This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Albert Scherer,
Filed March 28, 2006
Hennepin County District Court
File No. 03039149
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Caroline Lennon, Assistant County Attorneys, Jamie Wiemer (certified student attorney), C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Michael Albert Scherer challenges the district court’s revocation of his probation, arguing that the district court abused its discretion by finding (1) that appellant intentionally or inexcusably violated the treatment condition of his probation; and (2) that the need for appellant’s confinement outweighed policies favoring probation. We affirm.
D E C I S I O N
A 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.
(i) confinement is necessary to protect the public from further criminal activity by the offender; or
(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or
(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
Here, a jury found appellant guilty of criminal sexual conduct in the second degree pursuant to Minn. Stat. § 609.343, subd. 1 (2002), for engaging in sexual contact with his 11-year-old stepdaughter. The district court sentenced appellant to 21 months but stayed execution of his sentence and placed him on probation for ten years. One of the conditions of appellant’s probation required him to successfully complete Alpha Human Services sex offender treatment (Alpha).
Appellant began attending Alpha in July 2004. At intake, appellant acknowledged that he had touched his stepdaughter’s breasts and pubic hair and had engaged in sexual contact with his biological daughter. Alpha staff advised appellant
that the program at Alpha is intended for those individuals who have committed sexual offenses and who acknowledge responsibility for those actions as well as a desire to address the relevant issues in order to reduce the potential for recidivism. He was advised that the remaining phases and goals assume culpability for a sexual offense.
Notwithstanding his previous admissions, the record indicates that appellant denied engaging in conscious or overt sexual behavior with his stepdaughter. On March 8, 2005, Alpha terminated appellant from treatment “since his position continue[s] to be that he did not commit the offenses for which he was convicted or any sexual offense at all, and since his prior acknowledgement of culpability was only offered as a means to enter treatment so as to avoid incarceration.”
district court revoked appellant’s probation because he failed to successfully
complete treatment at Alpha. Appellant
does not challenge the district court’s finding that he violated a condition of
his probation. But appellant argues that
the district court abused its discretion in applying the second and third
Appellant argues that his violation of the treatment condition was unintentional, relying primarily on what he claims to be a favorable polygraph examination. He contends that because no deception was identified in his answers to polygraph questions regarding his sexual activities, it was impossible for him to admit culpability for his offenses. We disagree.
A defendant’s failure to respond to treatment or cooperate in a treatment program is sufficient evidence to support revocation of probation. See State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986) (affirming revocation when defendant was terminated from treatment program for failure to comply with the program’s requirements), review denied (Minn. Feb. 13, 1987); State v. Marti, 372 N.W.2d 755, 758-59 (Minn. App. 1985) (same), review denied (Minn. Oct. 11, 1985); State v. Hemmings, 371 N.W.2d 44, 47 (Minn. App. 1985) (same). And revocation for failure to complete a treatment program accords with the rule that a defendant’s failure to enter or be admitted to a treatment program is sufficient evidence to support revocation of probation. State v. Muhlenhardt, 403 N.W.2d 638, 639 (Minn. 1987) (reinstating revocation when defendant failed to cooperate in treatment program admission); State v. Morrow, 492 N.W.2d 539, 544-45 (Minn. App. 1992) (affirming revocation of probation when defendant was unable to afford treatment program); State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992) (affirming revocation of probation when treatment became unavailable because county ceased contracting with treatment program); State v. Rock, 380 N.W.2d 211, 213 (Minn. App. 1986) (defendant’s failure to be accepted by treatment programs supported revocation), review denied (Minn. Mar. 27, 1986).
Here, appellant knew that his continued treatment was conditioned on his accepting responsibility for his sexual offenses. Both the sentencing judge and Alpha staff expressly informed appellant that he had to admit his sexual offenses to proceed through treatment and fulfill the treatment condition of his probation. But appellant nonetheless insisted that he did not sexually assault his stepdaughter per his conviction and argues that the results of his polygraph examination show that he was not culpable. We disagree.
Appellant argues that the policies favoring probation outweighed any need for his confinement and that the court “should have modified its original conditions of probation to fashion a probationary sentence for which compliance was possible.” We disagree.
The district court found that the need for appellant’s confinement outweighed policies favoring probation because appellant was a risk to the community. The court reasoned that appellant “is a twice-convicted sex offender whose victims have been family members to whom he had easy access. If he cannot complete treatment because he is in denial, he is a risk to the community.” The record supports this finding. And the record supports the district court’s finding that appellant continues to deny any culpability for those offenses.
Appellant contends that the district court should have fashioned a more suitable probation condition for him than Alpha treatment. The only alternative to Alpha treatment that appellant cites is a psychoeducation class. But a letter from the Director of Intake and Outpatient Services at Alpha specifically states that the class “is not considered an equivalent to participation in a traditional treatment program.” The district court gave credence to the director’s letter and rejected the class as a suitable substitute for appellant’s court-ordered treatment. We conclude that the district court did not abuse its discretion by finding that appellant’s need for confinement outweighed policies favoring probation because appellant was a risk to the community.
 In 1994, appellant was also convicted of criminal sexual conduct in the fifth degree involving sexual activity with his then-19-year-old biological daughter.