State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0843

State of Minnesota,
Respondent,

vs.

Gary Christopher Petersen,
Appellant.

Filed December 14, 2020
Reversed and remanded
Segal, Chief Judge

Anoka County District Court
File No. 02-CR-17-2064

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

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

Considered and decided by Segal, Chief Judge; Larkin, Judge; and Jesson, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
Appellant challenges the sufficiency of t he evidence supporting his conviction for
criminal sexual conduct, argues that the district court’s unjustified closure of the courtroom

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during jury voir dire entitles him to a new trial on all charges, and contends that the jury’s
findings were insufficient to support the imposition of aggravated sentences. Although the
evidence was sufficient to have supported the jury’s guilty verdi ct with respect to the
criminal-sexual-conduct offense, we reverse appellant’s convictions and sentence s and
remand for a new trial based upon the district court’s improper courtroom closure.
FACTS
In September 2016, Anoka County Sheriff’s Deputies found videos on a cell phone
that was recovered during an unrelated incident. The cell phone videos showed a man
being beaten. Detectives identified the perpetrators of the beating in the videos as appellant
Gary Christopher Petersen, his son Jarrod Petersen, Jeffrey Brummett, Gary Carlson, and
Rebecca Aspinwall. Detectives also identified the victim as E.P. When detectives spoke
with E.P. about the incident, E.P. provided a statement consistent with the events shown
on the videos.
According to E.P.’s testimony, he had gone to Brummett’s home on September 5,
2016, where Brummett told him that he needed to speak with Petersen an d Petersen’s son
about an incident involving the burning of the Petersens’ truck. E.P., Petersen, and
Petersen’s son went to the basement of the home where the two men began assaulting E.P.
Petersen’s son hit E.P. in the head, and Petersen grabbed a hamm er and hit E.P.’s hands
with it. Petersen then tied a rope around E.P.’s hand, threw the rope over a beam, and held
it taut while Petersen’s son continued to hit E.P. and yell at him.
Shortly thereafter, Brummett, Aspinwall, and Carlson entered the bas ement.
Brummett handed Aspinwall a taser and told h er to “tase [E.P.] in the nuts.” Petersen

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continued to hold the rope, restraining E.P., while Aspinwall tased E.P. in the genitals.
Aspinwall then handed the taser to Carlson, wh o tased E.P. in the side . Brummett
continued to physically assault E.P. and, after Petersen had released the rope restraining
him, Brummett further sexually assaulted E.P. as well. E.P. estimated that he was in
Brummett’s home for approximately five or six hours before he was permitted to leave.
The state initially charged Petersen with aiding and abetting first -degree criminal
sexual conduct, aiding and abetting second-degree criminal sexual conduct, and aiding and
abetting kidnapping. The state later amended the complaint to include an additional charge
of aiding and abetting second -degree assault. After a trial, the jury acquitted Petersen of
aiding and abetting first-degree criminal sexual conduct but found him guilty of aiding and
abetting second-degree criminal sexual conduct, kidnapping, and second-degree assault.
The jury also found as aggravating factors that E.P. was unable to defend himself during
the commission of the crimes, that multiple weapons were used against E.P., and that
Petersen committed the crimes as part of a group of three or more active participants.
The district court sentenced Petersen to concurrent aggravated sentences of 120
months for aiding and abetting second-degree criminal sexual conduct and kidnapping, and
imposed a concurrent guideline s sentence of 21 months for aiding and abetting second -
degree assault.
Peterson filed a direct appeal from the district court’s judgments of conviction ,
arguing that (1) the evidence was insufficient to prove that he aided and abetted criminal
sexual conduct, (2) the district court denied his right to a public trial when it closed the
courtroom during jury voir dire, and (3) the jury’s findings were insufficient to support the

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upward durational sentencing departures. In a published opinion, this court hel d that the
district court’s closure constituted a “true closure” of the courtroom, but that the record did
not provide a basis on which to determine whether the closure was justified. State v.
Petersen, 933 N.W.2d 545, 55 2-53 (Minn. App. 2019). This court did not address
appellant’s remaining arguments, and instead remanded the case to the district court “for
an evidentiary hearing and findings concerning whether the closure was justified.” Id.
at 553.
Following an evidentiary hearing, the district court issued an order concluding that
the closure of th e courtroom was not justified. It declined to address the question of
remedy, however, stating that it “did not receive an instruction to grant a new trial” from
this court, and that it was complying “with the clear, limited instructions to conduct an
evidentiary hearing and make findings.” Petersen filed the current appeal from the district
court’s order on remand. This court directed the parties to submit brief s concerning the
district court’s order and addressing any appropriate remedy, and granted expedited review
to address this issue as well as those reserved in this court’s prior opinion.
D E C I S I O N
The issues now before us for resolution include, f irst, P etersen’s claim that his
conviction for aiding and abetting second -degree criminal sexual conduct was not
supported by sufficient evidence and must, therefore, be reversed and cannot be retried .
The second issue is Petersen’s entitlement to a reversa l of all convictions and a new trial
based on the district court’s conclusion that the closure of the courtroom during jury voir
dire was not justified. The final issue relates to Petersen’s contention that the jury’s

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findings were not sufficient to suppo rt the imposition of aggravated sentences. We will
address each in turn.
I. The evidence was sufficient to support Peterson’s conviction for aiding and
abetting second-degree criminal sexual conduct.

Petersen argues that the state failed to prove beyond a reasonable doubt that he knew
Aspinwall was going to commit criminal sexual conduct against E.P. and that he intended
to further the commission of that crime, or that this act of criminal sexual conduct was in
pursuance of—and a reasonably foreseeable p robable consequence of —the other c rimes
for which he is liable.
When reviewing the sufficienc y of the evidence, we undertake “a painstaking
analysis of the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient” to support the jury’s verdict. State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). “We will view the evidence in the
light most favorable to the verdict and assume that the factfinder disbelieved any testimony
conflicting with that verdict.” State v. Palmer , 803 N.W.2d 727, 733 (Minn. 2011)
(quotation omitted). A verdict will not be overturned if the fact -finder, “acting with due
regard for the presumption of innocence and the requirement of proof beyond a reasonable
doubt, could reasonably conclude that the defendant was guilty of the charged offense.”
Ortega, 813 N.W.2d at 100.
If a conviction relies on circumstantial evidence, this court uses a heightened
standard of review. See State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010); State v.
Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). In such a case, we apply a two -step test

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to determine the sufficiency of the evidence. State v. Moore, 846 N.W.2d 83, 88 (Minn.
2014). First, we identify the circumstances proved. Id. (citing State v. Andersen , 784
N.W.2d 320, 329 (Minn. 2010)). “In identifying the circumstances proved, we assume that
the jury resolved any factual disputes in a manner that is consistent with the jury’s verdict.”
Id. (citing Andersen, 784 N.W.2d at 329). Second, we “examine independently the
reasonableness of the inferences that might be drawn from the circumstances proved,” and
then “determine whether the circumstances proved are consistent with guilt and
inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).
We consider the evidence as a whole rather than examine each piece in isolation. Andersen,
784 N.W.2d at 332.
The second-degree criminal-sexual-conduct statute provides, in relevant part, that
“[a] person who engages in sexual contact with another person is guilty of criminal sexual
conduct in th e second degree if . . . the actor causes personal injury to the complainant,
and . . . the actor uses force or coercion to accomplish the sexual contact.” Minn. Stat.
§ 609.343, subd. 1(e)(i) (2016). With regard to aiding and abetting liability, a person is
“criminally liable for a crime committed by another if the person intentionally aids, advises,
hires, counsels, or conspires with or otherwise procure s the other to commit the crime[,] ”
and is liable as well “for any other crime committed in pursuance of the intended crime if
reasonably foreseeable by the person as a probable consequence of committing or
attempting to commit the crime intended.” Minn. Stat. § 609.05, subds. 1, 2 (2016).
To “intentionally aid” means “that the defendant knew that his alleged accomplices
were going to commit a crime” and “that the defendant intended his presence or actions to

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further the commission of that crime.” State v. Bahtuoh , 840 N.W.2d 804, 810 (Minn .
2013) (quotations omitted). In other words, to impose liability for aiding and abetting an
offense, the state must show that the defendant played a knowing role in the commission
of the crime and took no steps to thwart its completion. State v. Ostrem, 535 N.W.2d 916,
924 (Minn. 1995). The supreme court has distinguished “between playing a knowing role
in the crime and mere presence at the scene, inaction, knowledge and passive
acquiescence.” State v. Scruggs, 822 N.W.2d 631, 640 (Minn. 2012) (quotations omitted).
But “active participation in the overt act which constitutes the substantive offense is not
required,” and “a person’s presence, companionship, and conduct before and after an
offense are relevant circumstances from which a person’s criminal intent may be inferred.”
Ostrem, 535 N.W.2d at 924; see also Bahtuoh, 840 N.W.2d at 810.
Petersen’s conviction for aiding and abetting second-degree criminal sexual conduct
was based on his liability for Aspinwall’s act of tasing E.P. in his genitals—behavior which
the parties do not dispute constitutes second -degree criminal sexual conduct. The
circumstances proved that support the jury’s verdict for aiding and abetting this offense are
as follows: Petersen was with E.P. in the basement of Brummett’s home; Petersen tied a
rope around E.P.’s hand, threw the rope over a beam, and held it taut so that E.P. was not
able to move while Petersen’s son physically assaulted him ; Brummett handed Aspinwall
a taser and told her to “tase [E.P.] in the nuts”; Peters on continued to hold the rope,
restraining E.P. while Aspinwall tased him in the genitals; Petersen did not attempt to stop
Aspinwall; and Petersen continued to hold the rope after this assault occurred.

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Although these proven circumstances are consistent with the conclusion that
Petersen knowingly assisted Aspinwall’s use of the taser on E.P.’s genitals, Petersen argues
that they are equally consistent with the hypothesis that he did not intend to assist with any
criminal-sexual-conduct offense, and that A spinwall’s actions were not a reasonably
foreseeable consequence of the kidnapping and assault. But the circumstances proved belie
Petersen’s argument. Due to the fact that Petersen continued to hold the rope restraining
E.P. after Brummett handed Aspinwall the taser and directed her to use it on E.P.’s genitals,
and his continued restraint of E.P. thereafter, it would be unreasonable to infer that Petersen
(1) did not have knowledge of Aspinwall’s intent to commit the offense, and (2) did not
intend his presence or actions to facilitate the offense. Accordingly, the evidence presented
at trial was sufficient to support the jury’s verdict for aiding and abetting second-degree
criminal sexual conduct.
II. Petersen is entitled to a new trial on all counts based upon the district court’s
unjustified courtroom closure during voir dire.

The facts relevant to the district court’s closure of the courtroom are as set forth in
this court’s prior opinion in this matter. Petersen, 933 N.W.2d at 548 -49. In b rief, the
district court closed the courtroom in order to privately voir dire three prospective jurors
who had expressed concerns about publicly sharing personal information. After the three
identified jurors had been questioned, however, the district cou rt failed to reopen the
courtroom for the voir dire of an additional 25 prospective jurors. On appeal, this court
held that a true closure of the courtroom had occurred, but that the record was insufficient
to determine whether there was sufficient justif ication for it. Id. at 552-53. On remand,

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the district court found that the closure of the courtroom was indeed unjustified, but
declined to address the question of remedy.
Petersen appealed and now asks this court to reverse his convictions and order a
new trial based upon the district court’s unjustified closure of the courtroom. The state
does not take issue with the district court’s conclusion on remand that the closure was not
justified, and agrees that Petersen is entitled to a new trial on that basis. Nevertheless, this
court has an obligation to decide cases in accordance with the law notwithstanding the
concessions or agreements of the parties. See State v. Hannuksela, 452 N.W.2d 668, 673
n.7 (Minn. 1990). Accordingly, we independently review the district court’s determination
that the courtroom closure was unjustified.
The United States and Minnesota Constitutions guarantee the right to a public trial
and protect both the accused and the public at large from unjustified closures of
courtrooms. U.S. Const. amend. VI; Minn. Const. art. I, § 6 ; Waller v. Georgia, 467 U.S.
39, 46, 104 S. Ct. 2210, 2215 (1984). The right to a public trial has been extended to
protect voir dire proceedings as well. Presley v. Georgia, 558 U.S. 209, 213, 130 S. Ct.
721, 724 (2010); State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012).
The closure of a courtroom may be justified, however, if (1) “‘the party seeking to
close the hearing . . . advance[s] an overriding interest th at is likely to be prejudiced,’”
(2) the closure is “‘no broader than necessary to protect that interest,’” (3) the district court
considers “‘reasonable alternatives to closing the proceeding,’” and (4) the district court
makes “‘findings adequate to support the closure. ’” State v. Fageroos, 531 N.W.2d 199,
201-02 (Minn. 1995) (alteration omitted) (quoting Waller, 467 U.S. at 48, 104 S. Ct. at

10
2216).1 Whether a defendant’s right to a public trial has been violated is reviewed de novo.
State v. Taylor, 869 N.W.2d 1, 10 (Minn. 2015).
The first step in this analysis is typically an evaluation of whether a “true closure”
of the courtroom occurred such that an analysis of the Waller factors is required, or whether
the restriction was so insignificant as to not actually impl icate the public -trial right. Id.
at 11. In this court’s prior opinion in this matter, we concluded that the closure of the
courtroom during a “significant portion of voir dire proceedings” constituted a “true
closure” implicating Petersen’s right to a p ublic trial. Petersen, 933 N.W.2d at 552.
Neither party petitioned for further review of this decision to the Minnesota Supreme
Court, however, and so the question of whether a true closure occurred has become law of
the case and is not before the court in the current appeal. See State v. Bailey, 732 N.W.2d
612, 623 (Minn. 2007) (applying the law-of-the-case doctrine in a criminal matter ). The
remaining issues to be resolved, thus, are whether th e district court’s closure was
unjustified under the Waller factors and, if so, what remedy is required.
“Overriding Interest”
The first factor identified by Waller is whether the closure advanced an “overriding
interest that is likely to be prejudiced” by a proceeding open to the public. Fageroos, 531
N.W.2d at 201 (quotation omitted) . At the evidentiary hearing on remand, the judicial
officer who presided at trial testified that the purpose of the closure was both to ensure the
comfort and openness of the privately interviewed jurors, and to avoid tai nting the

1 These considerations are collectively referred to as the Waller factors.

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remainder of the jury pool. Although these may have constituted “overriding interests”
with regard to the first three potential jurors identified by the parties, there is no indication
in the record that any of these concerns related specificall y to any of the 25 other jurors
questioned privately that day. 2 See State v. Mahkuk , 736 N.W.2d 675, 685 (Minn. 2007)
(rejecting the protection of witnesses as an overriding state interest in the absence of any
witness having been intimidated or threatened). Accordingly, lacking any specific reason
to believe that the voir dire of the remainder of the prospective jurors implicated any such
concerns, the closure of the courtroom for the entirety of voir dire cannot be said to have
served an overriding interest with respect to them.
Breadth of the Closure
The second Waller factor is whether the closure was broader than necessary to
protect the interest overriding the right to a public trial. Fageroos, 531 N.W.2d at 201. As
noted above, because any legiti mate interest in a full closure of the courtroom was not
shown to have existed beyond the questioning of the first three prospective jurors, it follows
that the district court’s continued closure for the remainder of voir dire was therefore
unnecessarily broad. In addition, any concerns regarding the tainting of the jury pool with
the responses of other prospective jurors could have been eliminated simply by excluding
only the other prospective jurors from the courtroom and not the public at large. The

2 The United States Supreme Court has held that a prospective juror may have a valid
privacy interest when “interrogation touches on deeply personal matters that person has
legitimate reasons for keeping out of the public domain,” and that such circumstances may
support in camera voir dire. Press-Enterprise Co. v. Superior Court of California, 464
U.S. 501, 511-12, 104 S. Ct. 819, 825 (1984).

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closure of the courtroom was therefore far broader than necessary to address any interest
in the privacy of the first three prospective jurors.
Alternatives Considered
The third requirement for a justified closure of a courtroom is that the district court
considered reasonable alternatives to closing the proceedings. Id. As the district court
found in its order on remand:
[T]he trial court did not consider alternatives to the closure
because a motion to close the courtroom to the public was
made, and there was no vociferous objection. There was
specifically no consideration made to conduct an in camera
inquiry to determine if courtroom closure was necessary. Nor
did anyone within the courtroom ask prospective jurors if they
preferred to speak without members of the public being
present. Rather, they were, in almost all instances, advised that
they were brought into a private setting.

Because these findings are supported not only by the transcript of the jury voir dire itself
but also by the record of the evidentiary hearing, it is clear that no consideration was given
to alternatives to closing the courtroom.
Adequate Findings
The final requirement for a constitutional courtroom closure under Waller is that
findings are made by the district court sufficient to support the closure. Id. Here, the
district court initially made no findings regarding the closure of the courtroom during voir
dire, which precipitated this court’s remand on direct appeal . Petersen, 933 N.W.2d at
552-53. And on remand, the district court made very detailed findings that the closure was
in fact unjustified. Accordingly, the record contains no findings which adequately support
the closure of the courtroom in this case.

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Remedy
Because the record of both the voir dire proceedings and the evidentiary hearing on
remand establish that none of the Waller factors supported the district court’s closur e of
the courtroom for the entirety of voir dire, we hold that such closure was unjustified and in
violation of Petersen’s constitutional right to a public trial. A violation of the right to a
public trial “is considered a structural error that is not subject to a harmless error analysis,”
State v. Bobo , 770 N.W.2d 129, 139 (Minn. 2009), and generally requires the automatic
reversal of a conviction, State v. Brown, 732 N.W.2d 625, 630 (Minn. 2007). We therefore
reverse Petersen’s convictions and sentences and remand for a new trial.
III. Petersen’s claim that the jury’s findings were not sufficient to support the
aggravating factors justifying an upward sentencing departure is moot.

Petersen’s final claim relates to the sufficiency of the jury’s findi ngs to support the
upward sentencing departures imposed in this case. Because Petersen’s sentencing claim
is rendered moot by our reversal of his convictions and sentences, we decline to address it
in this opinion.
Reversed and remanded.