This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-37

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Scott Meagher,

Appellant.

 

 

Filed July 31, 2001

Affirmed

Halbrooks, Judge

 

Stearns County District Court

File No. K7962265

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Roger S. Van Heel, Stearns County Attorney, Will R. Brost, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            This appeal is from an order revoking probation.  Appellant Jeffrey Scott Meagher admitted to certain violations of the conditions of his probation while disputing others.  Appellant argues that the state failed to prove by clear and convincing evidence that he intentionally or inexcusably violated terms of his probation and that the district court erred by finding that the need for confinement in prison outweighs policies favoring probation.  Because the evidence supports the finding of probation violations and the district court acted within its discretion, we affirm.

FACTS

            On October 4, 1996, appellant pleaded guilty to criminal sexual conduct in the first degree involving a five- to seven-year-old girl, the daughter of a woman with whom appellant was intimately involved.  He was sentenced to 86 months, with execution stayed, and placed on probation for up to 25 years.  This sentence constituted a downward dispositional departure from the presumptive commitment indicated by the Minnesota Sentencing Guidelines. 

The terms and conditions of probation included, among other things, that appellant (1) have no contact with any children under the age of 18 without prior approval from his supervising probation agent, (2) maintain complete abstinence from the use of alcohol or other mood-altering substances, (3) complete sex-offender therapy and any aftercare as directed, and (4) serve one year in the county jail.  Respondent’s agreement to the terms and conditions was based in large part on appellant’s apparent amenability to treatment, documented by appellant’s counselor, Frank Weber, M.S., a licensed psychologist with Community Offender Rehabilitation and Education (CORE).

            Appellant was convicted of gross misdemeanor driving while impaired on May 3, 2000.  Appellant’s probation officer, Larry Falk, recommended that no action be taken by the court, as appellant had entered chemical-dependency treatment and restarted sex-offender treatment as directed by Falk and Weber.  The court followed this recommendation.  But in the course of his treatment, appellant revealed that he had begun a relationship with a woman who has children and that they had come to his house in the middle of the night on one occasion.  As a result, appellant’s probation officer and therapist recommended revocation of his probation.

A hearing was held October 10, 2000.  Appellant’s probation was revoked, based on his failures to complete sex-offender treatment as directed, abstain from alcohol, remain law abiding, and avoid contact with children under the age of 18 without prior approval.  Appellant was committed to the commissioner of corrections for 86 months.  This appeal follows. 

D E C I S I O N

I.

            The trial court has broad discretion in determining whether sufficient evidence exists to revoke probation.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Such a determination will only be reversed if there is a clear abuse of that discretion.  Id. 

            In making its determination whether to revoke probation, the 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 need for confinement outweighs the policies favoring probation. 

 

Id. at 250.  Here, the district court made the required findings.

            Probation violations must be proven by clear and convincing evidence.  State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).  We will not disturb the district court’s findings unless they are without support in the record and are, therefore, clearly erroneous.  Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (citing Minn. R. Civ. P. 52.01), review denied (Minn. Sept. 5, 1997). 

            At his revocation hearing, appellant admitted to consuming alcohol on more than one occasion, and to contact with children under 18 years old without prior approval.  These violations of the terms of his probation agreement are undisputed. 

            Appellant disputes the allegation that he failed to complete the required sex-offender treatment.  He argues that Falk and Weber’s directive that he resume sex-offender treatment following the DWI, after having completed primary and aftercare programs, was not properly a condition of his probation.  Respondent does not dispute appellant’s claim to having completed the initial treatment and aftercare that was mandated by appellant’s probation agreement.  But under the original sentencing order, appellant was required “to complete any aftercare or other treatment as directed by his counselors and/or probation agent.”  Thus, failing to complete additional treatment as directed amounts to a violation. 

            Appellant did re-enter the sex-offender treatment program at the direction of his probation officer and his therapist following the DWI conviction.  But Falk testified at appellant’s revocation hearing that Falk had been informed by Weber that appellant had disavowed treatment because appellant felt he no longer needed to remain in therapy.  Falk further testified that appellant had been consuming alcohol on a regular basis, that appellant had admitted to contact with an adult woman who has minor children, and that appellant had been to her home while the children were present.  Falk also testified that appellant admitted that the woman and her children had come to his home and that he had allowed them to sleep there for a few hours.  Finally, Falk testified that he felt appellant was a public safety risk, given his use of alcohol and his contact with minors. 

Weber confirmed Falk’s testimony that appellant had admitted during therapy to repeated contact with the children of a woman with whom he had a relationship.  Weber had contacted the woman, who confirmed that appellant had been over to her trailer.  Weber testified that he was concerned that appellant could be in the process of setting up the children for another offense.  Appellant was counseled by Weber to have no more contact with the woman because she had children, but appellant ignored the recommendations.  In Weber’s opinion, appellant had “abandoned the whole idea of making a commitment to change” and was “a significant risk to reoffend.”  Like Falk, Weber testified that appellant was no longer amenable to treatment, and that he considered appellant to be “a danger to the community.” 

            Appellant argues that his original plea agreement did not include a provision that he remain “law abiding.”  Appellant further contends that the court could have sentenced him to additional probationary jail time as an alternative to executing his 86-month sentence.  Whether or not a requirement to remain law abiding was part of appellant’s plea agreement, and whether, in its discretion, the court could have added additional probationary jail time beyond the one year permitted by Minn. Stat. § 609.135, subd. 4 (2000), the evidence supports the court’s conclusion that appellant violated the terms of his probation agreement. 

Once a trial court finds a probation violation, it must determine whether the “need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  On this issue, the testimony of Falk and Weber that appellant is no longer amenable to treatment and poses a public safety risk was unrebutted.  The record supports the district court’s findings and conclusions that appellant had multiple probation violations, that the violations were intentional and inexcusable, and that appellant presents a danger to the community.  Therefore, the district court’s determination to revoke appellant’s probation was well within its discretion. 

            Affirmed.