This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-905

 

State of Minnesota,

Respondent,

 

vs.

 

Donyale D. Gayles,

Appellant.

 

Filed January 8, 2001

Affirmed

Willis, Judge

 

Olmsted County District Court

File No. K0971695

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and

 

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 4th Street S.E., Rochester, MN† 55904 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN† 55414 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge, Forsberg, Judge,* and Holtan, Judge.**


U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Appellant challenges the district courtís order revoking his probation and executing a 72-month sentence.† Because the district court did not abuse its discretion, we affirm.

FACTS

††††††††††† Appellant Donyale Gayles was convicted of first-degree burglary and second-degree assault in 1997 and fifth-degree assault in 1998.† His sentences for these incidents included jail time and probation.† Upon his release from jail in 1999, Gayles was assigned to probation officer Gail Henderson.† He requested a transfer of his probation to Illinois.† While the request was pending, Henderson issued Gayles a three-day permit to travel to Chicago for Christmas.† The same day that Gayles received the permit from Henderson, the probation office in Illinois faxed Henderson an emergency-reporting-instructions form, which would allow Gayles to move to Illinois while Illinois investigated his transfer request.† Before Gayles moved, Henderson explained to him that he would continue to be on probation in Olmsted County until Illinois approved his transfer and that he was to contact her if (1) he changed his address or phone number, (2) he changed employment, or (3) he traveled.† Gayles was also required to let her know of his probation arrangements with the State of Illinois.

At his probation-revocation hearing, Gayles testified that he notified Illinois authorities of his move to that state within 24 hours of his arrival, as he was required to do.† Henderson testified that after Gayles left for Illinois, she attempted unsuccessfully to contact him by telephone.† She finally reached Gaylesís mother in Minnesota by telephone and asked her to tell Gayles that his probation officer in Minnesota was trying to contact him.† Gayles did not contact Henderson; he testified that he thought Olmsted County had ďlost interestĒ in his case.†

Henderson also testified that after his arrival in Illinois, Gayles was assigned to a probation officer, Luther Rivers, who told Henderson that he had attempted to call Gayles several times but had been unable to reach him.† She further stated that Rivers sent a letter to Gaylesís address in Chicago, notifying him that a February 7 probation meeting had been scheduled.† Gayles failed to attend that meeting.† Shortly thereafter, Henderson received word that Gayles had traveled to Minnesota from Chicago without notifying her.† An apprehension order was immediately issued, and the Rochester police arrested him.†††

Henderson testified that Gayles violated his probation by failing (1) to maintain contact with his probation officer and (2) to abstain from drug use.† Gayles testified that his failure to contact Henderson was the result of a simple misunderstanding. The district court revoked Gaylesís probation, and Gayles appealed.

D E C I S I O N

††††††††††† The district court has broad discretion in deciding whether to revoke probation and this court will reverse only if there has been a clear abuse of that discretion.† State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).† To justify a revocation of probation, the district court must find clear and convincing evidence that a defendant violated the conditions of his or her probation.† Minn. R. Crim. P. 27.04, subd. 2(1)(b); State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).† Before probation can be revoked, the district court must (1) specify the condition or conditions that were violated, (2) find that the violation was intentional or inexcusable, and (3) find that the need for confinement outweighs the policies favoring probation.† Austin, 295 N.W.2d at 250.

††††††††††† Gayles argues that the district court abused its discretion by revoking his probation for minor violations.† The district court determined that two of the Austin factors had been satisfied, finding that Gayles had intentionally and inexcusably violated the conditions of his probation by failing to maintain contact with his probation officer and by using drugs.† The record supports the district courtís findings.

The district court did not, however, make a specific finding that the need to confine Gayles outweighs the policies favoring probation.† But a reviewing court may nevertheless affirm the district courtís revocation, provided that there is sufficient evidence in the record to support the necessary findings.† State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996) (citing Austin, 295 N.W.2d at 250); see also State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995) (holding that although district court did not make express findings, testimony indicated that defendantís violations of probation were intentional and that need for confinement outweighed policies favoring probation, such that district court did not abuse its discretion in revoking probation).

Courts must balance the probationerís interest in freedom and the stateís interest in public safety and insuring the probationerís rehabilitation.† Austin, 295 N.W.2d at 250.† A decision to revoke probation requires a showing that the offenderís behavior demonstrates that he cannot be counted on to avoid ďantisocial activity.Ē† Id. at 251 (quotation omitted).† Grounds for revocation can include a finding that, on the basis of the original offense and the intervening conduct, failure to revoke probation would denigrate the seriousness of the probation violation.† Id.

The court explained to Gayles that it was revoking his probation in part due to the

new violations, but [also] on the basis of the severity of the [original] offense, the fact that this was at the outset a dispositional departure that gave you a chance to toe the mark and thereís been a failure to do that.

 

In deciding to revoke Gaylesís probation and execute his sentence, the district court expressed concern that Gayles would be unable to abstain from using drugs or alcohol outside of a prison setting.† At the revocation hearing, Gayles admitted that during his probation he had used and tested positive for marijuana.† In fact, Henderson told the court that while Gayles was free on bail during the week between the probation-revocation hearing and the disposition hearing, he again tested positive for marijuana, indicating usage between the two hearings.† The court also considered testimony that Gayles failed to submit to the urinalysis required by the apprehension order.†

Gayles maintains that his minor infractions do not warrant the execution of his sentence.† But the district court concluded that failure to revoke probation here would denigrate the seriousness of the offenses for which he was convicted, and we agree.† Gaylesís repeated failure to abide by the conditions of his probation demonstrates that the policies favoring probation are outweighed by the need to confine him.†

The record here supports the findings required by Austin.† The district court did not abuse its discretion in revoking Gaylesís probation and executing his sentence.

Affirmed.



††††††††††††††† *  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

 

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.