This opinion will be unpublished and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

A03-1217

 

In the Matter of the Welfare of: W.J.L., Juvenile.

 

Filed May 11, 2004

Reversed

Stoneburner, Judge

 

Redwood County District Court

File No. J60150364

 

Daniel L. Giles, 300 O’Connell Street, Marshall, MN 56258 (for appellant)

 

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

 

Michelle A. Dietrich, Redwood County Attorney, Box 130, Redwood Falls, MN 56283 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant, a juvenile, argues that the district court’s finding that she intentionally violated a condition of her probation is not supported by clear and convincing evidence and the district court abused its discretion by revoking a stay of adjudication.  Because there is not clear and convincing evidence that appellant intentionally violated the “no contact” provision of her probation, we reverse.

 

FACTS

Appellant, W.J.L., entered an Alford admission to one count of criminal sexual conduct in the first degree in a delinquency proceeding.  The state, based in part on the request of the family of the 3-year-old twin victims whom appellant had been babysitting when the incident occurred, entered into an agreement under Minn. R. Juv. P. 14.01, to continue the matter for dismissal until W.J.L.’s nineteenth birthday conditioned on her compliance with stipulated conditions and each and every condition of her probation.  The juvenile court accepted the agreement and stayed adjudication. 

            The March 1, 2002, order placing W.J.L. on probation stated that she was not to have any contact with the victims or members of their family.  W.J.L. also signed a stipulation that contained a no-contact provision.  W.J.L.’s probation officer reviewed the conditions of probation with W.J.L., in the presence of W.J.L.’s mother.  The probation officer explained that any contact with the victims or the victims’ family would be a violation of probation.  The probation officer cannot recall the exact words she used, but testified that she would have told W.J.L. that if she was in a store or a public place and saw the victims or any of the victims’ family it was W.J.L.’s responsibility “to go the other way.”

            In April 2003, W.J.L. and some friends entered a fast-food restaurant.  W.J.L. was unaware when she entered the restaurant that the victims’ mother, T.W., was employed there and was on duty at the time.  T.W. was in the kitchen, heard the bell signaling that someone had entered the restaurant and went to the counter.  According to T.W., she saw W.J.L. and two friends standing at the counter “and we caught each others eye and she kind of gave me like an uncomfortable grin and when I saw who it was I went over . . . to get my co-worker to take the order, and when I came back out she was sitting . . . two booths away from the counter . . . with her back to me.”  W.J.L. testified that when she realized T.W. was there she “felt a little awkward, and so I went and I sat down in a booth with my back towards her so that I would not make eye contact with her.”  T.W. called the police when she realized that W.J.L. was not going to leave the restaurant, and  contacted W.J.L.’s probation officer to report the incident.  The probation officer filed a violation report citing W.J.L.’s failure to leave the restaurant upon becoming aware of T.W.’s presence as a violation of the condition that W.J.L. not have any contact with the victims or the victims’ family. 

            A contested probation violation hearing was held to determine whether W.J.L. violated the terms and conditions of her probation.  W.J.L.’s probation officer testified that she had not specifically told W.J.L. that W.J.L. was obligated to leave a place where a member of the victims’ family was present.

            W.J.L.’s mother testified that when the probation officer explained the probation condition, she said that no contact meant no physical contact, no written letters, no interaction with the family, written or oral, even by someone else on her behalf.  She stated that the probation officer had not explained to W.J.L. that she must leave a public place if a member of the victims’ family was present, but she should merely avoid any contact with them.  W.J.L. testified that she did not believe she was violating the no-contact provision of her probation by remaining in the restaurant and did not understand that she was expected to leave until her probation officer told her that after the incident.

            After hearing the testimony, the court determined that W.J.L. had violated the no-contact condition of her probation.  The juvenile court noted that after the initial look that passed between W.J.L. and T.W., there was no additional contact, and noted W.J.L.’s

apparent lack of understanding over the no contact order” but concluded that

 

this is countered to a large degree by the more logical conclusions that [W.J.L.] did not want to explain to her two friends why she had to leave . . . [T]his was not a case of malicious, intentional contact, but more of a passive contact in which [W.J.L.] was caught between passive contact . . . and explaining to her friends that she was required to leave.  There have been no other reported probation violations. 

 

            The juvenile court vacated the stay of adjudication, and adjudicated W.J.L. delinquent.  W.J.L. was reinstated on probation with all previously ordered conditions and the additional requirement that she complete an inpatient program at the Leo Hoffman Center and abide by any and all aftercare recommendations.  As a result of adjudication, W.J.L. has been required to register as a sex offender under Minn. Stat. § 243.166.  W.J.L. appealed the revocation of the stay of adjudication arguing that her probation violation was not willful because she was not given adequate notice of the conditions of probation, and therefore, the district court abused its discretion in revoking the stay of adjudication. 

D E C I S I O N

Whether to revoke probation is within the district court’s discretion, and this court will reverse a probation revocation only if there is an abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  In making that determination, the court must find that the violation has been established by clear and convincing evidence.  Minn. R. Juv. P. 15.07.  To revoke an adult or EJJ probation, a court must designate the specific condition that was violated and find that the violation was intentional or inexcusable, and that the need for confinement outweighs the policy favoring probation.  State v. B.Y., 659 N.W.2d 763, 768 (Minn. 2003) (citing Austin, 295 N.W.2d at 250).  The Austin factors have not previously been applied to juvenile probation proceedings outside of the EJJ context, and the third factor is clearly not applicable, but we conclude that the requirement of Minn. R. Juv. P. 15.07, that a probation violation must be established by clear and convincing evidence encompasses a requirement that the violation have been intentional or inexcusable.

Although the no-contact provision was set out in two separate writings and orally explained to W.J.L. by her probation officer, nothing in the writings or the explanation made it clear that W.J.L. had the responsibility to leave a public establishment in which the victims or a member of the victims’ family was present.  The written conditions specify only that W.J.L. would “not have any contact with the victims or the victims’ family unless authorized by probation and/or the court.”  The explanation given by W.J.L.’s probation officer, while more specific than the written condition, only informed W.J.L. that if she encountered the victims or the victims’ family in a public place it was her responsibility to “go the other way and avoid the contact.”  

The evidence here is that W.J.L. did not know that T.W. worked for or would be present in the restaurant she entered.  After encountering T.W., W.J.L. went the other way by leaving the counter and sitting two booths away with her back to the counter.  W.J.L. avoided any contact with T.W. in accordance with her acknowledged understanding of the no-contact condition.  Although the incident was very upsetting to T.W., based on the record, including the testimony of W.J.L.’s probation officer, we cannot conclude that there is clear and convincing evidence that W.J.L., who had successfully complied with probation requirements for over a year, intentionally violated her probation when she failed to leave the restaurant.  The juvenile court’s order specifically states that this was not an intentional contact.  Because the record in this case does not contain clear and convincing evidence that W.J.L.’s violation of the no-contact provision was intentional or inexcusable, the juvenile court abused its discretion in finding a probation violation and revoking the stay of adjudication based on the violation.

Reversed.