Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Richard M. Arney, Washington County Attorney, John W. Fristik, Assistant County Attorney, 14900-61st Street North, Stillwater, MN 55082 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue S.E., Ste. 600, Minneapolis, MN 55414 (for appellant)

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

In 1994, appellant Richard Clemons pleaded guilty to fourth-degree criminal sexual conduct and was sentenced to a 36-month prison term. The district court stayed execution of the sentence, however, and placed appellant on probation for 10 years, subject to the condition that appellant complete a psychological evaluation and follow his probation officer's recommendation regarding a sex-offender treatment program. Subsequently, the probation officer recommended revocation of appellant's probation because appellant failed to complete a sex offender treatment program successfully and had been charged with fifth-degree criminal sexual conduct. At a revocation hearing, appellant admitted that he violated his probation by not completing the sex offender program. The district court revoked appellant's probation, vacated the stay, and ordered execution of appellant's 36-month sentence. We affirm.

Although appellant concedes that he violated the conditions of his probation, he argues that the district court abused its discretion in revoking his probation. Appellant maintains that the district court erred because the policies favoring continuing his probation outweigh the need for his confinement. Specifically, appellant contends that a letter accepting appellant into a sex offender treatment program at the University of Minnesota for a 90-day trial period to assess his amenability to outpatient treatment, "contradicts" the district court's finding that without inpatient treatment, appellant is a risk to the community.

The record indicates that in 1991 appellant was convicted of fourth-degree criminal sexual conduct in Dakota County, granted a stay of execution of sentence, and placed on probation. While on probation for his 1991 conviction, appellant failed to complete a sex offender treatment program (he was discharged three times from Project Pathfinders and another program for missing appointments) and was charged with third-degree criminal sexual conduct. Consequently, the Dakota County district court revoked appellant's probation, vacated the stay, and executed the sentence.

In 1994, appellant was convicted in Washington County upon his guilty plea to fourth-degree criminal sexual conduct. While on probation for his 1994 conviction, appellant again failed to complete a sex offender treatment program and was charged with another crime (fifth-degree criminal sexual conduct). We conclude that appellant's inability to complete outpatient treatment programs and his repeat offenses while on probation furnish ample evidence to support the district court's finding that without inpatient treatment, appellant presents a public risk.

Moreover, the mere fact that a treatment program has accepted appellant on a 90-day trial basis to assess the possibility of outpatient treatment, does not "contradict" the district court's finding that appellant required inpatient treatment given his unsuccessful outpatient treatment history. See Austin, 295 N.W.2d at 249 (affirming revocation of probation although director of drug treatment program testified defendant would be considered a good risk for the program and would be accepted); State v. Marti, 372 N.W.2d 755, 759 (Minn. App. 1985) (affirming revocation of probation where evidence showed non-secure setting of halfway house that had admitted defendant was unsuitable), review denied (Minn. Oct. 11, 1985). Therefore, the district court properly exercised its discretion in revoking appellant's probation.

Affirmed.