                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0870

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                   Suclah Clarke Sibou,
                                        Appellant.

                                    Filed May 4, 2015
                                        Affirmed
                                     Peterson, Judge

                               Jackson County District Court
                                  File No. 32-CR-11-197

Lori Swanson, Attorney General, Angela Behrens, Assistant Attorney General, St. Paul,
Minnesota; and

Sherry E. Haley, Acting Jackson County Attorney, Jackson, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from convictions of second- and third-degree controlled-substance

crime, appellant argues that he was denied a public trial and a fair trial. We affirm.
                                            FACTS

        During      controlled   buys,   appellant   Suclah   Sibou   sold   2.7   grams   of

methamphetamine to a police informant on October 10, 2009, and 1.5 grams of

methamphetamine to a police informant on December 4, 2009. Appellant was charged

with one count of second-degree controlled-substance crime and two counts of third-

degree controlled-substance crime. At trial, witnesses for the state included three law-

enforcement officers who arranged or observed the controlled buys, a forensic scientist,

the informant, and the informant’s adult daughter, who participated in the first controlled

buy. The jury also heard audio recordings of both controlled buys. Appellant did not

testify at trial.

        Public Trial

        On the second day of trial, defense counsel told the district court that, on the

previous day, a bailiff had prevented defense counsel’s wife and her friend from entering

the courtroom “at approximately 9:00 a.m.” The court noted that voir dire would not

have started yet at 9:00 a.m. and told defense counsel that it needed “affidavits from your

wife about exactly when she came and from what she was told from the Bailiffs.”

        Instead of submitting an affidavit from his wife, defense counsel submitted

affidavits from bailiffs M.P. and P.J. and moved for a mistrial based on the fact that

appellant’s “right to a public trial was violated by the Bailiffs not allowing people into

the courtroom.” M.P.’s affidavit states:

                       On June 26, 2013, mid morning, 2 females approached
                the court room. I advised them we were still in the process of
                jury selection and it would be a couple hours. I suggested


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              they could come back, wait in hallway or whatever as it
              would be a while just sitting. They walked to benches
              directly outside of Court Admin office.

       P.J.’s affidavit states:

                     On Wed June 26, 2013 I [P.J.] was working for the
              Jackson Co. Court system when two (2) Asian females came
              up to the 3rd floor asking about today’s court session. This
              was about mid-morning. We advised them there was jury
              selection at that time. They turned & walked toward the
              Court Admin. office & sat on the bench there.

       Court minutes for that day indicate that court convened at 10:04 a.m. when the

court called the case and addressed the jury pool. The district court noted that the

affidavits did not state a time and denied the mistrial motion, ruling that appellant’s right

to a public trial was not violated because court was not in session when the women were

purportedly asked to wait outside the courtroom.           The district court also denied

appellant’s posttrial motion for a new trial based on the same argument.

       Fair Trial

       Jackson County Sheriff’s Deputy Shawn Haken was asked during trial if he was

“familiar with” appellant, and he replied, “Yes.” When asked why he was familiar with

appellant, Haken said, “Past dealings.”      The prosecutor also asked Jackson County

Sheriff’s Deputy Donnie Schoenrock, the lead investigator, why he was familiar with

appellant, and Schoenrock said, “I have had several contacts throughout the years.”

       Later in his testimony, when Schoenrock was asked whether he was “concerned

about this particular buy,” he replied, “We have to assume what we are doing, when you

are dealing with drug dealers, you have to assume a certain level of danger.” The



                                             3
attorneys then approached the bench to discuss whether Schoenrock was about to testify

about appellant’s criminal history or his propensity for violence; defense counsel

objected to admission of this evidence. After receiving an offer of proof, the district

court limited Schoenrock’s testimony to “precautions taken” by police because of “past

contacts with [appellant]” and prohibited Schoenrock from using the word “violent”

during his testimony. Schoenrock then testified that police took the following security

measures in this case:

              Due to past experiences with [appellant] we took a few
              different precautions to be sure that everybody was aware of
              the situation, that everybody was aware of the situation that
              we knew that when we set up it would be a little closer than
              normal in our vehicle in case something [went] wrong that we
              could move in very quickly.

       The jury found appellant guilty, and the district court imposed an executed

sentence. This appeal followed.

                                     DECISION

                                             I.

       The United States and Minnesota constitutions require that “the accused shall

enjoy the right to a . . . public trial” in all criminal proceedings. U.S. Const. amend VI;

Minn. Const. art. I, § 6. “[T]he public trial guarantee applies to all phases of trial,

including . . . jury voir dire.” State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012).

“Whether the right to a public trial has been violated is a constitutional issue that we

review de novo.” Id. at 616. “Denials of the public trial guarantee constitute structural

error not subject to harmless error review.” Id.



                                             4
       The two affidavits submitted with appellant’s motion for a mistrial do not establish

a factual basis for appellant’s claim that his right to a public trial was violated by the

bailiffs not allowing people into the courtroom. As the district court noted, the affidavits

do not state a time when the two women appeared outside the courtroom; “mid-morning”

could refer to a wide range of time. Also, as the district court explained, there was a

period before voir dire began when members of the jury panel were milling around the

courtroom that could incorrectly be referred to as “jury selection,” even though the trial

had not actually begun. And, although it was not a basis for the district court’s decision,

neither affidavit states that the two women were turned away and not allowed to enter the

courtroom; they state only that the women sat on a bench outside the court-administration

office after being told that the court was in the process of jury selection.

       Defense counsel told the court that his wife and her friend were turned away from

the courtroom “at approximately 9:00 a.m.” Defense counsel did not witness events

outside the courtroom. But even if we assume that this statement is accurate, it does not

establish a constitutional violation because the district court found that court did not

convene until after 10:00 a.m. The evidence in the record is inadequate to establish that

the courtroom was not open to the public during appellant’s trial.

       Appellant correctly notes that if a district court determines that a courtroom should

be closed, it must articulate the interest served that overcomes the defendant’s right to be

tried in open court, “‛along with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.’” Waller v. Georgia, 467 U.S.

39, 45, 104 S. Ct. 2210, 2215 (1984) (quoting Press-Enter. Co. v. Superior Court of Cal.,


                                              5
464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984)). Appellant argues that the court failed to

make these required findings. But this argument rests on the unsupported premise that

the district court closed the courtroom during appellant’s trial. As we have already

discussed, the record does not establish that anyone was kept out of the courtroom during

appellant’s trial.

                                            II.

       Appellant argues that he was denied a fair trial because the district court admitted

testimony that referred to appellant’s prior contacts with police and to heightened safety

concerns that police had when they were dealing with appellant. “[A] prosecutor may not

attack the character of a defendant until the defendant puts his or her character in issue.”

State v. Strommen, 648 N.W.2d 681, 687 (Minn. 2002). Generally, evidence from which

a jury could infer that a defendant has a criminal record is inadmissible.         State v.

Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974); see State v. DeWald, 464

N.W.2d 500, 504 (Minn. 1991) (stating that preventing “a conviction based on prejudice

created by evidence of other crimes is the underlying purpose” for excluding other-crimes

evidence).

       Appellant did not object to the testimony about prior contacts with police, but he

did object to the testimony about heightened safety concerns. If there is no objection to

other-crimes evidence, review is conducted under the plain-error standard. Strommen,

648 N.W.2d at 686. “The plain error standard requires that the defendant show: (1) error;

(2) that was plain; and (3) that affected substantial rights. If those three prongs are met,

we may correct the error only if it seriously affects the fairness, integrity, or public


                                             6
reputation of judicial proceedings.” Id. (quotations and citations omitted). “Where . . . a

reference to a defendant’s prior record is of a passing nature, or the evidence of guilt is

overwhelming, a new trial is not warranted because it is extremely unlikely that the

evidence in question played a significant role in persuading the jury to convict.” State v.

Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotation omitted). When there is an

objection to admitting evidence, an appellant has the burden of proving that the district

court erred in admitting the evidence and that he was prejudiced by the admission of the

evidence. State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009)

              Depending on whether the district court’s erroneous
              admission of evidence implicates a constitutional right, we
              have applied two different harmless-error tests for
              determining whether the defendant was prejudiced by the
              admission of the evidence. When the error implicates a
              constitutional right, a new trial is required unless the State can
              show beyond a reasonable doubt that the error was harmless.
              An error is harmless beyond a reasonable doubt if the jury’s
              verdict was surely unattributable to the error. When the error
              does not implicate a constitutional right, a new trial is
              required only when the error substantially influenced the
              jury’s verdict.

Id. (citations omitted).

       Respondent argues that the prior-contacts evidence was admissible to prove

identity because appellant had not been identified when the two officers testified.

Appellant disputes whether his identity was at issue, but we need not resolve this issue

because, even if the district court erred by admitting the testimony about prior contacts

with police and heightened safety concerns, any error was harmless and did not affect

appellant’s substantial rights. Appellant was convicted of controlled-substance offenses



                                              7
after he was observed by police on two occasions selling methamphetamine to a

confidential informant during controlled buys that were audio-recorded by police.

       Appellant argues that the evidence against him was not strong because the

confidential informant was “a convicted felon and confidential informant, who was only

working with police to obtain a favorable plea deal in her own drug case” and the case

was tried three-and-a-half years after the second controlled buy.       He also points to

discrepancies between police reports and the trial testimony of police. But even in light

of these facts, there is no reasonable possibility that the character evidence significantly

affected the jury’s verdict or otherwise affected appellant’s substantial rights. Together,

the police testimony, confidential-informant testimony, and audio recordings of the

controlled buys that were played for the jury were overwhelming evidence that appellant

sold controlled substances to the confidential informant during two controlled buys. In

light of this overwhelming evidence, the jury’s verdict was surely unattributable to the

character evidence.

       Affirmed.




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