This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Dale Allen Ekert,




Filed ­­­March 22, 2005


Toussaint, Chief Judge


Hennepin County District Court

File No. 02059092



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


Amy Klobuchar, Hennepin County Attorney, Criminal Appeals Division, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Mary M. McMahon, Special Assistant Public Defender, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant challenges the district court order revoking his drug-offense probation.  We affirm. 


            In November 2002, appellant Dale Allen Ekert pleaded guilty to one count of second-degree possession of cocaine in violation of Minn. Stat. §§ 152.022, subds. 2(1), 3(a) (2000).  The district court sentenced him to 68 months in custody and stayed the sentence for three years subject to various conditions, including that Ekert complete drug-treatment programs and submit to regular urinalyses (UA's).   

            Ekert was subsequently discharged from three separate treatment programs for using controlled substances and submitted five positive UA’s in a six-week period in early 2004.  When he was in court in March 2004 for a probation review, an assistant Hennepin County attorney discovered a device designed to falsify UA results under the table at which Ekert was sitting.  The court ordered him arrested and scheduled a probation-revocation hearing pursuant to Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972).  Following the hearing, at which the assistant county attorney testified, the district court revoked Ekert’s probation and ordered the sentence executed.  This appeal follows.


Because the state did not file a brief, this matter proceeds on the merits pursuant to Minn. R. Civ. App. P. 142.03.  “The [district] 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).  To justify a probation revocation, the district court must “(1) designate the specific condition or conditions [of probation] that were violated; (2) find that the violation was intentional or inexcusable; and (3) find that [the] need for confinement outweighs the policies favoring probation.”  Id. at 250.  The failure to follow a district court’s order is an indication that probation has not succeeded.  State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995).


Ekert argues the evidence was insufficient to support the district court’s finding that he constructively possessed the UA-tampering device at his March 3 court appearance.  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  We view the record in the light most favorable to the judgment of the district court.  Rogers v. Moore, 603 N. W.2d 650, 656 (Minn. 1999).  “If there is reasonable evidence to support the district court’s findings, [this court] will not disturb them.”  Id.  Here, the district court’s finding of constructive possession was based on circumstantial evidence, which is entitled to as much weight as other evidence.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Findings based on circumstantial evidence receive close scrutiny.  Id

Constructive possession of a contraband item means that either the item was found  “in a place under [an individual’s] exclusive control to which other people did not normally have access, or [if found] in a place to which others had access, there is a strong probability . . . that [the individual] was at the time consciously exercising dominion and control over it.”  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  Whether an individual exercises dominion and control depends on the totality of the circumstances.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

Here, the district court specifically credited the testimony of the assistant county attorney, who stated at the Morrissey hearing that the UA-tampering device was not under Ekert’s table just before he sat down and was under the table immediately after he got up.  Ekert argues there was no evidence demonstrating his conscious exercise of dominion and control over the device, which was found in a public place.  But the court found that he brought the device to court with him and placed it under the table during his appearance.  Ekert also contends that when he left the table without taking the device, he abandoned the device, thereby precluding a finding of constructive possession.  But under Florine, it was sufficient that the district court find appellant controlled the device during the hearing.  The evidence was sufficient to support a finding of constructive possession.


Ekert argues that even if proved, his constructive possession of the UA-tampering device is irrelevant because the possession does not violate a specific condition of his probation and because the state failed to show that he intended to use the device.  This argument is without merit.  Although the conditions of his probation did not specifically prohibit him from possessing such a device, it would be unreasonable to require that a district court that ordered a probationer remain drug-free also specify that the urine submitted for testing actually come from his body or that he not attempt to otherwise distort the test results. 

As to Ekert’s intent to use the device, we defer to the district court’s finding that his possession of the device, in addition to his lack of progress in treatment, was sufficient evidence of his intent to use it.  See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (observing intent may be inferred from circumstances).  The district court properly revoked Ekert’s probation based upon his drug use, his lack of progress in treatment, and his possession of the tampering device.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.