This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 8, 2003
Cass County District Court
File No. K7940753
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Earl E. Maus, Cass County Attorney, Cass County Courthouse, P.O. Box 3000, Walker, MN 56484 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.
GORDON W. SHUMAKER, Judge
Appellant Frank Ornelas was convicted of third-degree criminal sexual conduct, sentenced to a stayed 48-month-prison term, and placed on probation. The district court revoked Ornelas’s probation after finding that he violated a condition of his probation when he had unsupervised contact with a minor female. Ornelas challenges his probation revocation because he argues that his violation was unintentional and was only a “minor slip” that should not result in imprisonment. Because the district court did not abuse its discretion when it revoked Ornelas’s probation, we affirm.
In 1994, appellant Frank Ornelas pleaded guilty to third-degree criminal sexual conduct, admitting that he forcibly penetrated an adult female’s vagina with his finger and without her consent. The district court imposed, but stayed, a 48-month prison term and placed Ornelas on probation.
Among Ornelas’s probationary conditions were that he not consume alcohol, not possess firearms, and not have unsupervised contact with minor females. Ornelas violated the alcohol restriction three times, in 1997 and 2000, and the firearm restriction in 2000. After each violation the district court continued Ornelas’s probation.
On June 24, 2002, Ornelas’s probation officer saw Ornelas come out of his house with his fiancée, her 16-year-old daughter, and the daughter’s boyfriend. The probation officer went into the house with Ornelas and saw the daughter’s belongings in a bedroom. Although Ornelas explained that he was merely storing the daughter’s belongings, the probation officer observed that everything was unpacked and the bedroom appeared to be lived in.
Ornelas’s fiancée stated that her daughter and the boyfriend had come to give her a ride because her car had a flat tire and that Ornelas had arrived home just as everyone was leaving.
Ornelas admitted that he had been in the house for about ten minutes while the daughter was there. He acknowledged that he was not to have unsupervised contact with a minor. He stated that he asked the daughter to leave and chose to stay in the house until she did so.
Finding that Ornelas violated his probation for a fifth time, the district court revoked the probation. Ornelas appeals.
The district court has broad discretion when revoking probation. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). We will reverse the district court’s revocation “only if there is a clear abuse of that discretion.” Id. (citation omitted). The district court must do three things before it can properly revoke a defendant’s probation:
(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.
The district court found that Ornelas had violated a condition of his probation that he not have unsupervised contact with a minor. Ornelas admitted that he was in his house with his fiancée’s minor daughter for “about ten minutes.” Because of this admission, we conclude that the district court did not abuse its discretion when it found that Ornelas had violated a condition of his probation.
The second factor is that the violation was “intentional or inexcusable.” Id. The district court did not make this specific finding, but it is not an abuse of discretion for the district court to revoke probation without making each specific finding if “the record contains sufficient evidence to warrant the revocation.” State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995) (citing Austin, 295 N.W.2d at 250), review denied (Minn. July 20, 1995).
Ornelas contends that he did not intentionally violate his probation since the minor was at his house only because she had come to help her mother. However, there is sufficient evidence that Ornelas intentionally violated his probation. He testified that even though he knew he was prohibited from having any unsupervised contact with a minor, he chose to stay in the house until the minor left. We have previously held that a violation was intentional when the defendant knew he was beyond the limitations of his probation. See, e.g., State v. Xiong, 638 N.W.2d 499, 503 (Minn. App. 2002) (holding that a defendant intentionally violated his probation condition of avoiding gang contact when he went to his girlfriend’s house “where he could expect gang members to visit”), review denied (Minn. Apr. 16, 2002); Theel, 532 N.W.2d at 267 (holding that there was sufficient evidence that the defendant’s probation violation was intentional since his testimony showed that he knew he was beyond the limitations of his driving privileges when he was caught driving for purposes other than for his employer). Thus, we conclude that Ornelas’s violation was intentional.
The last factor is that the need for confinement outweighs the policies favoring probation. In addressing this factor, we note the purpose of probation and the basis for revocation:
The purpose of probation is rehabilitation and revocation should be used only as a last resort when treatment has failed. * * * The decision to revoke cannot be “a reflexive reaction to an accumulation of technical violations” but requires a showing that the “offender’s behavior demonstrates that he or she ‘cannot be counted on to avoid antisocial activity.’”
Austin, 295 N.W.2d at 250-51 (citations omitted). Among the grounds that courts should consider when weighing the need for confinement versus probation is that “it would unduly depreciate the seriousness of the violation if probation were not revoked.”
Id. (quotation omitted).
Ornelas argues that he should remain on probation because he had only a few “minor slips” and he maintained employment during his seven years of probation. He also contends that the district court improperly reacted to his cumulative violations, but not to this specific violation.
We conclude that the district court properly found that Ornelas’s violation was serious because he had unpermitted contact with a minor female and because he had been convicted of a sex crime with a female. Ornelas’s probation officer testified that on numerous occasions she had told Ornelas that he was prohibited from having unsupervised contact with a minor without the officer’s permission and that it was an ongoing issue with Ornelas. The probation officer was also concerned that there was no one there to protect the minor from victimization. This violation is even more serious if the minor was in fact living at Ornelas’s house.
Furthermore, Ornelas’s continual probation violations show that probation was not succeeding and that he was resistive to rehabilitation. This court has held that a defendant’s “failure to follow the court’s order despite repeated warnings indicates that the probation was not succeeding.” Theel, 532 N.W.2d at 267 (holding that the defendant’s failure to pay restitution after being ordered to and warned in writing on two occasions showed that the need for confinement outweighed policies favoring probation). We have also concluded that
repeated failure to abide by the conditions of [the defendant’s] probation provided a sufficient basis for the district court to conclude that [the defendant] was unwilling to be rehabilitated, and therefore that the policies favoring probation are outweighed by the need for confinement.
State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002).
This was Ornelas’s fifth probation violation. The district court did not execute his sentence during the previous four violations, but instead gave Ornelas longer jail stays, which did not dissuade Ornelas from continuing to violate. We conclude that allowing Ornelas to remain on probation would unduly depreciate the seriousness of his unsupervised contact with a minor and that the district court did not abuse its discretion by revoking his probation.
Randall, Judge (dissenting).
I respectfully dissent. I suggest the record is clear that the violation was unintentional and excusable and that, most importantly, under the Austin factors, the record is devoid of support for a finding, on these facts, that there was any need for a four-year term of imprisonment in a state penitentiary weighed against Minnesota’s policy favoring probation. As the majority correctly notes, we are both looking at State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). Both the majority and this dissent are looking at the same facts and the same law. We just come to a different conclusion. I am going to enlarge on the facts to show how de minimis this claimed violation was.
The present probation violation occurred when Ornelas’s probation officer, Mary Hoglund, arrived at his house and found Ornelas “in contact” with a minor without supervision. On June 24, 2002, Hoglund went to Ornelas’s residence. Hoglund saw Ornelas walk out of his house along with three other people; Brenda Ornelas, his fiancée, L.H., Brenda’s sixteen-year-old daughter, and Jesse Bahner, L.H.’s 19-year-old boyfriend. Ornelas and Brenda had moved into the house the previous weekend. Hoglund testified that she told Ornelas on numerous occasions that he was prohibited from having unsupervised contact with a minor without her permission because it was an ongoing issue with Ornelas.
Hoglund saw L.H. and Jesse drive away from the house. Ornelas came up to the car to talk with Hoglund. Hoglund asked to see the inside of his house and Ornelas told her that L.H.’s belongings were inside the house because he and Brenda were storing them. Hoglund entered the house and Ornelas showed Hoglund the room that contained L.H.’s belongings. Hoglund testified that all of the L.H.’s things appeared to be unpacked, there was a cigarette with cigarette butts next to the bed, the window was open, there was a pack of cigarettes next to the bed, and the room appeared to be lived in. Hoglund testified that she did not see any boxes in the room, that objects were on the wall, and that there were belongings placed around the room as though someone had unpacked them. Hoglund told Ornelas that it appeared to her that L.H. was living there and that Brenda was not an approved supervisor. Hoglund designated who could be a supervisor. Then, she arrested him.
Brenda testified that L.H. and Jesse were at the house because Brenda had a flat tire. She had asked them to pick her up so that she could get another tire on the car. Brenda, L.H., and Jesse dropped the tire off at a repair shop and when they came back to get the tire the shop was closed, so L.H. and Jesse brought Brenda back to Ornelas’s house. Brenda testified that she was trying to get L.H. out of the house before Ornelas came home because she knew that L.H. was not supposed to be there when Ornelas arrived. Brenda also stated that L.H. was not living there, but that L.H. and Jesse would come over while Ornelas was at work and then leave before Ornelas returned home. She said that L.H. lived with her grandmother, Kathleen Collins, which Collins also confirmed during her testimony. Brenda testified that L.H. was in the process of leaving when Ornelas arrived and that L.H. had only been in the house for “about ten, fifteen minutes” after Ornelas came home.
L.H. testified that she was living with Collins and that she had never stayed overnight in Ornelas’s house. She stated that she would only visit Brenda for a few hours, and that visit would only take place during the day while Ornelas was at work. She confirmed that she had unpacked a dress, one that she wore years ago while attending a wedding. L.H. testified that she had only been in the house with Ornelas for about five minutes while she gathered her stuff to leave for Collins’s house.
Jesse testified to the same facts as stated above. He said that L.H. and Ornelas had been in the house together for about ten minutes before L.H. left. He stated that he never picked up L.H. from Ornelas’s house. He testified that L.H. stored her stuff there and that they would leave when they saw Ornelas’s vehicle coming down the road. He did say that he had met Ornelas two months before the incident and had talked to him at his home. Ornelas admitted that he was in the house for about ten minutes while L.H. was there. L.H. was in the process of leaving at that time. He admitted that he was aware of the no contact provision in his probation order and that he had asked L.H. to leave. Ornelas stated that he did not call home from work that day, but that he normally called home before leaving work to make sure that L.H. had left the house. He testified that he knew that either he or L.H. had to leave the house.
Following this testimony, the district court found that Ornelas admitted through his testimony that he was “with a minor without an approved supervisor.” Id. at 26. Hoglund recommended that the court execute Ornelas’s sentence because “it’s his fifth violation and I don’t see him following the rules that the Court set forth.” Id. at 27. L.H. was in the process of leaving, and at all times she was with her mother and her boyfriend. Nothing was attempted by appellant, nothing ever happened.
It is clear that Probation Officer Hoglund did not like appellant nor trust him. The trial court record has some allegations and “dark inferences” about appellant and his fiancée’s 16-year-old daughter. There is absolutely nothing in the record to document any such inference. As I set out in the facts, there was direct testimony from appellant, Brenda, appellant’s fiancée and the mother of L.H., Jesse Bahner, L.H.’s boyfriend, and L.H., giving an accounting for each and every unfavorable spin that Hoglund tried to put on the facts she saw on her visit. After all those people testified on behalf of appellant, the record shows the state was not able to refute anything anyone said on appellant’s behalf as to why he happened to be in the same general area in his own home as L.H. for about 10 to 15 minutes. There is not one shred of evidence in the record that at that time or previously appellant had tried to “hit on” L.H. On the occasion at issue, her mother and her 19-year-old boyfriend were present and neither saw anything untoward about appellant’s short presence nor indicating any fear “that something might happen.”
The condition “no unsupervised contact with minor females” is totally subjective and, thus, has to be subject to the rules of common sense and logic. What does “unsupervised contact” mean? Is appellant forbidden during the length of his probation from ever going into the Mall of America or Southdale or Brookdale where young women under the age of 18 make up a significant percentage of the targeted shoppers? What does appellant do if he is in a hotel elevator or on an escalator and suddenly he is surrounded by members of a high-school girls’ basketball, volleyball, soccer, track and field, tennis team, etc. going from one floor to another? Does he push through them and knock them over to get off the elevator or the escalator! Does he proclaim loudly to any adult within hearing distance, “Now look at me, I am only here by accident. I had no idea these young girls would be in this same place. I want you to know that it is their idea to be in the same area as me and it is not my idea to be in the same area as them!”
Appellant got violated not for what he did this time, which should be the issue. He got violated and sent to prison for four years because this is his fifth violation, counting three previous alcohol violations, in the last five years and one firearms violation. The probation officer and the court were direct and with candor indicated their “displeasure” with appellant’s repeated violations. I can only point out, “so what.” Every one of the previous four was, in the eyes of a judge at that time, so minor that his probation was not revoked.
This violation belongs in the same category as the previous four. In examining the previous four violations, it is significant to me that when balancing them against sending appellant to prison for four years, none of those violations apparently involved any independent crime or violation of the traffic laws. They simply appear to be “consumption” violations when he was not supposed to drink. The same for the “firearms restriction violation.” There is nothing in the record to indicate that he was charged with, much less convicted of, being felon in possession of a weapon. It is just something called a “firearms restriction violation.” I know with certainty that if any of the four previous violations had any egregious facts and a concomitant crime associated with them, the state would have brought that out in full force and liberally sprinkled the record. Since the state did not, it is a fair assumption that no egregious facts exist.
The district court judge had several options short of executing the two sentences. The argument that previous sanctions “weren’t working” is not supportable. As the majority concedes, his four previous violations had nothing to do with unsupervised contact with young females. Since 1994, when appellant went on probation, he has had “zero” violations for unsupervised contact with minor females.
I can understand the human response of the probation officer and the district court in believing that appellant has a bad attitude and doesn’t jump through the hoops every time the probation officer cracks a whip. But before you imprison a man or a woman in Minnesota for four years, fundamental fairness demands that they have done something worth four years. On these facts, no one can say with a straight face that appellant’s brief time in his own home, in the presence of other adults, and where absolutely nothing happened, justifies four years in prison.
I dissent, and would reverse and remand to the district court to continue appellant’s probation with whatever additional conditions or warnings the court deems appropriate.