This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1902

 

State of Minnesota,
Respondent,

vs.

Ruby Jewell Grinder,
Appellant.

 

Filed September 11, 2007

Reversed and remanded

Muehlberg, Judge*

 

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

 

Joseph A. Evans, Becker County Attorney, P.O. Box 476, Detroit Lakes, MN  56502 (for respondent)

 

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            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

MUEHLBERG, Judge

            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 (Minn. 1980).  Appellant also argues that there was insufficient evidence that she, rather than another passenger in the vehicle, possessed alcohol or that she had consumed alcohol, both of which were alleged as violations of probation.  Because the district court failed to make the requisite Austin findings, we reverse and remand.

FACTS

            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. 

            On August 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 Cass County, North Dakota.  The district court reinstated appellant on probation with several new conditions, including that she have no alcohol or drug use and no same or similar offenses, and that she complete the Sister’s Path Program at Sharehouse in Fargo, North Dakota. 

            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

            1.         Austin factors

            Appellant 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 (Minn. 1980), before revoking her probation.  We agree.  Before revoking probation, the district court must (1) designate the specific probation condition or conditions violated; (2) find that the violation was intentional or inexcusable; and (3) find that the need for confinement outweighs the policies favoring probation.  State v. Modtland, 695 N.W.2d 602, 606 (Minn. 2005) (quoting Austin, 295 N.W.2d at 250). 

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. State, 308 Minn. 287, 292, 241 N.W.2d 490, 493 (1976)).

            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.

 

            The court’s findings do not sufficiently address the Austin factors.  The district court fails to identify the particular admission that constitutes the violation that the court relied on in revoking appellant’s probation.  Palmer testified that appellant admitted that she had been drinking and appellant admitted during the hearing to not submitting her slips from Alcoholics Anonymous meetings in a timely manner; both of which violated the terms of appellant’s probation.  While the court does note that appellant’s admission is the “straw that has broken the camel’s back,” without more, this court is left not knowing which violation the court found. 

            The court also does not indicate that the violation was intentional or inexcusable as required by the second of the Austin factors.  Austin also requires the district court to “find that need for confinement outweighs the policies favoring probation.”  Austin, 295 N.W.2d at 250.  When considering the third factor, the district court should consider whether:

(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.

 

Modtland, 695 N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251).  The district court made no findings or references to a balance between confinement and probation.  Thus, we conclude that the district court did not address the Austin factors before revoking probation.  Accordingly, we reverse and remand for additional findings. 

2.         Violation of probation

            Appellant 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 discretion.”  Austin, 295 N.W.2d at 249-50.  Probation violations must be proved by clear and convincing evidence.  Minn. R. Crim. P. 27.04, subd. 3(3).  Courts have defined clear and convincing evidence as “more than a preponderance of the evidence but less than proof beyond a reasonable doubt.  Clear and convincing proof will be shown when the truth of the facts asserted is ‘highly probable.’”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).

            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.

            Appellant 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 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972)).  In State v. Johnson, 679 N.W.2d 169, 174 (Minn. App. 2004), this court concluded

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).

Because we conclude that the district court’s failure to make the necessary Austin findings requires reversal and remand for additional findings, we do not address the issue appellant raises regarding the need for confinement outweighing the policy favoring probation, nor do we address appellant’s pro se arguments that re-argue the sufficiency of the evidence.

            Reversed and remanded.