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STATE OF MINNESOTA IN COURT OF APPEALS A10-692 State of Minnesota, Respondent, vs. Daniel Thomas Infante, Appellant. Filed April 19, 2011 Affirmed in part and remanded Schellhas, Judge Itasca County District Court File No. 31-CR-09-1848 John J. Muhar, Itasca County Attorney, Grand Rapids, Minnesota; and Lori Swanson, Attorney General, Kimberly R. Parker, Assistant Attorney General, St. Paul, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Shumaker, Presiding Judge; Hudson, Judge; and Schellhas, Judge. SYLLABUS 1. If the district court excludes individuals from the courtroom without meeting the

four-part test set forth in Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984), remand is appropriate to allow the district court to comply with Waller.

2.

The district court need not instruct the jury that it must unanimously agree on

which of two physical acts constitutes an assault if the two acts are part of a single behavioral incident. OPINION SCHELLHAS, Judge Following his conviction of second-degree assault, appellant argues that he was denied his right to a public trial when his sister and a young child were removed from the courtroom during the state`s closing argument. Appellant also argues that the district court plainly erred by failing to instruct the jury that it must unanimously decide which of two physical acts constituted the charged assault, if either. Because the two alleged acts were part of a single behavioral incident and did not constitute distinct instances of an element of the charge, we conclude that a unanimity instruction was not necessary. But because the court failed to comply with Waller, 467 U.S. at 48, 104 S. Ct. at 2216, when excluding appellant`s sister and the young child from the courtroom, we remand for compliance with Waller. FACTS Respondent State of Minnesota charged appellant Daniel Infante with one count of second-degree assault in violation of Minn. Stat.

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