This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Ruby Jewell Grinder,
Filed September 11, 2007
Reversed and remanded
Becker County District Court
File No. K0-02-1341
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Evans, Becker County Attorney,
Stuart, State Public Defender, Philip Marron, Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Muehlberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenged the
district court’s order revoking her probation and executing a 42-month sentence
of imprisonment for first-degree driving while impaired. Appellant argues that the district court revoked
her probation without making the findings required by State v. Austin, 295
N.W.2d 246 (
On April 16, 2003, appellant Ruby Jewell Grinder pleaded guilty to first-degree driving while impaired in violation of Minn. Stat. §§ 169A.20, subd. 2, 169A.24, subd. 1, 2 (2002). Appellant was sentenced to a stayed execution of the presumptive guidelines sentence of 42 months and placed on probation for seven years, subject to conditions.
14, 2004, a probation-violation report was filed, alleging that appellant had
violated the terms of her probation by failing to remain law-abiding. On December 14, 2004, appellant was charged
with and convicted of driving while under the influence in
A second probation-violation report was filed on February 16, 2005. At the probation-revocation hearing, appellant admitted that she had violated the terms of her probation by not completing the Sister’s Path Program as required. The district court reinstated her probation with additional conditions.
On June 22, 2006, North Dakota University Police Officer Marc Baetsch stopped appellant’s vehicle in the early morning hours. Appellant was a front-seat passenger and Baetsch observed that “she was clearly intoxicated and there were containers of alcohol in the vehicle.” Corrections Agent Jennifer Palmer testified that she spoke with Baetsch on the phone and received a faxed letter from him regarding the incident. Palmer testified that Baetsch informed her “that he could observe that [appellant] was under the influence of alcohol. He had stated he could smell it on [appellant’s] breath when he talked to her about the vehicle, . . . and then also that her eyes were bloodshot.” Baetsch did not have appellant take a Breathalyzer because she was not driving the vehicle.
On June 30, 2006, a third violation report was filed, alleging three violations from the June 22, 2006 incident: (1) failure to abstain from the use of alcohol or drugs; (2) possession of alcohol; and (3) failure to follow the recommendations of the alcohol problem assessment. Appellant denied the violation and a contested hearing was held on July 11, 2006.
Palmer testified that appellant had an appointment scheduled with her on June 28, 2006, two days after she received the report from Baetsch. At the appointment, Palmer asked appellant about the incident on June 22, 2006. Palmer testified that appellant stated:
“Jen, I only had three drinks,” she said, “I think, because of the medication –” she is on antidepressants – she said, “I think because of the medication, I probably looked a lot more drunk than I was.” But she had admitted to me that they had had three drinks. She said they were at Ms. Anderson’s mother’s house drinking alcohol.
Palmer also testified that appellant had failed to submit attendance slips from her Alcoholics Anonymous meetings, which she was required to attend twice a week.
Appellant testified that she did not tell Palmer that she had consumed three drinks the night of the incident; she told Palmer that the other people in the car had consumed three drinks. Appellant testified that she had taken her prescribed sleeping medication at her friend’s house at approximately eight or nine o’clock. Appellant intended to drive herself home before the medication affected her, but it affected her quicker than she anticipated, so she took a nap. Appellant’s friend woke her up and told her that she had an argument with her mother and asked appellant to take her home. Appellant told her friend that she could not drive, so her friend said that she would drive and appellant could stay the night at her house.
The district court revoked appellant’s probation, executed her sentence, and committed her to the Commissioner of Corrections for 42 months, with a five-year conditional release. This appeal follows.
D E C I S I O N
argues that the district court abused its discretion because it failed to make
proper findings under State v. Austin,
295 N.W.2d 246, 250-51 (
Whether a district
court has made the required findings presents a question of law, which this
court reviews de novo. Modtland, 695 N.W.2d at 605. The Minnesota Rules of Criminal Procedure
also require the district court to “make written findings of fact on all
disputed issues” in a contested probation-revocation hearing. Minn. R. Crim. P. 27.04, subd. 3(4). “The ‘written findings’ requirement is
satisfied by the district court stating its findings and reasons on the record
which, when reduced to a transcript, is sufficient to permit review.” Modtland,
695 N.W.2d at 608 n.4 (citing Pearson v.
Here, the district court did not make written findings; and the court’s oral findings were limited. The court stated:
Well, [appellant], your own admissions are the straw that has broken the camel’s back in this matter.
The court does find you in violation and the matter has to be dealt with. You’re a repeated violator. And now it comes time to, quite frankly, face the music.
This is here pursuant to a stay of execution. It was a commit to the Commissioner of Corrections . . . on 5-9-03 for 42 months. It was a stay of execution for up to seven years. You were on more than just probation, you were on the very strictest probation. You’re now in violation. You are a repeat offender. The court has found you to be such.
court’s findings do not sufficiently address the
also does not indicate that the violation was intentional or inexcusable as
required by the second of the
(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.
695 N.W.2d at 607 (quoting
2. Violation of probation
also argues that the state did not present sufficient evidence to show that she
violated a condition of probation. “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
Appellant argues that the evidence of her alleged alcohol consumption was not clear and convincing but rather was of dubious reliability and credibility. She contends that Baetsch misinterpreted her condition as one that was a result of alcohol consumption, when in fact it was a result of her sleeping medication. Baetsch smelled the odor of alcohol on appellant and noted that she had bloodshot eyes. Appellant had no explanation for the odor Baetsch smelled or the bloodshot eyes. Appellant points out that no chemical testing was done and that her boyfriend, who came to pick her up, testified that he did not smell an odor of alcohol on her. The district court considered appellant’s and her boyfriend’s testimony but did not find it persuasive. Discrepancies in evidence raise a credibility issue, and we defer to the district court’s credibility determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472-75 (Minn. App. 2000).
Palmer also testified that appellant told her that she had consumed three drinks that evening. The district court believed Palmer’s testimony. See State v. Bunce, 669 N.W.2d 394, 399-400 (Minn. App. 2003)(stating the district court is in the best position to assess credibility), review denied (Minn. Dec. 16, 2003). Thus, the evidence clearly and convincingly established that appellant had consumed alcohol in violation of her probation.
also argues that Baetsch’s statements and the letter sent to Palmer were
hearsay and thus not reliable. Here, a
letter from Baetsch and a subsequent telephone conversation between Palmer and
Baetsch were the basis for two of the alleged violations, use of alcohol and
possession of alcohol. Appellant argues
that Palmer had no personal knowledge of the truth of the letter’s contents and
that she was denied the right to confront Baetsch. Hearsay may be admitted in a revocation
proceeding if it has some substantial indicia of reliability, even if the same
hearsay would not be admitted in a criminal proceeding. Belk v.
Purkett, 15 F.3d 803, 808 (8th Cir. 1994); see Minn. R. Evid. 1101(b)(3) (stating that rules of evidence are
inapplicable in probation-revocation hearings).
The “revocation process ‘should be flexible enough to consider evidence
including letters, affidavits, and other material that would not be admissible
in an adversary criminal trial.’” Belk, 15 F.3d at 808 (quoting Morrissey v. Brewer, 408
that when the defendant has had ample opportunity to present evidence in a probation revocation proceeding, the rules of evidence do not preclude admission of hearsay evidence, such as a letter reporting that defendant violated the terms of probation. Affording the defendant the opportunity to present evidence ensures that the defendant can expose potential flaws in the evidence. The reliability of the hearsay evidence will be weighed against other evidence and the risk of relying on untrustworthy hearsay evidence will be greatly minimized.
Here, Palmer testified that Baetsch was unavailable to testify because he was in court for another matter. Baetsch’s letter and phone conversation with Palmer were properly admitted. Moreover, appellant’s broad issue regarding the admissibility of hearsay statements was not preserved by objection at the revocation hearing.
Appellant also contends that the evidence of her alleged possession of alcohol was not clear and convincing. Baetsch reported a bottle of alcohol was in the front seat of the vehicle as well as other bottles in the back of the vehicle and that appellant and the other passenger left the vehicle carrying the alcohol from the vehicle. Appellant contends that the other passenger in the vehicle carried a bag away from the vehicle and she did not know what was inside the bag. Again, it is evident that the court found appellant’s testimony less credible than that of Palmer and the letter from Baetsch. The district court is in the best position to assess credibility, and we defer to the district court’s credibility evaluations. See State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (discussing deference owed district court’s credibility determinations), review denied (Minn. June 11, 1997).
conclude that the district court’s failure to make the necessary
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.