This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Lonzell Lavoun Hines,
Ramsey County District Court
File No. KX961425
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.
Appellant Lonzell Hines challenges the trial court’s execution of his previously stayed sentence. Because there is ample evidence to sustain the trial court’s exercise of discretion, we affirm.
In June 1996, appellant was convicted of second-degree criminal-sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1996), for engaging in sexual contact with his stepdaughter, who was under 13 years of age. Pursuant to a plea agreement, the sentencing court stayed execution of a 21-month sentence for five years, provided that appellant (1) remain law-abiding; (2) serve five months in the Ramsey County Correctional Facility; (3) have no contact with the victim; (4) obtain no employment that requires supervisory responsibilities for children under the age of 18; (5) follow the recommendations of his probation officer and the sex-offender evaluation regarding treatment or aftercare; (6) submit to DNA testing; (7) pay a fine of $105 plus court costs; and (8) register as a sex offender with the local police department pursuant to Minn. Stat. § 243.166 (1996).
Four years later, in April 2000, appellant’s probation officer acquired information that appellant had been having ongoing contact with the victim. Appellant’s former wife, who said that she feared appellant was a threat to her own safety, insisted that appellant had been in contact with the victim. The victim confirmed that appellant had been in contact with her on various occasions since his conviction and stated that she was fearful of him. Appellant admitted to having been to his ex-wife’s residence but denied having contact with the victim.
At the violation hearing, the therapist from appellant’s treatment program testified that appellant had been terminated from the program for various reasons, including reports that he had deceived his therapist and had been in frequent contact with the victim. Appellant’s brother confirmed that he and appellant had gone to the former wife’s residence on various occasions and that he usually waited in the car while appellant went inside. But the former wife and the victim denied having made the earlier statements that were attributed to them by the therapist and probation officer and maintained that appellant had not been in contact with the victim.
The trial court found that appellant violated conditions of the stay and that he was no longer suitable for treatment in the community. The court vacated the stay and ordered execution of the 21-month sentence.
A trial court may revoke a probationary stay if it finds clear and convincing evidence that the defendant has violated conditions of the stay. 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 revoking, the trial court must (1) “designate the specific 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.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). If the trial court includes these findings in its decision to revoke probation, unless the court has clearly abused its discretion, this court will not reverse the trial court’s decision. Id. at 249-50.
There is clear and convincing evidence that appellant violated conditions of his stay. The trial court specifically addressed the credibility of witnesses and found that the evidence proved beyond a reasonable doubt that contacts between appellant and the victim had occurred. See State v. Spanyard, 358 N.W.2d 125, 127 (Minn. App. 1984) (stating that the trial court is the fact-finder in a stay-revocation hearing and is charged with weighing the credibility of the witnesses), review denied (Minn. Feb. 27, 1985).
Although the trial court did not specifically state that appellant “intentionally and inexcusably” violated the no-contact order, the terms of the order were clear and there is no showing that appellant made any attempt to avoid visiting his former wife’s home when the victim would be present.
The court also found that appellant violated the requirements of his treatment program. Appellant questions whether the evidence shows that he intentionally violated the program requirements. Although the record indicates that appellant was involuntarily terminated from the program, his pattern of deceit is adequate to show that he was acting intentionally. See State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995) (stating when the trial court fails to make the three Austinfindings, the appellate court may still affirm the revocation “provided that there is sufficient evidence in the record to support the necessary findings” (citations omitted)). Appellant also contends that the evidence showed there was a “good chance” he could reenter the treatment program if he were cleared of the no-contact violation. But this argument is irrelevant, as appellant was found to have violated the no-contact order.
Finally, the record permits the trial court’s conclusion that appellant is no longer suitable as a candidate for probation. Appellant claims that the need shown for confinement—his contact with the victim—could be remedied through outpatient treatment. But his continued contact with the victim is adequate to show that he is a danger to public safety, especially in light of his deceitful practices. See Austin, 295 N.W.2d at 251 (stating hesitancy in revoking probation can be overcome by a finding that “confinement is necessary to protect the public from further criminal activity” (quotation omitted)).