This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Kevin D. Rasmussen,




Filed September 14, 2004


Toussaint, Chief Judge


Olmsted County District Court

File No. K1-03-159



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Raymond F. Schmitz, Olmsted County Attorney, David Franklin McLeod, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)


John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Harten, Judge; and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


On appeal from a district court order revoking probation, appellant argues that the court abused its discretion in basing the revocation on appellant’s involuntary discharge from his court-ordered rehabilitation program.  Because successful completion of the rehabilitation program was a condition of appellant’s continuing probation, we affirm.


            In August 2003, 36-year-old appellant Kevin Rasmussen pleaded guilty to one count of first-degree refusal to submit to testing under Minn. Stat. §§ 169A.20, subd. 2, .24 (2002), and one count of fleeing a peace officer under Minn. Stat. § 609.487, subd. 3 (2002).  These violations followed an 18-year history of criminal convictions, including four substance- or alcohol-related driving offenses and two fleeing-a-peace-officer violations.

            Despite Rasmussen’s criminal history, the district court granted his motion for a downward durational departure from the guidelines sentence based on Rasmussen’s admission into Minnesota Teen Challenge, a rigorous, highly structured rehabilitation program.  The court stayed execution of Rasmussen’s presumed 54-month guideline sentence, explicitly conditioning this stay of execution on Rasmussen entering and successfully completing Teen Challenge. 

            In December 2003, Rasmussen was discharged from Teen Challenge after he stole a telephone and allowed several individuals to use it to aid in their escape from the program.  The district court subsequently revoked Rasmussen’s probation and reinstated his presumed guidelines sentence, basing its determination solely on Rasmussen’s failure to complete Teen Challenge.  He now appeals.


            “The trial court has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  When revoking probation, a district 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.  State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004).

            Rasmussen first argues that his actions “were not done . . . with the intent to violate probation” and that, therefore, his sentence should not be executed for a mere “technical violation.”  The record reflects, however, that Rasmussen was aware that he needed to “do things to the letter” in order to avoid expulsion from the program and to avoid violating the terms of his probation.  Rasmussen nevertheless concedes that he intentionally took, concealed, and used a telephone that he knew he was not permitted to use.  The record thus clearly demonstrates that Rasmussen knowingly and intentionally violated Teen Challenge’s rules, while being aware that a rule violation might lead to expulsion and that expulsion would lead to the consequences he now faces.

            Rasmussen next contends that the court failed to consider less restrictive alternatives to imprisonment and completely disregarded his amenability to treatment.  But, as the record reveals, the district court did make these considerations: when Rasmussen presented less restrictive alternatives at his revocation hearing, the court commented that they “wouldn’t have been harsh enough and . . . wouldn’t have been limiting enough” based on his recidivism after previous attempts to rehabilitate.  The court then noted that it knew “of no program at all comparable to [Teen Challenge],” and that Rasmussen’s failure at this “last resort” gave him no reasonable alternative to prison.   

            “Less judicial forbearance is urged for persons violating conditions of a stayed sentence who were convicted of a more severe offense or who had a longer criminal history.”  State v. Hamilton, 646 N.W.2d 915, 918 (Minn. App. 2002) (quoting Minn. Sent. Guidelines III.B.), review denied (Minn. Sept. 25, 2002).  Rasmussen violated the conditions of a stayed sentence for his fourth and fifth felony convictions and has failed treatment multiple times in the past.  The district court, therefore, properly determined that the need for confinement here outweighed the policies favoring probation and that Rasmussen’s violations warranted commitment to the Minnesota Commissioner of Corrections.