Minnesota Pollution Control Agency, Respondent, City of St. Paul, Respondent, City of Minneapolis, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-23

State of Minnesota,

Respondent,

vs.

James Charles Erickson,

Appellant.

Filed June 20, 2000

Affirmed

Toussaint, Chief Judge

Anoka County District Court

 File No. K9972446

 Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for respondent)

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

Robert M.A. Johnson, Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303  (for appellant)

            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

After appellant James Charles Erickson, pleaded guilty to first-degree criminal sexual conduct in 1997, the sentencing court stayed appellant's 86-month prison sentence and instead placed him on probation, subject to conditions.  After appellant on several occasions violated the conditions of his probation, the district court revoked appellant's probation and executed the stayed sentence.  Appellant argues that the district court erred in revoking appellant's probation based on his failure to remain law-abiding and of good behavior.  Because the district court did not abuse its discretion in revoking appellant's probation, we affirm.

D E C I S I O N

The trial court's decision to revoke probation will not be reversed absent a clear abuse of discretion.  State v. Theel, 532 N.W.2d 265, 266-67 (Minn. App. 1995) (quoting State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980)), review denied (Minn. July 20, 1995).  "The trial 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.  "In general, a trial court's findings of fact will not be disturbed unless clearly erroneous."  Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1999) (citing Minn. R. Civ. P. 52.01).

            Before revoking probation,

the court must 1) designate the specific [probation] 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 (Minn. 1980).  When considering whether revocation is appropriate, the supreme court has cautioned courts not to revoke as "a reflexive reaction to an accumulation of technical violations."  Id. at 251 (citation omitted).  The district court must balance "the probationer's interest in freedom and the state's interest in insuring his rehabilitation and the public safety."  Id. at 250 (citation omitted).  The American Bar Association Standards for Criminal Justice, quoted by the supreme court in Austin, state that revocation is appropriate when "the offender is in need of correctional treatment which can most effectively be provided if he is confined."  A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970), quoted in Austin, 295 N.W.2d at 251.  The Minnesota Sentencing Guidelines further provide that revocation of a stayed prison sentence is justified when, "[d]espite prior use of expanded and more onerous conditions of a stayed sentence, the offender persists in violating the conditions of the stay."  Minn. Sent. Guidelines III.B.

Appellant argues that the district court abused its discretion when it revoked his probation without making explicit written findings.  Minn. R. Crim. P. 27.04, subd. 3 (4), states that the district court "shall 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."  This court has held that the district court's failure to make written findings that a probation condition was intentionally violated is not an abuse of discretion provided the court makes explicit findings on the record of the proceedings.  State v. Balma, 549 N.W.2d 102, 105 (Minn. App. 1996).

Toward the end of appellant's second revocation hearing, the trial court stated that the appellant had violated his probation by his use of marijuana and his failure to remain law-abiding.  The trial court found that appellant violated the no-contact order by associating and living with Katherine Bowers, whom appellant was accused of assaulting.  The trial court: (1) did not credit appellant and Ms. Bowers' testimony that the assaultive behavior did not occur; (2) found that there was sufficient evidence to conclude that appellant had committed assault; and (3) concluded appellant had violated his probation by committing an assaultive offense.  Therefore, the district court did clearly state on the record the reasons for revoking appellant's probation.      

Appellant also argues that 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). 

The district court had clear and convincing evidence that appellant had violated his probation.  During the first revocation hearing, the trial court received evidence that appellant had: (1) violated rules while in jail; (2) missed several months of sexual offender treatment; and (3) had acted abusively towards his probation officer.  Appellant was also found guilty of several misdemeanors.  On two occasions after his first revocation hearing, appellant tested positive for drug use.  During the revocation hearing, appellant admitted to using marijuana.

The district court did not abuse its discretion in revoking appellant's probation.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.