Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Lansing, 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.
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.
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 sexually exploitative material, I.C. § 18-1507A,*fn1 for acts committed against his girlfriend's tenyear-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?
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 ...