This opinion will be unpublished and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

C3-03-299

 

 

State of Minnesota,

Respondent,

 

vs.

 

Norman Allison Scott,

Appellant.

 

 

Filed July 1, 2003

Affirmed

Robert H. Schumacher, Judge

 

Martin County District Court

File No. K201529

 

 

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

 

Terry W. Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031-3899 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

On appeal from an order revoking his probation for intentionally violating the condition that he have no contact with children under the age of 16, appellant Norman Scott argues that the district court abused its discretion by revoking his probation based on a single violation because the policies in favor of probation outweigh the need for confinement. The districtcourt did not abuse its discretion. We affirm.

FACTS

In October 2001 Norman Scott pleaded guilty to one count of terroristic threats in violation of Minn. Stat. 609.713, subd. 1 (2000). The district court stayed execution of a 28-month prison sentence and placed Scott on probation for five years. As a condition of probation, the court required Scott to have no contact with children under the age of 16.

In November 2002, the state filed a probation-violation report alleging that Scott had been in contact with two children under the age of 16. The evidence at a contested revocation hearing showed that Scott contacted two children, ages 4 and 6, at his grandniece's house, in the presence of his grandniece. Scott admitted that he had visited the house before, sometimes as often as once a week.

The district court revoked Scott's probation, finding that Scott was a "mental[ly] unstable person who [did] not belong with children," and that despite repeated warnings, he had contacted children under the age of 16.

D E C I S I O N

A district court may revoke probation when the evidence shows that the probationer intentionally violated a specific condition of probation and that the need for confinement outweighs the benefits of probation. State v. Austin 295 N.W.2d 246, 250 (Minn. 1980). The decision to revoke probation is within the district court's broad discretion and will not be reversed absent a clear abuse of that discretion. Id. at 249-250.

Scott admits he violated a condition of probation by having contact with two children under the age of 16. Relying on the sentencing guidelines, however, he argues that the execution of his sentence was an extreme response to a single, technical violation of probation and that, rather than revoking his probation, the court should have imposed more onerous probationary conditions. See Minn. Sent. Guidelines III.B (stating that revocation of a stayed sentence and commitment to the department of corrections is appropriate when "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating the conditions of the stay"); id. III.B.01 (urging courts to exercise "great restraint * * * when considering increasing the severity of the sanction based upon non-criminal technical violations of probationary conditions"). Scott also argues imprisonment was unnecessary because he was being helped by probation and the state did not establish that he was a threat to the community. We disagree.

Although not a crime in itself, Scott's contact with the young girls at his grandnieces' house was not merely a technical violation of his probation. Given the nature of the underlying offense (terrorizing a child under the age of ten), the requirement that he have no contact with children was at the heart of his probationary agreement. The importance of the condition would have been diluted had the court not revoked Scott's probation after he admitted that he visited his grandniece's house repeatedly. See Austin, 295 N.W.2d at 251 (stating court should order revocation and imprisonment if condition of probation is violated and nonrevocation would "unduly depreciate the seriousness of the violation"). However benign the contact may have been, it was inexcusable and it violated an essential probationary condition.

Scott's admission that he visited his grandniece's house on multiple occasions, despite repeated warnings not to have contact with children, shows Scott is a risk to public safety and the need for confinement outweighs any benefits he might derive from continued probation. Although Scott claims that more onerous probationary conditions would adequately protect public safety, on this record we cannot say the district court abused its discretion by concluding otherwise.

Affirmed.