STATE OF MINNESOTA IN COURT OF APPEALS A25-0206 A25-0207
In the Matter of the Welfare of: E. J. C. L., Child.
Filed November 24, 2025 Affirmed Frisch, Chief Judge
Nobles County District Court File Nos. 53-JV-24-39, 53-JV-24-72
Cassandra J. Bautista, Bautista Defense PLLC, South St. Paul, Minnesota (for appellant E.J.C.L.)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Braden Hoefert, Nobles County Attorney, Worthington, Minnesota; and
Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent State of Minnesota)
Considered and decided by Ede, Presiding Judge; Frisch, Chief Judge; and Larkin,
Judge.
SYLLABUS
A district court plainly errs by allowing a witness to testify at trial outside the
presence of a defendant without holding a hearing and making findings pursuant to Minn.
Stat. § 595.02, subd. 4(c) (2024), that the defendant’s presence “would psychologically
traumatize the witness so as to render the witness unavailable to testify.” OPINION
FRISCH, Chief Judge
Appellant seeks reversal of the district court’s delinquency adjudication, arguing
that the district court committed reversible plain error by allowing a child-witness to testify
at trial, outside the presence of appellant, without first making findings pursuant to Minn.
Stat. § 595.02, subd. 4(c), that the defendant’s presence would psychologically traumatize
the witness so as to render the witness unavailable to testify. Appellant alternatively seeks
reversal of his delinquency adjudication on the basis that his trial counsel was ineffective.
Although the district court plainly erred by failing to hold a hearing and making the
required statutory findings before allowing the child-witness to testify at trial outside of
appellant’s presence, such error did not affect appellant’s substantial rights. Even if the
error affected appellant’s substantial rights, the error did not call into question the fairness
or integrity of judicial proceedings. Finally, appellant failed to satisfy his burden to
establish that his trial counsel was ineffective. We therefore affirm.
FACTS
This consolidated appeal arises from two delinquency petitions, one charging
appellant E.J.C.L. with first-degree criminal sexual conduct involving a six-year-old victim
(the child) and the other charging second-degree criminal sexual conduct involving victim
X.C. The matters were consolidated for trial.
Before trial, respondent State of Minnesota moved the district court for an order
allowing the child to testify at trial outside of appellant’s presence, pursuant to Minn. Stat.
§ 595.02, subd. 4(c), and for an order allowing the presence of a support person during the
2 child’s testimony. At the pretrial hearing, the district court asked appellant’s attorney if
there was an objection to the state’s motion. The attorney responded that there was no
objection, and the district court granted the state’s motion. Thereafter, the state informed
the district court that the child’s therapist was present and ready to testify in support of the
motion. Given the district court’s ruling, the state requested to excuse the therapist. In
response, the district court asked appellant’s attorney: “[Y]our client is stipulating and not
objecting to the motions, so they can be excused, correct?” The attorney responded: “Yes,
Your Honor.” The district court excused the therapist.
The matter proceeded to a court trial. The child was scheduled to testify on the first
day of trial. Prior to the child’s testimony, the district court inquired about
accommodations, and the state informed the district court that the child requested that their
mother, who was also a witness, accompany the child as a support person. Appellant’s
attorney stated that there was no objection to the request.
The trial proceeded. The state’s attorneys, appellant’s attorney, and the district court
judge were present in the main courtroom during the child’s testimony. Appellant and his
parents were present in a separate courtroom. The courtrooms were connected via video
and audio. Appellant was provided a phone to text live messages to his attorney.
Before the child’s testimony began, the district court asked appellant’s attorney:
“Do you believe that your client’s constitutional rights are adequately protected, he’s able
to communicate clearly and timely with you and able to see and hear everything?”
Appellant’s attorney responded: “Yes, Your Honor. Yes, Your Honor.” The district court
3 said: “All right. And the reason that this is being done was covered at the pretrial so that
this child witness would not see [appellant] while testifying.”
The child then testified to living in the same house with appellant and to
accompanying appellant to the basement of the house. The child did not respond to
questions about what occurred in the basement. The child nodded in response to a question
asking if their private area ever hurt. The child did not respond to questions asking the
cause of the pain. Following a break in testimony, the child testified that something
happened in the basement with appellant, that appellant touched the child, that appellant
used his hands to touch the child’s private parts, and that appellant touched the child’s
private parts on both the inside and outside.
On cross-examination, appellant’s attorney asked the child: “You said [appellant]
touched you on the inside. The inside of what?” The child did not respond. On redirect
examination, the child testified that appellant touched their bottom. The state asked, “What
did [appellant] touch the inside of your behind with?” The child responded, “[W]ith his
penis.”
Victim X.C. also testified at trial. X.C. testified that, on two separate occasions,
appellant repeatedly touched X.C.’s private parts over his clothes and kept touching X.C.
after X.C. told appellant to stop. On each occasion, the touching occurred while appellant
and X.C. played hide-and-seek, and appellant told X.C. that if appellant won at “rock,
paper, scissors,” he got to touch X.C. The district court found X.C.’s testimony credible,
and a forensic interview corroborated X.C.’s testimony.
4 Following the conclusion of the trial, and pertinent to this appeal, the district court
found appellant guilty of one count of first-degree criminal sexual conduct with respect to
the child and adjudicated him delinquent, finding that the “limited testimony provided by
[the child] is credible.” In the order concerning victim X.C., the district court found
appellant guilty of two counts of second-degree criminal sexual conduct and adjudicated
him delinquent.
This appeal follows.
ISSUES
I. Did the district court commit plain error requiring reversal by failing to hold a hearing and make findings required by Minn. Stat. § 595.02, subd. 4(c), before permitting the child to testify at trial outside the presence of appellant?
II. Did appellant receive ineffective assistance of trial counsel?
ANALYSIS
Appellant seeks reversal of the district court’s delinquency adjudication, arguing
that the district court violated his right to confront his accuser by allowing the child to
testify outside of appellant’s presence without holding a hearing and making findings under
Minn. Stat. § 595.02, subd. 4(c), that appellant’s presence would psychologically
traumatize the child so as to render the child unavailable to testify. Appellant argues that
this error was plain, that he was prejudiced by this error, and that his trial counsel was
ineffective primarily because counsel did not object to the witness segregation or the
presence of the child’s mother during the testimony. The state agrees that the district court
plainly erred by failing to hold a hearing and make the necessary findings but contends that
any error did not prejudice appellant or affect the fairness or integrity of proceedings and
5 that appellant has failed to carry his burden to establish that his trial counsel was
ineffective. We address each issue in turn.
I. The district court plainly erred by allowing the child to testify outside the presence of appellant without holding a hearing and making the necessary findings, but this error did not affect appellant’s substantial rights or call into question the fairness or integrity of judicial proceedings.
Appellant argues that the district court plainly erred by failing to hold a hearing and
make findings pursuant to Minn. Stat. § 595.02, subd. 4(c), that appellant’s presence would
psychologically traumatize the child so as to render the child unavailable to testify at trial
before permitting the child to testify outside of appellant’s presence. Allowing a witness
to testify at trial outside a defendant’s presence implicates the Confrontation Clause. See
Maryland v. Craig, 497 U.S. 836 (Minn. 1990). The Confrontation Clauses of the United
States and Minnesota Constitutions provide: “In all criminal prosecutions the accused shall
the enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI; Minn. Const. art. 1, § 6; see State v. Holliday, 745 N.W.2d 556, 565 (Minn.
2008) (applying same analysis under both the Minnesota and federal Confrontation
Clauses). “Minn. Stat. § 595.02, subd. 4(c) establishes a permissible exception to the
confrontation clause because it requires a specific finding that the denial of the right to
confrontation is necessary to effectuate an important public policy.” State v. Conklin, 444
N.W.2d 268, 272 (Minn. 1989).
Because appellant’s attorney did not object to the district court’s order permitting
the child to testify outside the presence of appellant without holding a hearing and making
the required statutory findings, we review this issue for plain error. See State v. Rossberg,
6 851 N.W.2d 609, 618 (Minn. 2014); see also State v. Davenport, 947 N.W.2d 251, 260-61
(Minn. 2020) (applying plain-error standard to unobjected-to failure of district court to
comply with duty to instruct requirement of Minn. Stat. § 634.04 (2018)). “In order to
meet the plain error standard, a criminal defendant must show that (1) there was an error,
(2) the error was plain, and (3) the error affected the defendant’s substantial rights.” State
v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016) (citing State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998)). “When the defendant satisfies these requirements, an appellate court may
correct the error only when it seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022).
A. The district court plainly erred because it allowed the child to testify at trial outside of appellant’s presence without holding a hearing and making required findings under Minn. Stat. § 595.02, subd. 4(c).
“An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted). We consider “the law in existence at the time of
appellate review” to determine whether an error is plain. State v. Kelley, 855 N.W.2d 269,
277 (Minn. 2014).
Minnesota law permits a witness who is a victim in a criminal-sexual-conduct case
to testify at trial outside the presence of the defendant if the child is less than 12 years old
and the district court, following a hearing, determines that the defendant’s presence “would
psychologically traumatize the witness so as to render the witness unavailable to testify.” 1
1 We recognize that the statute requires a hearing, but we express no opinion as to the type or form of such a hearing.
7 Minn. Stat. § 595.02, subd. 4(c). The Minnesota Supreme Court has directed that this
statute requires that “in every case it must be established by specific evidence that the
particular witness[] is or would be psychologically traumatized and that traumatization is
substantially caused by the presence of the defendant rather than by other reasons.”
Conklin, 444 N.W.2d at 274. Such evidence “must show more than mere nervousness or
excitement or some reluctance to testify.” Id. (quotation omitted).
We recognize that the district court’s action reflected the agreement of the parties.
Nevertheless, when a district court is faced with a motion to allow a child-witness in a
criminal-sexual-conduct case to testify at trial outside the presence of a defendant,
Minnesota law requires the district court to hold a hearing and make a specific finding
based on evidence in the record that the witness “is or would be psychologically
traumatized and that traumatization is substantially caused by the presence of the defendant
rather than by other reasons.” Id.
“The inquiry to be made by the trial court on this issue will necessarily vary with
each case.” Id. The district court’s finding may be based on the district court’s personal
observations of the witness, but the district court’s finding must be supported by evidence
in the record. Id. The district court may question the witness in camera if necessary and
should take “additional testimony” from others with personal knowledge of the child-
witness. Id. Such testimony should focus on the consequences of the child testifying in
the presence of a defendant. Id. Finally, while expert testimony is not always required, “it
may be necessary in cases where the cause of the child’s testimonial difficulties and trauma
is not clear.” Id.
8 In this case, the district court did not hold a hearing and did not make the requisite
findings. It did not find that appellant’s presence would psychologically traumatize the
witness so as to render the witness unable to testify. It did not consider specific evidence
that the particular witness is or would be psychologically traumatized or that such trauma
would be substantially caused by the presence of appellant rather than other reasons. The
state was prepared to satisfy its burden at the pretrial hearing with testimony from the
child’s therapist, but the district court did not require a hearing or such testimony based on
counsel’s stipulation to permit the child to testify outside of appellant’s presence. Neither
the statute nor our caselaw authorizes a district court to bypass the obligation to hold a
hearing and make these statutory findings by stipulation. Instead, the supreme court has
made clear that “in every case” the district court must make an individualized finding based
on “specific evidence that the particular witness” is or would be psychologically
traumatized and that such traumatization is “substantially caused by the presence of the
defendant” as opposed to other reasons. Id. (emphasis added).
Such case-specific findings are required under Minn. Stat. § 595.02, subd. 4(c), to
enable “a permissible exception to the confrontation clause.” Id. at 272. “Face-to-face
confrontation is ‘the core of the values furthered by the Confrontation Clause.’” Id.
(quoting Coy v. Iowa, 487 U.S. 1012, 1017 (1988)). Yet the confrontation clause “must
occasionally give way to considerations of public policy and the necessities of the case.”
Craig, 497 U.S. at 849 (quotation omitted). Protection of child-witnesses from trauma is
one of these important public-policy considerations. See id. at 855 (“[I]f the State makes
an adequate showing of necessity, the state interest in protecting child witnesses from the
9 trauma of testifying in a child abuse case is sufficiently important to justify the use of a
special procedure that permits a child witness in such cases to testify at trial against a
defendant in the absence of face-to-face confrontation with the defendant.”); see also Coy,
487 U.S. at 1025 (O’Connor, J., concurring) (“The protection of child witnesses is, in my
view and in the view of a substantial majority of the States, just such [an important public]
policy.”). Without an individualized finding that a defendant’s presence during witness
testimony “would psychologically traumatize the witness so as to render the witness
unavailable to testify,” a district court’s decision to allow a witness to testify at trial outside
of a defendant’s presence both runs afoul of the statute and is constitutionally suspect. See
Conklin, 444 N.W.2d at 272-74; see also Coy, 487 U.S. at 1021 (holding that Iowa statute
allowing victim to testify behind screen without an individualized finding of necessity was
unconstitutional). Accordingly, we hold that a district court plainly errs by allowing a
witness to testify at trial outside the presence of a defendant without holding a hearing and
making findings pursuant to Minn. Stat. § 595.02, subd. 4(c), that the defendant’s presence
“would psychologically traumatize the witness so as to render the witness unavailable to
testify.” And here, the district court committed plain error by allowing the child to testify
at trial outside of appellant’s presence without holding a hearing and making the predicate
statutory findings.
B. The plain error did not affect appellant’s substantial rights.
That the district court committed plain error is a necessary, but not sufficient, basis
to warrant reversal. See Rossberg, 851 N.W.2d at 618. To prevail, the plain error must
affect appellant’s substantial rights. Id. Appellant argues that the district court’s error
10 affected his substantial rights because he was deprived of the opportunity to confront his
accuser and that the child’s testimony would have materially differed had appellant’s
confrontation rights been vindicated. We must therefore assess whether the absence of a
hearing and findings pursuant to Minn. Stat. § 595.02, subd. 4(c),—the plain error—
affected appellant’s substantial rights.
“An error affects substantial rights if there is a reasonable likelihood that it
substantially affected the verdict.” Id. (quotation omitted). This is a “heavy burden.” See
id. (quotation omitted). “The court’s analysis under the third prong of the plain error test
is the equivalent of a harmless error analysis.” State v. Matthews, 800 N.W.2d 629, 634
(Minn. 2011). “Unlike a harmless error analysis, the defendant generally bears the burden
of persuasion with respect to the third plain error factor.” State v. Reed, 737 N.W.2d 572,
583-84 (Minn. 2007).
We conclude that there is no reasonable likelihood that the district court’s error in
allowing the child to testify at trial outside of appellant’s presence without first holding a
hearing and making findings pursuant to Minn. Stat. § 595.02, subd. 4(c) substantially
affected the verdict. Appellant argues that “[t]here is a reasonable likelihood that the
witness’s testimony, if delivered in [appellant’s] presence, would have differed in a way
that would have critically affected the judge’s ultimate credibility assessment and,
consequently, the findings of guilt.” But the error here was the district court’s failure to
hold a hearing and make the required statutory findings. Our substantial-rights analysis
therefore considers what would have likely happened if no error occurred, i.e., if the district
court had required the prosecutor to present evidence in support of the motion and had
11 made the required statutory findings. We cannot conclude that there is a reasonable
probability that, had the district court fulfilled its statutory obligation, it would have
directed the child to testify in the presence of appellant. Instead, the record supports a
conclusion that the district court’s decision would likely be unchanged if it held a hearing
and made the required statutory findings, given that the child’s therapist was present and
ready to provide supporting testimony at the pretrial hearing. We therefore conclude that
the plain error did not affect appellant’s substantial rights.
In addition, we are unpersuaded that the child’s testimony in appellant’s presence
would have substantially affected the verdict given the strength of the credited evidence at
trial. See Rossberg, 851 N.W.2d at 618 (concluding that testimony challenged under the
Confrontation Clause was not reasonably likely to have substantially affected the verdict
in light of other evidence on the same subject and other evidence of guilt). We note, as did
the district court, that the child’s forensic interview corroborated the child’s testimony.
During the forensic interview, the child described where, when, and how the child was
touched by appellant. The child’s mother also corroborated the child’s testimony.
Specifically, the child’s mother testified that she took the child to the doctor for testicle
pain, that the child’s behavior changed when their family lived with appellant, and that the
child told her that appellant had touched the child. The district court also found appellant’s
testimony that he had never been alone with the child and had never done anything
inappropriate with the child not to be credible. We give due regard to the trial court’s
assessment of the credibility of witnesses. See Holliday, 745 N.W.2d at 568 (“[I]t is for
the factfinder to evaluate a declarant’s credibility.”).
12 On this record, we are therefore convinced that the district court’s failure to hold a
hearing and make findings pursuant to Minn. Stat. § 595.02, subd. 4(c), did not affect
appellant’s substantial rights. See Rossberg, 851 N.W.2d at 618.
C. The plain error would not cause the public to seriously question the fairness or integrity of judicial proceedings.
Even if we were to conclude that the plain error affected appellant’s substantial
rights, we cannot conclude that the circumstances presented would “cause the public to
seriously question the fairness and integrity of our judicial system.” Pulczinski, 972
N.W.2d at 359; see also State v. Huber, 877 N.W.2d 519, 528 (Minn. 2016) (“[T]he fourth
prong is satisfied only in those circumstances in which a miscarriage of justice would
otherwise result.” (quotation omitted)).
This is not a case in which reversal is required to prevent a miscarriage of justice.
In this case, the child’s therapist was present and available to testify in support of the
request to allow the child to testify outside of appellant’s presence. The only reason the
district court did not receive such testimony or make the statutory findings required under
Minn. Stat. § 595.02, subd. 4(c), is because appellant’s counsel twice stipulated to the
district court’s procedure, agreed to excuse the witness, and expressly acknowledged that
appellant’s constitutional rights were adequately protected. Based on appellant’s
stipulation to allow the child to testify outside of appellant’s presence at trial and counsel’s
acknowledgment of adequate protection of appellant’s constitutional rights, the district
court did not require the state to present evidence regarding the effect of appellant’s
presence on the child or make the required statutory findings. And the remaining evidence
13 at trial supported the verdict. Because appellant was aware of and stipulated to the manner
in which the evidence was received, the procedure used in this case would not cause the
public to reasonably question the fairness or integrity of judicial proceedings.
II. Appellant has not met his burden to establish that his trial counsel was ineffective.
Appellant also seeks reversal of the adjudication of delinquency on the basis that
his trial counsel was ineffective. We examine claims of ineffective assistance of counsel
under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). State
v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017) (citing Andersen v. State, 830
N.W.2d 1, 10 (Minn. 2013)). “Under the Strickland test, [appellant] must demonstrate that
(1) his counsel’s performance fell below an objective standard of reasonableness, and
(2) that a reasonable probability exists that the outcome would have been different but for
counsel’s errors.” Andersen, 830 N.W.2d at 10. “We need not address both the
performance and prejudice prongs if one is dispositive.” Id.
Appellant argues that his counsel’s performance fell below an objective standard of
reasonableness based on the collective impact of the following: trial counsel’s (1) decision
not to object to the state’s motion to allow the child to testify outside the presence of the
appellant; (2) decision not to object to the presence of the child’s mother during the child’s
testimony; (3) decision not to object to certain “hearsay testimony”; and (4) allegedly
“inadequate” trial preparation. Most of the instances of trial counsel’s allegedly
unreasonable conduct constitute trial strategy. See Leake v. State, 737 N.W.2d 531, 542
(Minn. 2007) (“Decisions about objections at trial are matters of trial strategy.”); State v.
14 Tiessen, 354 N.W.2d 473, 477 (Minn. App. 1984) (“There is no merit to the suggestion of
ineffective counsel simply because counsel failed to request sequestration of [the state’s]
witnesses.”), rev. denied (Minn. Nov. 7, 1984); Opsahl v. State, 677 N.W.2d 414, 421
(Minn. 2004) (“The extent of counsel’s investigation is considered a part of trial strategy.”).
And “[w]e will generally not review an ineffective-assistance-of-counsel claim that is
based on trial strategy.” Andersen, 830 N.W.2d at 10; Boitnott v. State, 631 N.W.2d 362,
370 (Minn. 2001) (“[W]e have stated that the level of investigation and whether to object
are matters of trial strategy that the court will generally not review.”). Thus, appellant has
not met his burden to establish that counsel’s representation fell below an objective
standard of reasonableness.
And even assuming that counsel’s decision to stipulate—and not object—to the
district court’s procedure allowing the child to testify outside of appellant’s presence fell
below an objective standard of reasonableness, appellant does not argue and has not
otherwise met his burden to establish a reasonable probability that the outcome would have
been any different based on counsel’s performance in this regard.
DECISION
We hold that a district court plainly errs by allowing a witness to testify at trial
outside the presence of a defendant without holding a hearing and making the necessary
findings pursuant to Minn. Stat. § 595.02, subd. 4(c), that the defendant’s presence “would
psychologically traumatize the witness so as to render the witness unavailable to testify.”
The district court plainly erred by allowing the child to testify at trial outside the presence
of appellant without holding a hearing and making the required statutory findings. But we
15 conclude that reversal of the district court’s delinquency adjudication is not warranted
because the plain error did not affect appellant’s substantial rights or reasonably call into
question the fairness or integrity of judicial proceedings. Finally, appellant failed to meet
his burden to establish ineffective assistance of counsel.
Affirmed.