State v. Biebinger , 1998 Minn. LEXIS 780 ( 1998 )

585 N.W.2d 384 (1998)

STATE of Minnesota, Respondent,
v.
Larry Curtis BIEBINGER, Petitioner.

No. C6-97-2067.

Supreme Court of Minnesota.

October 29, 1998.

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED (1) that the petition of the State of Minnesota for further review of the decision of the Court of Appeals be, and the same is, granted and (2) that the unpublished decision of the Court of Appeals filed September 8, 1998 in this case be, and the same is, reversed and the case is remanded to the district court for an evidentiary hearing, not retrial. This is a prosecution for criminal sexual conduct in the first degree and other sex charges involving the same victim. The district court ordered the courtroom closed during the testimony of the victim. The jury found the defendant guilty as charged and the trial court sentenced him as a patterned sex offender. The court of appeals reversed and remanded for a new trial because the district court ordered the courtroom closed without conducting a hearing and without making adequate findings of necessity and availability of other, better alternatives to closure. As in State v. Fageroos, 531 N.W.2d 199 (Minn.1995), the appropriate initial remedy in this situation is a remand for an evidentiary hearing, not retrial.

Reversed and remanded to the district court for further proceedings consistent with this order.

BY THE COURT: /s/ Edward C. Stringer Edward C. Stringer Associate Justice