               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38929

STATE OF IDAHO,                                 )
                                                )     2012 Opinion No. 63
       Plaintiff-Respondent,                    )
                                                )     Filed: December 3, 2012
v.                                              )
                                                )     Stephen W. Kenyon, Clerk
KEVIN CHRISTIAN OVERLINE,                       )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Judgment of conviction and sentences for lewd conduct with a minor child, sexual
       abuse of a minor, and possession of sexually exploitative material, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Kevin Christian Overline appeals from his judgment of conviction for several sex
offenses against a child. The principal issue that we must address is whether defense counsel
may waive a defendant’s constitutional right to a public trial by consenting to closure of a
portion of the trial, or whether such a waiver may be made only by the defendant personally. We
hold that this constitutional right may be waived by consent from counsel and therefore affirm
the judgment of conviction.
                                               I.
                                       BACKGROUND
       Overline was charged with lewd conduct with a minor child under sixteen, Idaho Code
§ 18-1508, sexual abuse of a minor child under sixteen, I.C. § 18-1506, and possession of




                                               1
sexually exploitative material, I.C. § 18-1507A, 1 for acts committed against his girlfriend’s ten-
year-old daughter.    The charges arose from Overline’s creation and possession of explicit
photographs of the child’s body. At a pretrial conference, the court inquired about the type of
exploitative material the State intended to present, and the prosecutor responded that it would be
photographs. The following exchange then occurred:
               [PROSECUTOR]: And I’m wondering if I can just publish [the exhibits]
       personally to the jury or we can clear the courtroom out since it is a young victim.
               THE COURT: I--I would probably clear--clear the area. I think that
       would make more sense. Is that okay with you?
               [DEFENSE COUNSEL]: That’s fine.
               THE COURT: Okay. But this isn’t like videos or anything like that? It’s
       just photographs?
               [PROSECUTOR]: Photographs.
               THE COURT: And it’s up to you whether you want to just publish it
       individually or put it on the overhead. But if you--I think if you want to do it on
       the overhead, that’s fine, and then we can--we’ll just have everybody out.

At trial, the district court excluded spectators from the courtroom on at least two occasions,
without defense objection, while the photographs were being shown as exhibits. One closure
occurred while the victim identified herself in the photos, and one while a computer forensic
examiner identified the photos as those that had been found on a computer in Overline’s home.
The courtroom apparently was open for all other portions of the trial, including the victim’s
testimony that was unrelated to the photographs. The jury returned guilty verdicts on all three
charges.
       Overline appeals, asserting that his convictions must be reversed because the closure of
the courtroom violated his constitutional right to a public trial. He also asserts that his sentences
are excessive.
                                                 II.
                                           ANALYSIS
A.     The Sixth Amendment Right to a Public Trial
       The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” This right is made
applicable to the states through the Due Process Clause of the Fourteenth Amendment. In re



1
       This statute has been repealed, effective July 1, 2012.

                                                 2
Oliver, 333 U.S. 257, 278 (1948). “The requirement of a public trial is 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.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting
Oliver, 333 U.S. at 270 n.25). 2 “In addition to ensuring that judge and prosecutor carry out their
duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.”
Waller, 467 U.S. at 46. Waller sets forth the procedures that must be followed before a criminal
trial may be closed over a defense objection:
       [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 48.   Because of the “great, though intangible, societal loss that flows from closing
courthouse doors,” the denial of a right to a public trial is considered a structural error from
which prejudice is presumed. Id. at 49 n.9 (internal quotations and citation omitted).
       Because Overline made no objection to the courtroom closures that occurred here, his
claim that his right to a public trial was violated is reviewable on appeal only if he demonstrates
that the trial court’s action constituted fundamental error. State v. Perry, 150 Idaho 209, 225-26,
245 P.3d 961, 977-78 (2010). To demonstrate fundamental error, the defendant’s first burden is
to show that one or more of the defendant’s unwaived constitutional rights was violated. Id. at
226, 245 P.3d at 978. That is, the claimed error is not reviewable if the constitutional right was
waived at the trial court level. Id. at 225, 245 P.3d at 977. See also United States v. Olano, 507
U.S. 725, 732-34 (1993) (holding that if a right is waived, no “error” has occurred).
       In the present case, defense counsel plainly waived any objection to the closure of the
trial when he said, “That’s fine,” after the court expressed a preference to clear the courtroom
and asked, “Is that okay with you?” 3 Overline asserts, however, that defense counsel’s consent


2
       The press and the public also possess, via the First Amendment, an enforceable right to
an open and public trial proceeding, which can be foreclosed over their objection only in limited
circumstances. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10 (1984); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982).
3
       Overline argues that the attorney’s response was not a consent to closure of the
courtroom because “defense counsel was asked whether he was okay with the district court’s

                                                 3
to the exclusion of spectators does not preclude review of his claim of fundamental error because
a valid waiver of the right to a public trial requires a personal and informed waiver by the
accused himself.
       Not all of a criminal defendant’s constitutional rights are subject to waiver by only the
defendant personally. As explained by the United States Supreme Court:
               What suffices for waiver depends on the nature of the right at issue.
       “[W]hether the defendant must participate personally in the waiver; whether
       certain procedures are required for waiver; and whether the defendant’s choice
       must be particularly informed or voluntary, all depend on the right at stake.”
       United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123 L. Ed. 2d 508
       (1993). For certain fundamental rights, the defendant must personally make an
       informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S. Ct.
       1019, 82 L. Ed. 1461 (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7-
       8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) (right to plead not guilty). For other
       rights, however, waiver may be effected by action of counsel. “Although there
       are basic rights that the attorney cannot waive without the fully informed and
       publicly acknowledged consent of the client, the lawyer has--and must have--full
       authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400,
       417-418, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). As to many decisions
       pertaining to the conduct of the trial, the defendant is “deemed bound by the acts
       of his lawyer-agent and is considered to have ‘notice of all facts, notice of which
       can be charged upon the attorney.’” Link v. Wabash R. Co., 370 U.S. 626, 634,
       82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326,
       25 L. Ed. 955 (1880)). Thus, decisions by counsel are generally given effect as to
       what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct.
       3308, 77 L. Ed. 2d 987 (1983), what evidentiary objections to raise, see Henry v.
       Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), and what
       agreements to conclude regarding the admission of evidence, see United States v.
       McGill, 11 F.3d 223, 226-227 (C.A.1 1993). Absent a demonstration of
       ineffectiveness, counsel’s word on such matters is the last.

New York v. Hill, 528 U.S. 110, 114-15 (2000). In addition to the two fundamental rights
mentioned in Hill--the right to counsel and the right to plead not guilty--the United States
Supreme Court has identified several other rights that cannot be waived without a defendant’s
personal and informed consent. These include the right to a jury trial, the right to be present at
trial, the right to testify on one’s own behalf and the right to appeal. Florida v. Nixon, 543 U.S.




intention to ‘clear the area’ or publish the photographs privately to the jury.” This assertion is
not a reasonable characterization of the colloquy; defense counsel was plainly consenting to the
district court’s preference to “clear the area.”

                                                4
175, 187 (2004); Taylor v. Illinois, 484 U.S. 400, 417-18 n.24 (1988); Jones v. Barnes, 463 U.S.
745, 751 (1983). Such decisions involving basic trial rights, the Supreme Court has said, “are of
such moment that they cannot be made for the defendant by a surrogate.” Nixon, 543 U.S. at
187.
       We have found no United States Supreme Court decision suggesting that waiver of the
Sixth Amendment right to a public trial is within the category of decisions reserved exclusively
to the defendant. On the contrary, although they do not squarely address the issue, two Supreme
Court opinions strongly indicate that exclusion of the public from a trial does not require the
defendant’s express consent. In the first, Levine v. United States, 362 U.S. 610 (1960), the trial
court had excluded the public from the courtroom before trying and sentencing the defendant for
a criminal contempt committed when the defendant refused to respond to the questions of a
grand jury. No objection to the courtroom closure was made by the defense. The Supreme
Court noted that because criminal contempt proceedings are not “criminal prosecutions” for
which a public trial is guaranteed by the Sixth Amendment, the public trial right at issue in
Levine did not derive from the Sixth Amendment but from the constitutional guarantee of due
process. The Court held that the exclusion of the public was not “contrary to the requirements of
the Due Process Clause” because no objection to the closure had been made. Id. at 619.
Notably, the Levine majority reached its holding over the dissents of four Justices, two of whom
were of the opinion that the defendant’s personal waiver of the right should be required. Id. at
626 (Brennan, J. dissenting). Levine is not squarely on point for our inquiry because it involved
a due process analysis rather than “one of the explicitly defined procedural safeguards of the
Constitution,” id. at 616, and because the Court’s analysis turned, in part, upon the fact that the
contempt arose in a grand jury inquiry, which was itself a closed proceeding. Id. at 617.
Nevertheless, Levine is indicative that the Supreme Court did not view the right to a public trial
to be of such a magnitude that it could be extinguished only by an informed personal waiver
from the defendant. 4
       The second informative case is Waller, where multiple defendants sought suppression of
evidence and participated in a single suppression hearing. On the prosecution’s motion, the trial


4
       In a subsequent decision, Peretz v. United States, 501 U.S. 923, 936 (1991), the Supreme
Court cited Levine in dictum for the proposition that “failure to object to closing of courtroom is
waiver of right to public trial.”

                                                5
court closed the suppression hearing to the public. Four of the defendants objected to the closure
but the fifth did not. Instead, “[c]ounsel for petitioner Cole concurred in the prosecutor’s motion
to close the suppression hearing,” and the state consequently argued that Cole was precluded
from challenging the closure on appeal. Waller, 467 U.S. at 42 n.2 (emphasis added). Rather
than ruling on this waiver issue as a matter of federal constitutional law, the Supreme Court
remanded Cole’s case to the Georgia state courts to determine “whether Cole is procedurally
barred from seeking relief as a matter of state law.” Id. If the Court had been of the view that
the Sixth Amendment right to a public trial may not be waived by counsel, it would seem that the
Court would have held that Cole’s right had not been waived, rather than remanding for
consideration of a possible procedural bar under state law.
       Even if Levine and Waller are not dispositive, we conclude that waiver of the right to a
public trial is not a decision for which the defendant’s consent is required. Rather, it is the type
of strategic or procedural decision that properly may be left to the judgment of defense counsel.
Although from the standpoint of societal interest in good government the public trial guarantee
provides an important safeguard against judicial or prosecutorial misbehavior, in most cases
courtroom closure will be of little or no consequence to the way the trial is conducted and of no
detriment to the defendant. From the standpoint of the accused, whether to exclude the public
from all or a portion of the trial is by no means commensurate with the highly consequential
decisions mentioned above that are reserved to the defendant alone. We think the Utah Supreme
Court aptly analyzed the issue in State v. Butterfield, 784 P.2d 153 (Utah 1989):
       A unifying characteristic of these rights [requiring a personal, knowing waiver by
       the defendant] appears to be that they are of central importance to the quality of
       the guilt-determining process and the defendant’s ability to participate in that
       process. . . .
               We judge the right to a public trial to be of a different order. Certainly it
       is important in assuring that abuses by the state are not permitted to be hidden
       from public view. . . . On the other hand, the absence of the public in a particular
       case does not necessarily affect qualitatively the guilt-determining process or the
       defendant’s ability to participate in the process. . . . Of course, it is possible that
       in a particular case the wrongful closure of a trial could have an adverse impact
       and that counsel would have failed to preserve an objection. However, the mere
       possibility of such an instance does not seem to warrant the imposition of a
       requirement of a personal waiver of the right to a public trial in all cases. Such
       possibilities are better dealt with via an ineffective assistance of counsel claim.




                                                 6
Id. at 156 (citations omitted). A number of other courts have likewise held that the Sixth
Amendment right to a public trial is subject to waiver by defense counsel or to forfeiture by
failure to object. 5 See Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009); United States v.
Hitt, 473 F.3d 146, 155 (5th Cir. 2006); United States v. Sorrentino, 175 F.2d 721, 723 (3rd Cir.
1949); People v. Vaughn, 821 N.W.2d 288, 300 (Mich. 2012). Decisions to the contrary from
other jurisdictions have been cited by Overline. It suffices to say that we do not find their
analysis persuasive. 6
       Accordingly, we hold that Overline’s defense attorney effectively waived any objection
to the closure of the courtroom during portions of the trial. Because Overline’s counsel waived
the constitutional right at issue, Overline has not met the first prong of the Perry test for
fundamental error--that an unwaived constitutional right was violated. Therefore, the issue is not
subject to fundamental error review.
B.     Sentences and Rule 35 Motion
       The district court imposed a term of imprisonment of twenty years with five years fixed
for lewd conduct, a concurrent term of imprisonment of twenty years with five years fixed for
sexual abuse, and a concurrent ten-year term of imprisonment with five years fixed for
possession of sexually exploitative material. Overline contends that his sentences are excessive
and that the district court erred in denying his subsequent Idaho Criminal Rule 35 motion for
reduction of his sentences.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,


5
        Waiver is distinct from forfeiture. Our Supreme Court, quoting from United States v.
Olano, 507 U.S. 725, 732-33 (1993), has explained the distinction: “Waiver is different from
forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.” Perry, 150 Idaho at 225, 245 P.3d
at 977 (internal quotation and citation omitted).
6
        We also note that one of the decisions cited by Overline, Commonwealth v. Edward, 912
N.E.2d 515 (Mass. App. Ct. 2009) was effectively overruled by a subsequent decision of that
state’s Supreme Court, Commonwealth v. Dyer, 955 N.E.2d 271, 281-82 n.8 (Mass. 2011).

                                                 7
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
        Overline had virtually no criminal record before the present offenses, but these offenses
were serious ones. Overline took more than fifty explicit nude photographs of his girlfriend’s
ten-year-old daughter while she was asleep. The photographs focused on the victim’s pre-
pubescent breasts, her anus, and her vaginal area. Overline’s hands could be seen in a number of
the pictures, touching and exposing the victim’s private parts. He cataloged the photos on a
computer, organizing them into folders under offensive and lewd titles. On one occasion, the
victim woke to Overline in the act of pulling down her bed sheets. On yet another occasion
Overline put his hand down the victim’s nightshirt, and when the child told her mother what he
had done, Overline convinced the mother and the victim that it had all been a dream.
        In his Rule 35 motion, Overline claimed that he wrongfully received “5 + 15 for taking
some pictures” and that other inmates had received lesser sentences for what were, in his view,


                                                 8
more egregious crimes. In its order denying relief, the district court rejected Overline’s attempt
to paint himself as the victim, noting that the pictures were clearly pornographic and that they
documented Overline’s physical molestation of the victim. The district court found that its
sentences imposed punishment that fit the crimes, and that the sentences were necessary to
protect society from future similar crimes and to allow for a period of rehabilitation.
       On appellate review of a sentence, the question before this Court is not whether the
sentence is one that we would have imposed, but whether it is clearly excessive under any
reasonable view of the facts. State v. Stover, 140 Idaho 927, 933, 104 P.3d 969, 975 (2005);
State v. Nienburg, 153 Idaho 491, 498, 283 P.3d 808, 815 (Ct. App. 2012). On this record, we
cannot say that the sentences imposed constitute an abuse of the trial court’s discretion or that the
court abused its discretion in denying Overline’s motion for Rule 35 relief.
                                                III.
                                         CONCLUSION
       The judgment of conviction, the sentences, and the order denying Rule 35 relief are
affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




                                                 9
