                Filed 1/15/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                  2019 ND 22


State of North Dakota,                                    Plaintiff and Appellee

      v.

Alexander Justin Pittenger,                            Defendant and Appellant


                                 No. 20170279


       Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.

      REVERSED.

      Opinion of the Court by Crothers, Justice.

        Marie A. Miller, Ward County Assistant State’s Attorney, Minot, ND, for
plaintiff and appellee.

      Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                  State v. Pittenger
                                    No. 20170279


       Crothers, Justice.
[¶1]   Alexander Pittenger appeals from a criminal judgment entered on a jury verdict
finding him guilty of corruption and solicitation of a minor and from an order denying
a motion to dismiss the charge. We reverse the criminal judgment because the district
court committed structural error by closing the courtroom during the complaining
witness’ testimony without considering the appropriate factors.
                                            I
[¶2]   The facts relevant to this appeal are that a jury convicted Pittenger of class A
misdemeanor corruption or solicitation of a minor in violation of N.D.C.C. §
12.1-20-05. The district court closed the courtroom during the complaining witness’
testimony. Pittenger objected to closing the courtroom and after his conviction he
appealed. During pendency of the appeal this Court temporarily remanded the case
to the district court to consider an “appropriate motion” in conjunction with the
parties’ stipulation that a “‘structural error [occurred] in closing the courtroom during
part of the State’s case-in-chief.’” The State filed a motion to dismiss the charge with
the district court. The court denied the motion and the case returned to this Court.
                                           II
[¶3]   Pittenger argues, and the State agrees, the district court committed reversible
error in closing the courtroom during the complaining witness’ testimony.
[¶4]   Denial of the right to a public trial without proper analysis is a structural error
requiring automatic reversal. See State v. Rogers, 2018 ND 244, ¶¶ 3, 6, 919 N.W.2d
193; State v. Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378. Four constitutionally
mandated factors must be considered before closing a courtroom to the public:
       “1. the claiming party must advance an overriding interest that is likely
       to be prejudiced,
       2. the closure must be no broader than necessary to protect that
       interest,

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       3. the trial court must consider reasonable alternatives to closing the
       proceeding, and
       4. it must make findings adequate to support the closure.”
Rogers, at ¶ 15; Decker, at ¶ 9 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)).
[¶5]   In addition, N.D.C.C. § 12.1-35-05.2 contains factors to consider before a
district court may close a courtroom during a sex offense trial involving a child:
       “In any criminal proceeding in which the defendant is charged with a
       violation of chapter 12.1-20 involving a child, the court, upon the
       motion of the prosecuting attorney, shall conduct a hearing to determine
       whether the testimony of and relating to a child may be closed to the
       public in order to protect the child’s reputation. In making the
       determination to close the proceedings, the court shall consider:
              1.     The nature and seriousness of the offense;
              2.     The age of the child;
              3.     The extent to which the size of the community
                     would preclude the anonymity of the victim;
              4.     The likelihood of public opprobrium due to the
                     status of the victim;
              5.     Whether the prosecution has demonstrated a
                     substantial probability that the identity of the
                     witness would otherwise be disclosed to the
                     public during the proceeding and that the
                     disclosure would cause serious harm to the
                     witness;
              6.     Whether the witness has disclosed information
                     concerning the case to the public through press
                     conferences, public meetings, or other means; and
              7.     Any other factor the court may find necessary to
                     protect the interests of justice.”
[¶6]   Here, at the beginning of the trial the prosecutor requested closure of the
courtroom during the juvenile complaining witness’ testimony because it is “common
practice, and it’s provided by statute that the courtroom be closed.” Pittenger’s
attorney objected because “my client has a right to an open and public trial.” The
district court said:
       “THE COURT:          Okay. At this point, I am inclined to have the
                            courtroom locked during Jane Doe’s testimony.
                            I understand the concern, but we do also have a
                            minor victim here. If Mr. Pittenger’s family

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                             wants to be in during the remainder of the
                             testimony, they certainly can.”
[¶7]   When the 17 year-old complaining witness (15 years old at the time of the
offense) was called to testify, the following occurred:
       “MS. MILLER:  Okay. The State would call Jane Doe. We would
                     ask that all individuals who are not a party to this
                     action be removed from the courtroom at this
                     time.
       MR. BRADSHAW: I’m going to object to that, Your Honor. My
                     client has a right to a fair trial that is open to the
                     public.
       THE COURT:    And Jane Doe is a minor.
       MR. BRADSHAW: Just noting my objection, Your Honor.
       THE COURT:    Your objection is noted. And I am going to ask
                     anybody that is in the courtroom that is not part of
                     these proceedings to go ahead and be excused at
                     this time.
                     ....
       THE COURT:    Let the record reflect the courtroom has been
                     cleared with the exception of a representative
                     from the State’s Attorneys office. The door has
                     been locked. Ms. Miller, you may continue.”
[¶8]   The district court did not conduct a hearing, make findings, or analyze the
appropriate factors, and considered only that the complaining witness was a minor.
This structural error requires reversal of the criminal judgment.
                                           III
[¶9]   Because denial of Pittenger’s right to a public trial is dispositive of this appeal,
we do not consider other arguments raised. The criminal judgment is reversed.
[¶10] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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