This opinion will be unpublished and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

A05-1034

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Albert Scherer,

Appellant.

 

Filed March 28, 2006

Affirmed

Kalitowski, Judge

 

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

KALITOWSKI, Judge

            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. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The state has the burden of proving the probation violation by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3.  When revoking probation, the district 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.  The third factor is satisfied if:

(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.

 

Id. at 251.  “The decision to revoke cannot be a reflexive reaction to an accumulation of technical violations but requires a showing that the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”  Id. (quotations omitted).

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.[1]  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.”  

            The 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 Austin factors because he did not intentionally violate the condition and because policies favoring probation outweighed the need for his confinement. 

I.

            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.

Minnesota courts consider polygraph examinations unreliable.  State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985).  And even if appellant’s polygraph examination were accepted here, appellant’s answers did not address, much less negate, the specific conduct or culpability underlying his conviction.  Moreover, appellant’s belief that his polygraph results left him no choice but to deny culpability ignores Alpha staff’s explanations to the contrary.  Although appellant interpreted his polygraph results as absolving him, Alpha staff informed him that the polygraph results did not indicate that he did not commit a sexual offense, only that he had no additional victims.  We conclude that the district court did not abuse its discretion in finding that appellant’s violation of the treatment condition of his probation was intentional and inexcusable.  

II.

            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. 

            Affirmed.