then while

  someone held her hands and ankles, each of the boys and Guzman

  had vaginal intercourse with her. She told them to stop.

¶ 10   The victim testified further that the boys and Guzman left the

  bathroom and then returned one by one, each of them again having


                                   3
  vaginal intercourse with her. When G.B. was in the bathroom with

  her, she told him “no” and that she was in pain. Eventually, she

  cleaned up her blood from the bathroom floor, returned to the living

  room, and fell asleep.

¶ 11   One of the boys testified that Guzman told the victim to go to

  the bathroom, but she walked there by herself. She was “high and

  drunk.”

¶ 12   Guzman testified that when the group arrived at his house,

  the victim was flirting, dancing, rubbing on the boys, and appeared

  to be affected by drugs. He said that in the bathroom, she acted

  like she wanted to have sex, no one forced her to give G.B. oral sex,

  and she rejected his attempt to have anal sex. Then she suggested

  that she have sex with them one at a time.

                                 B. Law

¶ 13   An appellate court reviews the record de novo to determine if it

  includes sufficient evidence to support the convictions. People v.

  Douglas, 2015 COA 155, ¶ 8. In doing so, “we determine whether

  the evidence, viewed as a whole and in the light most favorable to

  the prosecution, is both ‘substantial and sufficient’ to support the




                                    4
  defendant’s guilt beyond a reasonable doubt.” Id. (quoting Dempsey

  v. People, 117 P.3d 800, 807 (Colo. 2005)).

¶ 14   G.B. was charged under section 18-3-402(1)(b), C.R.S. 2017,

  which provides that a person commits sexual assault if he

  “knowingly inflicts sexual intrusion or sexual penetration on a

  victim” and “knows that the victim is incapable of appraising the

  nature of the victim’s conduct.” The statute does not define

  “incapable of appraising the nature of the victim’s conduct.” But

  the supreme court has said that it “addresses the situation in which

  a victim is cognitively unable to appreciate her conduct; in other

  words, it involves a victim who simply cannot understand what she

  is doing.” Platt v. People, 201 P.3d 545, 548 (Colo. 2009).

                               C. Analysis

¶ 15   G.B. argues that unlike many other cases involving section

  18-3-402(1)(b), here the victim “was not mentally retarded, did not

  have an extremely simplistic understanding of sexual intercourse,

  was not asleep, and was not passed out or blacked out.” G.B.

  continues that “[a]lthough [the victim] may have been intoxicated to

  some degree,” she testified that she “knew what was going on.”




                                    5
¶ 16   This argument, however, ignores other evidence supporting

  the adjudication. For example, the victim testified, “I felt as if I

  couldn’t do anything for myself.” She explained, “I could feel myself

  moving . . . but it was hard for me to lift, like, my arm or to be able

  to walk on my own.” She also testified that she did not remember

  certain things about that night until she started having nightmares

  and flashbacks months later. And several witnesses testified about

  the victim’s alcohol and drug use during the evening.

¶ 17   Our role is not to sit as a thirteenth juror and reweigh the

  evidence heard by the jury. People v. Bertrand, 2014 COA 142, ¶ 15

  (“It was within the sole province of the jury to determine the weight

  of the evidence and to resolve any conflicts and inconsistencies in

  witness testimony.”). Instead, viewing the evidence in a light most

  favorable to the prosecution, we conclude that it is sufficient to

  support a conclusion by a reasonable jury that G.B. knew the

  victim was incapable of appraising the nature of her conduct.

        II. The Trial Court Violated G.B.’s Right to a Public Trial

¶ 18   G.B. next contends the trial court violated his right to a public

  trial by excluding all spectators from his cross-examination of the

  SANE and all spectators under age eighteen from a significant


                                      6
  portion of the trial. He asserts that because this error is structural,

  we must reverse the adjudication and remand for a new trial. We

  conclude that exclusion of all spectators under age eighteen from a

  significant portion of the trial was a structural error that requires

  reversal. Based on this conclusion, we need not address the cross-

  examination issue.

                            A. Relevant Facts

¶ 19   During the prosecution’s case, just before the paramedics who

  treated the victim testified, the court asked counsel, “What are they

  going to talk about?” The court explained to counsel “there[ are]

  children in here, and I will excuse them when it starts getting down

  to the nitty-gritty stuff.” Then the following discussion occurred:

             THE COURT: Do you know who these children
             are back here?

             PROSECUTOR: They’re with [G.B.], I believe.

             THE COURT: I’m going to ask them to leave. I
             don’t think it’s good for children to be listening
             to this.

             DEFENSE COUNSEL: I understand the Court’s
             position. I’ll just pose an objection on [G.B.’s]
             right to a speedy and public trial.

             THE COURT: Well, I agree with that. I have to
             also counter — I also have to balance that with
             topics that I just don’t think are in the best

                                     7
            interest of a child to hear. So I respect that.
            But I’m going to . . . ask the children — do you
            know what their ages are?

            DEFENSE COUNSEL: I don’t, Judge. I’m not
            actually sure who they are.

            THE COURT: Okay. Well . . . I’m going to ask
            that the children be excused when we have
            testimony about sexual things. I know that
            there is an objection on the basis of a public
            trial, but I’ve got to balance that. Having a
            little child hear this type of stuff, I just . . .
            think it’s harmful for a child to hear this, so
            I’m going to have them leave . . . .

¶ 20   The next day, the parties discussed closing the courtroom to

  the general public during the presentation of photographs of the

  victim’s genitalia. Although G.B. did not object to this narrow

  closure, he reiterated his prior objection to closing the courtroom

  and said “our objection stands there. We would still like the

  courtroom to be open and public.” After that, the trial court said:

            And I also, in this particular case, am
            excluding children from the gallery. I don’t do
            that because the Court is concerned about
            whether they are going to be talking or — that
            is not the Court’s concern. The Court’s
            concern is that it is not in the best interests of
            a young child to be hearing this type of
            evidence. And I just don’t think that it’s good
            for a child to hear this. Their parents may
            disagree, but I disagree with them if they
            disagree with me on that. So . . . I have


                                     8
               directed the courtroom bailiff from —
               excluding children from the courtroom for that
               purpose.

  The courtroom deputy asked the trial court, “Is there an age limit

  that you want me . . . .” The court responded, “No. If they are

  children under 18, then they should — probably should not be

  here.”

¶ 21      The record does not indicate whether the courtroom was ever

  reopened to spectators under age eighteen. The closure occurred

  on the seventh day of the trial. Further evidence was presented

  over the next two days. Counsel made closing arguments on day

  nine.

                            B. Standard of Review

¶ 22      “A trial court’s decision to close the courtroom presents a

  mixed question of law and fact.” People v. Hassen, 2015 CO 49,

  ¶ 5. We defer to the trial court’s findings of fact if supported by the

  record, but review its ultimate legal conclusion de novo. Id.

                                   C. Law

¶ 23      The United States and Colorado Constitutions guarantee a

  criminal defendant the right to a public trial. U.S. Const. amends.

  VI, XIV; Colo. Const. art. II, § 16. Violation of this right is a


                                       9
  structural error requiring reversal without any showing of

  prejudice. See, e.g., Neder v. United States, 527 U.S. 1, 8 (1999);

  Waller v. Georgia, 467 U.S. 39, 49 (1984). Still, this right is not

  absolute; it may give way “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.” Waller, 467 U.S. at

  45; Anderson v. People, 176 Colo. 224, 226, 490 P.2d 47, 48 (1971).

¶ 24   To close a courtroom without violating a defendant’s public

  trial right, four requirements must be met. First, “the party seeking

  to close the [proceeding] must advance an overriding interest that is

  likely to be prejudiced.” Hassen, ¶ 9 (quoting Waller, 467 U.S. at

  48). Second, “the closure must be no broader than necessary to

  protect that interest.” Id. (quoting Waller, 467 U.S. at 48). Third,

  “the trial court must consider reasonable alternatives to closing the

  proceeding.” Id. (quoting Waller, 467 U.S. at 48). And fourth, the

  trial court “must make findings adequate to support the closure.”

  Id. (quoting Waller, 467 U.S. at 48).




                                     10
                               D. Analysis

         1. The First Waller Requirement — Overriding Interest

¶ 25   The trial court closed the courtroom to spectators under age

  eighteen because it was “not in the best interests of a young child to

  be hearing this type of evidence.” G.B. argues that under Waller,

  this reason did not constitute an “overriding interest.”

¶ 26   G.B. relies on Thompson v. People, 156 Colo. 416, 426-27, 399

  P.2d 776, 781-82 (1965), where our supreme court said:

            [W]hatever may have been the view in an
            earlier and more formally modest age, we think
            that the franker and more realistic attitude of
            the present day toward matters of sex
            precludes a determination that all members of
            the public, the mature and experienced as well
            as the immature and impressionable, may
            reasonably be excluded from the trial of a
            sexual offense upon the ground of public
            morals.

  Although Thompson referred to the “immature and

  impressionable,” the closure there involved all of the general public

  — not just children. Id. So, while we must follow the decisions of

  our supreme court, Thompson does not resolve the issue before us.

¶ 27   And unlike in Thompson, courts in other jurisdictions have

  recognized “[i]t is everywhere conceded that minors deserve special



                                    11
  consideration and may be excluded from the courtroom in trials of a

  salacious nature.” State v. Schmit, 139 N.W.2d 800, 804 (Minn.

  1966); see also Marshall v. State, 258 N.E.2d 628, 630 (Ind. 1970)

  (“In the trial for a sex offense . . . many courts have held that,

  because of the nature of the offense and the type of evidence which

  will be elicited, youthful spectators may be excluded.”); 6 Wayne R.

  LaFave et al., Criminal Procedure § 24.1(b), Westlaw (4th ed.

  database updated Dec. 2017) (“Earlier cases took the view that in

  the trial of sex offenses the general public, or at least youthful

  spectators, could be excluded from the courtroom to protect public

  morals.”).

¶ 28   In disputing whether an overriding interest is at stake, the

  Attorney General urges us to follow the standard mentioned in

  People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007), that where

  “the courtroom is only partially closed to the public” — as here —

  “there need only be a ‘“substantial” interest, rather than a

  “compelling” one.’” Id. (quoting United States v. Galloway, 937 F.2d

  542, 546 (10th Cir. 1991)). According to the Attorney General,




                                     12
  excluding children from the courtroom based on age-inappropriate

  evidence constitutes at least a substantial interest.1

¶ 29   G.B. responds that excluding such spectators does not

  constitute even a substantial interest. He points out that children

  under age eighteen may consent to sexual conduct under section

  18-3-402(1)(e).

¶ 30   Be that as it may, no Colorado court has embraced the

  substantial interest standard for partial closures. See Whitman,

  205 P.3d at 379 (explaining that the reason for the closure “satisfies

  either the overriding or substantial interest standards”). The

  Supreme Court has not addressed this question and other

  jurisdictions are divided. Compare Galloway, 937 F.2d at 546 (“[A]

  different standard applies where the courtroom is only partially

  closed to the public . . . .”), with People v. Jones, 750 N.E.2d 524,

  529 (N.Y. 2001) (“We believe that there is no need to adopt such an

  articulation of the Waller standard since Waller already


  1 In arguing that a substantial interest exists, the Attorney General
  relies on section 19-1-106(2), C.R.S. 2017, and section 19-2-110,
  C.R.S. 2017, both of which allow the closing of a juvenile trial if it is
  in the best interests of the juvenile or the community. But here the
  trial court’s findings focused on the interests of “child attendees” at
  trial, not the best interests of G.B. or the community.

                                     13
  contemplates a balancing of competing interests in closure

  decisions.”).

¶ 31   On this record, we need not decide whether the substantial

  interest standard applies. See Developmental Pathways v. Ritter,

  178 P.3d 524, 535 (Colo. 2008) (“[T]he principle of judicial restraint

  requires us to ‘avoid reaching constitutional questions in advance of

  the necessity of deciding them.’” (quoting Lyng v. Nw. Indian

  Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988))). Regardless

  of whether excluding children is a compelling interest, only a

  substantial interest, or something less, the trial court’s closure did

  not satisfy the second and third Waller requirements.2 See United

  States v. Simmons, 797 F.3d 409, 414 (6th Cir. 2015) (Courts “that

  have distinguished between partial closures and total closures

  modify the Waller test so that the ‘overriding interest’ requirement is

  replaced by requiring a showing of a ‘substantial reason’ for a

  partial closure, but the other three factors remain the same.”)

  (emphasis added); see also Presley v. Georgia, 558 U.S. 209, 216

  (2010) (per curiam) (“[E]ven assuming, arguendo, that the trial

  2 The Attorney General does not dispute that even under the
  substantial interest standard, the remaining three Waller
  requirements must still be met.

                                    14
  court had an overriding interest in closing [the courtroom], it was

  still incumbent upon it to consider all reasonable alternatives to

  closure. It did not, and that is all this Court needs to decide.”).

   2. The Second Waller Requirement — No Broader Than Necessary

¶ 32   G.B. argues that closing the courtroom to all spectators under

  age eighteen was broader than necessary. We agree.

¶ 33   Under Waller, a courtroom closure may not be any broader

  than necessary to protect the overriding interest. In other words,

  the closure must strike “‘a careful balance of interests’ that results

  in the exclusion of only those persons” necessary to protect the

  overriding interest. State v. Hood, 320 P.3d 522, 526 (N.M. Ct. App.

  2014) (quoting State v. Turrietta, 308 P.3d 964, 972 (N.M. 2013)).

¶ 34   Under this requirement, some courts addressing courtroom

  closures excluding all children have warned that such an “approach

  may be carried too far.” Marshall, 258 N.E.2d at 630. Reynolds v.

  State, 126 So. 2d 497 (Ala. Ct. App. 1961), is illustrative.

¶ 35   There, the court held that because excluding from the

  courtroom all children under age eighteen went beyond excluding

  merely “children of tender age,” the closure violated the defendant’s

  right to public trial. Id. at 498. The court explained:


                                     15
             [W]e do not think that the exclusion of
             “children of tender age” can be deemed to
             include persons of the ages excluded from the
             trial by the court below, that is, “children of
             eighteen years or less.” Persons of eighteen
             years of age can hardly be deemed children of
             “tender age.” Males of that age are subject to
             military service. In some states persons of
             that age can vote. In this State a female of
             eighteen years of age may marry without her
             parent’s consent.

  Id.; see also McConnaughey v. United States, 804 A.2d 334, 342

  n.10 (D.C. 2002) (“A barring of all children, rather than a select few,

  might present a closer constitutional question . . . .”).

¶ 36   In contrast, where a trial court imposes a narrow closure

  related to only young children, the public trial right is not violated.

  See Covington v. Lord, 275 F. Supp. 2d 352, 358 (E.D.N.Y. 2003) (A

  trial court’s exclusion of one “young boy from a murder trial did not

  infringe any of the core values that the public trial right protects.”),

  aff’d, 111 F. App’x 647 (2d Cir. 2004); see also Davis v. Walsh, No.

  CV 08-4659(PKC), 2015 WL 1809048, at *8 (E.D.N.Y. Apr. 21, 2015)

  (“Only the [four-year-old] child was excluded, so the closure was no

  broader than necessary.”).

¶ 37   Recall that here the courtroom closure was based on the trial

  court’s desire to prevent “a young child [from] hearing this type of


                                     16
  evidence.” Yet, the closure went well beyond “a young child” and

  excluded all spectators under age eighteen. Such a broad closure

  was especially problematic given the ages of G.B., the victim, and

  many trial witnesses, all of whom were under age eighteen.

¶ 38   The trial court’s closure could have prevented peers of G.B.

  and the victim from attending the trial, undermining two goals

  served by the public trial right: to encourage witnesses to come

  forward and to discourage perjury. Hassen, ¶ 15; see Gannett Co.

  v. DePasquale, 443 U.S. 368, 383 (1979) (“Openness in court

  proceedings may improve the quality of testimony, induce unknown

  witnesses to come forward with relevant testimony, [and] cause all

  trial participants to perform their duties more conscientiously

  . . . .”). In contrast, young children would not have had a similar

  interest in the proceeding. See Sobin v. United States, 606 A.2d

  1029, 1033-34 (D.C. 1992) (Excluding “two children of tender years

  . . . in no way undermined the public policy goals identified above

  which are advanced by the requirement that criminal proceedings

  be open.”).

¶ 39   For these reasons, we conclude that closing the courtroom to

  all spectators under age eighteen — for the remainder of the trial —


                                    17
  was broader than necessary to achieve the trial court’s legitimate

  interest in protecting young children from exposure to

  age-inappropriate evidence. This conclusion brings us to whether

  the trial court considered any reasonable alternatives.

       3. The Third Waller Requirement — Reasonable Alternatives

¶ 40    G.B. argues that the trial court failed to consider reasonable

  alternatives when it closed the courtroom to all spectators under

  age eighteen. Again, we agree.

¶ 41    Under Waller, the trial court was required to consider

  reasonable alternatives to the closure “even when they are not

  offered by the parties.” Presley, 558 U.S. at 214; see

  Commonwealth v. Maldonado, 2 N.E.3d 145, 151 (Mass. 2014)

  (“Before ordering any closure of a court room, whether full or

  partial, a judge ‘must consider reasonable alternatives to closing the

  proceeding . . . .’” (quoting Waller, 467 U.S. at 48)). This is so

  because “[t]rial courts are obligated to take every reasonable

  measure to accommodate public attendance at criminal trials.”

  Presley, 558 U.S. at 215.

¶ 42    The Attorney General responds that the court must have

  considered reasonable alternatives because it only ordered a partial


                                     18
  closure of the courtroom rather than a total closure (other than as

  to cross-examination of the SANE), and only during part rather

  than all of the trial. This response misses the mark in two ways.

¶ 43   First, the record does not show that the trial court considered

  any alternatives to the exclusion of all spectators under age

  eighteen. See People v. Richards, 795 P.2d 1343, 1346 (Colo. App.

  1989) (“In this case, there is no indication in the record that the

  court adequately considered all of these factors. Of particular

  importance is the fact that the trial court failed to consider the

  other reasonable and less drastic alternatives available . . . .”).

¶ 44   Second, even if “instituting a partial closure might, in some

  cases, satisfy a court’s obligation to consider reasonable

  alternatives, it might not satisfy that obligation in other situations.”

  State v. Tucker, 290 P.3d 1248, 1258 (Ariz. Ct. App. 2012).

  Specifically, “if the partial closure under consideration is not

  sufficiently limited to comply with Waller’s second requirement, the

  court must consider other alternatives.” Id. And as we have

  concluded above, the closure was not narrowly tailored.

¶ 45   For example, G.B. asserts that “[i]f the court was concerned

  about young children hearing the evidence, [it] could have


                                     19
  considered excluding only children under [age] twelve or thirteen.”

  After all, “[c]hildren today are more ‘streetwise’ and knowledgeable

  than children were even a few decades ago.” Belcher v. Charleston

  Area Med. Ctr., 422 S.E.2d 827, 837 n.12 (W. Va. 1992) (citation

  omitted). The court could have considered an exception for

  spectators who were identified as G.B.’s relatives, regardless of their

  ages. See People v. Richardson, 744 N.Y.S.2d 407, 407 (N.Y. App.

  Div. 2002) (“The trial court’s exclusion of defendant’s children, ages

  eight and nine, from the courtroom violated defendant’s right to a

  public trial . . . .”). And it could have exempted from the exclusion

  persons under age eighteen who were students in the high school

  that G.B. and the victim attended, a community that had a

  particular “interest in seeing that offenders are brought to account.”

  United States v. Cojab, 996 F.2d 1404, 1407 (2d Cir. 1993); see also

  In re J.R.L., 738 S.E.2d 144, 148 (Ga. Ct. App. 2013) (recognizing

  “the community’s need for a full and public trial”).

¶ 46   Because the trial court did not expressly consider any of these

  less drastic alternatives, the court failed to meet the third Waller

  requirement.




                                    20
¶ 47   In the end, based on the second and third Waller

  requirements, we conclude that the trial court erred in closing the

  courtroom to all spectators under age eighteen. In saying this

  much, we take care to explain what we do not mean to say. Trial

  courts have a legitimate concern in protecting young children from

  exposure to salacious evidence that is potentially disturbing to

  them. But balancing that concern against the public trial right

  based on a bright-line test of excluding all spectators under age

  eighteen will rarely survive constitutional scrutiny.

                               4. Remedy

¶ 48   The Attorney General asserts that even if the trial court failed

  to satisfy one or more of the Waller requirements, “to the extent that

  it is not clear how long the children were excluded for, this Court

  may remand for any perceived deficiency in the record rather than

  reversing under structural error.” We decline to remand.

¶ 49   Only one Colorado case has remanded for findings on this

  issue. People v. Thomas, 832 P.2d 990, 993 (Colo. App. 1991). In

  Thomas, whether closure even occurred was unclear, and if it did,

  the closure may have been so “momentary and fleeting” as to be de

  minimis. Id.


                                    21
¶ 50   Unlike in Thomas, here the record is clear that the closure was

  neither momentary nor fleeting. The trial court told the parties that

  it was excluding spectators under age eighteen two days before

  closing arguments. See Hassen, ¶ 16 (“Given that the testimony of

  the two undercover officers totaled roughly twenty-seven pages in

  the trial transcript, we cannot conclude that the multiple closures

  were ‘extremely short.’”).

¶ 51   Nor was G.B. required to prove that specific spectators under

  age eighteen attempted to enter the courtroom after the trial court’s

  order, but were excluded. See Lilly v. State, 365 S.W.3d 321, 331

  (Tex. Crim. App. 2012) (“When determining whether a defendant

  has proved that his trial was closed to the public, the focus is not

  on whether the defendant can show that someone was actually

  excluded. Rather, a reviewing court must look to the totality of the

  evidence and determine whether the trial court fulfilled its

  obligation ‘to take every reasonable measure to accommodate public

  attendance at criminal trials.’” (quoting Presley, 558 U.S. at 215)).

¶ 52   As well, remand would waste judicial resources. By any fair

  account, the closure was not narrowly tailored. The trial court

  could not now find otherwise. Nor did the trial court even consider


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  any alternatives. So, whatever alternatives the court might

  belatedly recognize on remand would not shore up its earlier

  decision. See Smith v. State, 213 So. 3d 327, 338 n.2 (Ala. Crim.

  App. 2011) (“Although an appellate court may, in some

  circumstances, remand a cause . . . to supplement the record with

  specific findings in compliance with Waller, such a remand is not

  necessary in this case.”).

                               III. Conclusion

¶ 53       The judgment is reversed and the case is remanded for a new

  trial.

           JUDGE RICHMAN and JUDGE FOX concur.




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