may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Anthony Eugene Clark,
Filed February 25, 1997
Hennepin County District Court
File No. 93022479
Hubert H. Humphrey, III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Hennepin County Government Center, Minneapolis, MN 55487 (for Respondent)
Maureen Williams, Law Office of Maureen Williams, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for Appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.
Appellant challenges his probation revocation by claiming that the sentencing court improperly considered the fact that he left the courtroom during revocation proceedings. We affirm.
While on probation for the aggravated robbery, appellant was charged with two counts of terroristic threats, felony damage to property, and gross misdemeanor theft. According to the complaint, appellant threatened two people with a gun, slashed the tires of another person's car, and stole that person's clothing. Although the charges were dismissed when the victims failed to appear for trial, the state initiated probation revocation proceedings. During the first hearing, appellant walked out of the courtroom.
At the second hearing one week later, the sentencing court followed State v. Austin, 295 N.W.2d 246 (Minn. 1980), in determining to revoke appellant's probation, but it also mentioned the fact that he had left the courtroom during the previous hearing. Appellant claims that the court abused its discretion by taking appellant's absence from the courtroom into consideration.
Probation revocation is governed by statute. Minn. Stat. § 609.14 (1996). If the court in the revocation proceeding finds by clear and convincing evidence that the defendant has violated probation, it may order execution of the sentence previously imposed. See Minn. Stat. § 609.14, subd. 3(2) (1996); Minn. R. Crim. P. 27.04, subd. 3. Furthermore, the Minnesota Supreme Court has set forth a three-part test that courts must meet when ordering a probation revocation. Austin, 295 N.W.2d at 250.
At the revocation hearings in the present case, the court took testimony and found, as required by Austin, that (1) "specific conditions of the stay were violated," (2) "the violation was intentional or unexcusable," and (3) "the need for confinement outweighs the policy for probation." See id. (setting forth factors). Furthermore, the sentencing court correctly declared that it must balance the appellant's "interest in freedom" against the "state's interest in insuring his rehabilitation [and] in public safety."
Appellant contends that the sentencing court had no basis for revoking his probation except for the fact that he walked out of the courtroom during the first hearing. This misconstrues the sentencing court's actions. The court found by clear and convincing evidence that he committed the offenses of terroristic threats, felony damage to property, and gross misdemeanor theft. Moreover, evidence in the record supports these findings. A victim testified at the revocation hearing, and other evidence corroborated his testimony.
We find nothing in the record to suggest that the sentencing court based the probation revocation on appellant's absence from the first hearing. It is evident that the court considered his departure from the courtroom in assessing his credibility as a witness. The finder of fact, in this case the sentencing court, is in a unique position to weigh the credibility of witnesses. Spanyard, 358 N.W.2d at 127. While not determinative, appellant's absence may properly be a factor in weighing his credibility as a witness. The court did not err by mentioning appellant's flight from the courtroom.