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,
Dwayne NMN Wilson,
Filed August 19, 1997
Hennepin County District Court
File No. 95086543
Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Peter J. Timmons, 419 Metro Office Park, 2850 Metro Drive, Bloomington, MN 55425-1412 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.[*]
Dwayne Wilson appeals from a third-degree controlled substance crime conviction, arguing the trial court erred in revoking the stay of imposition of his sentence by failing to make the proper findings. We affirm.
not * * * be found in a motor vehicle, in a residence, or in the company of anyone else who has in their possession or is under the influence of illegal drugs.
The trial court cautioned Wilson that it would not accept an "ostrich defense." The trial court told Wilson that the reason it was staying imposition of the sentence was so Wilson could continue to care for his three young children.
On December 5, 1996, Wilson was arrested in his home for possession of cocaine. The cocaine was found in a desk drawer in an office/bedroom occupied by Wilson's friend and business associate, Bruce Johnson. Wilson denied knowing there were drugs in his house. Johnson told police at the scene that the drugs were Wilson's.
At the revocation hearing, police officer Terrance Olson testified he received a tip about drug dealing at Wilson's house. Olson conducted surveillance and noticed behavior consistent with drug dealing. Olson also testified he searched Wilson's trash and found packaging materials used for selling crack cocaine. Field tests confirmed the presence of cocaine residue.
Olson executed a search warrant and found 3.3 grams of cocaine in the desk. The desk also contained cocaine packaging materials and a gram scale typically used in drug dealing. In Wilson's defense, Johnson testified, after receiving a Miranda warning, that the cocaine was his and that Wilson had no knowledge of the cocaine in his house.
The trial court revoked the stay of imposition, concluding that "Mr. Wilson was either re-engaged in or was allowing narcotics business on his residence." Wilson appeals.
when it appears that the defendant has violated any of the conditions of probation or * * * has otherwise been guilty of misconduct which warrants the imposing or execution of sentence * * *.
Minn. Stat. § 609.14, subd. 1(a) (1996). In revoking probation, the trial 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.
Austin, 295 N.W.2d at 250.
Wilson argues the trial court erred in revoking the stay of imposition because it failed to make findings pursuant to Austin after his counsel requested such findings. See State v. Hlavac, 540 N.W.2d 551, 553 (Minn. App. 1995) (requiring trial court to make Austin findings on record or in order if requested by defense counsel). The reviewing court, however, may also search the record to determine whether the evidence was sufficient to support the Austin findings. See, e.g., Austin, 295 N.W.2d at 250 (reviewing record where defendant failed to return to prison after attending treatment); State v. Theel, 532 N.W.2d 265 (Minn. App. 1995) (reviewing record where defendant failed to pay ordered restitution), review denied (Minn. July 20, 1995).
The revocation transcript reveals that the trial court made the required Austin findings and that the evidence was sufficient to support the Austin findings. The trial court indicated Wilson violated the condition of staying away from a residence where drugs were located. The trial court was very clear that Wilson was on a "short leash" for that condition and it would not accept an "ostrich defense."
The trial court concluded the evidence showed "beyond any reasonable doubt" that Wilson was re-engaged in drug dealing. The record shows the drugs and drug paraphernalia were found in the desk in the office for Wilson's limousine business. Surveillance indicated the foot traffic into the home was consistent with drug dealing. Wilson, a convicted drug dealer, should have known the heavy foot traffic at all hours was consistent with drug dealing even if he was not directly involved.
Finally, the trial court clearly stated that the only reason it placed Wilson on probation was out of concern for his three young children. The clear implication is that confinement was the only viable alternative for Wilson.
The trial court did not abuse its discretion in revoking the stay of imposition of Wilson's sentence.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.