This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1990

 

State of Minnesota,
Respondent,

vs.

Gordon Lee Hulegaard,
Appellant.

 

Filed April 4, 2000

Affirmed

Davies, Judge

Concurring Specially, Harten, Judge

 

Anoka County District Court

File No. K69713193

 

 

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and

 

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Sara J. Lathrop, Certified Student Attorney, Anoka County Government Center, 7th Floor, 2100 Third Ave., Anoka, MN 55303 (for respondent)

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Bldg., 46 East Fourth St., St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

            This appeal is from an order revoking probation.  The district court, after finding that appellant intentionally violated the no-contact condition of his probation, reinstated probation with additional jail time.  Appellant contends the district court abused its discretion by revoking the original terms of his probation and by failing to make written findings.  We affirm.

FACTS

            Appellant Gordon Lee Hulegaard pleaded guilty to second-degree assault involving a firearm.^[1]  The sentencing guidelines called for a mandatory prison term of 36 months.  At the sentencing hearing, the district court departed downward from the guidelines and sentenced appellant to serve substantial time in the county jail, followed by seven years of probation, with appellant to have no contact with John Kaffenberger (the victim).  Appellant was released from jail in December 1998.

            In March 1999, appellant’s brother, Darren, approached Kaffenberger at a construction site where Kaffenberger was working.  Darren questioned Kaffenberger about the assault and stated it was “funny” that Kaffenberger “made it out of there alive.”  Kaffenberger testified that Darren said:  “Gordy [appellant] contacted me a week ago.  From my understanding, you are very lucky to get out of here alive.” 

            On April 11, 1999, appellant and Kaffenberger were in a Wal-Mart store at the same time.  Appellant walked by Kaffenberger and his wife several times.  Each time, appellant stared at Kaffenberger, but did not speak.

            The district court found that appellant had deliberate contact with Kaffenberger in the store and deliberate indirect contact through his brother.  The court reinstated the stay of execution, but with new conditions of probation, including that appellant serve some additional time in jail. 

D E C I S I O N

            The district court has broad discretion in deciding whether to revoke probation; we reverse only if there was a clear abuse of that discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Before probation can be revoked, the district court must:  (1) designate the specific conditions violated; (2) find that the violation was intentional or inexcusable; and (3) find that confinement outweighs policies favoring probation.  Id. at 250.  This three-factor analysis is to ensure due process.  State v. Belfry, 431 N.W.2d 572, 573 (Minn. App. 1988), review denied (Minn. Jan. 25, 1989).

Appellant argues that the district court abused its discretion by revoking his probation without making explicit written findings.  A district court is required to

make written findings of fact on all disputed issues including a summary of the evidence relied upon and a statement of the court’s reasons for its determination. 

 

Minn. R. Crim. P. 27.04, subd. 3(4).  This court has, however, held that a district court’s failure to make written findings is not an abuse of discretion if the court makes explicit findings on the record.  State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996).

            In this case, the district court stated on the record that appellant intentionally contacted Kaffenberger both in the store and through his brother and, in doing so, violated the no-contact condition of his probation.  The district court, thus, did not abuse its discretion by failing to make explicit written findings.

Appellant also claims there was insufficient evidence to support the district court’s finding that he violated a condition of probation.  A probation violation must be proved by clear and convincing evidence.  State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986), review denied (Minn. Feb. 13, 1987).  We will not disturb the district court’s findings unless they are without support in the record and are therefore clearly erroneous.  Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (citing Minn. R. Civ. P. 52.01).

Appellant contends he did not have intentional contact with Kaffenberger in Wal-Mart, but was merely shopping in the store and did not initially recognize Kaffenberger.  He also contends that he did not initiate his brother’s contact with Kaffenberger.  Darren Hulegaard, likewise, testified that he had not recently spoken with appellant and that his statements to Kaffenberger were meant to be a joke.

But the district court stated on the record that he did not believe the testimony of appellant or his brother and determined that the Kaffenbergers’ testimony about the Hulegaards’ conduct was more credible.  Giving due regard to the district court’s findings on witness credibility, the record supports the district court’s findings.  See State v. Spanyard, 358 N.W.2d 125 (Minn. App. 1984) (stating function of court as fact-finder is to weigh witness credibility), review denied (Minn. Feb. 27, 1985).

The rules of criminal procedure authorize the district court, on finding a probation violation, to execute the prison term or to stay execution of the sentence and “place the probationer on probation.”  Minn. R. Crim. P. 27.04, subd. 3(3).  A district court is also authorized, as a condition of probation, to “require the defendant to serve up to one year incarceration in a county jail.”  Minn. Stat. § 609.135, subd. 4 (1998). 

Because the record supports the district court’s findings that appellant intentionally violated the no-contact provision and that continued probation with additional jail time was favored over prison, the district court did not abuse its discretion.

Affirmed.

HARTEN, Judge (concurring specially)

            Because the parties did not raise any issues under Minn. Stat. § 609.135, subd. 4 (1998), which limits to one year the time a defendant can be jailed as a condition of probation, I concur in the result.