State of Minnesota, Respondent, vs. Collynn Larmos Olsen, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-1447

State of Minnesota,
Respondent,

vs.

Collynn Larmos Olsen,
Appellant.

  Filed September 18, 1996
Reversed and remanded
Thoreen, Judge

1

Hennepin County District Court
File No. 93018344

Hubert Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minenapolis, MN 55487 (for Respondent)

Mary M. McMahon, 597 Lincoln Avenue, St. Paul, MN 55102; Michael F. Cromett, E1314 First National Bank Building; St. Paul, MN 55101 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Thoreen, Judge.
U N P U B L I S H E D O P I N I O N

THOREEN , Judge
This appeal is from an order revoking probation imposed for a 1993 conviction for second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g). Appellant Collynn Olsen argues that the trial court, prejudging whether he committed a probation violation calling for revocation, abused its discretion in revoking his probation without a showing that he intentionally or inexcusably violated a condition of his probation. We reverse and remand.
  FACTS
Appellant Collynn Olsen was charged in March 1993 with two counts of second-degree criminal sexual conduct for sexually touching his wife's 12-year-old niece. He agreed to plead guilty to one count in exchange for dismissal of the second count. In the course of a pre-plea psychological evaluation, Olsen admitted that he had molested three other girls, of about the same age, in addition to his current victim. The trial court accepted the plea and followed the recommendation in the PSI, sentencing Olsen to a stay of imposition and placing him on probation for 10 years.
At sentencing, the court outlined the conditions of probation, including the following: "In addition, you must not have unsupervised visitation with any individual under the age of 18." The court also stated:
You are to follow all of your probation officer's recommendations and to keep in contact with that person. You must follow all of their rules, because those rules are essentially my orders.

Following sentencing, a warrant of commitment was issued, as well as a "Stay of Imposition of Sentence and Probation Order." Both of these documents stated the condition of probation quoted above in substantially different terms: "[N]o contact with children under 18 years."
Olsen completed treatment at Project Pathfinders, as required as a condition of his probation, in September 1995. Olsen's primary therapist, Gerald Lilja, testified that beginning in April 1995, a woman named Pam Hall began participating in Olsen's treatment program, attending monthly meetings with Lilja and Olsen. Lilja testified that from the beginning he was aware that Hall had two minor daughters, but that he understood Olsen was having no contact with them.
Olsen's probation officer in Anoka, John Hassler, testified that he learned of Olsen's relationship with Hall at a meeting with Lilja and Olsen in the summer of 1995. Hassler, Lilja and Olsen met in September 1995 to set up an aftercare plan upon Olsen's completion of the Pathfinder program. This plan included conditions designed, in part, to deal with Olsen's relationship with Hall and her daughters. One of these conditions was that Olsen "have no contact with minor females without the knowledge of, and/or participation of a supervising adult." Hassler testified that he assumed that these conditions satisfied the court-imposed condition of probation, although he also saw it as an "informal modification."
Olsen filled out a daily reporting form on October 3, 1995, on which he reported to the probation office that he was living with Hall and her two daughters. Olsen had moved in with Hall on October 1, and bought a house with her on November 1, 1995. He moved out when his newly-assigned probation officer reviewed the file and noted that there had been no modification of the conditions of probation.
A meeting was held at which a preventative plan was developed, and Hall and Olsen were married on February 24, 1996, on the understanding that they would not be living together, without court approval. Olsen's new probation officer submitted a report outlining the history of the situation and the Pathfinder recommendation that Olsen be allowed supervised contact with Hall's daughters, and recommending that the court approve a modification of the probation agreement in line with the Pathfinder recommendation. The trial court issued an arrest and detention order, and ordered Olsen held without bail, noting that Olsen had moved into a home with a child the same age as his current victim, against court orders. Following a probation revocation hearing, the court revoked Olsen's probation, imposing and executing a prison sentence of 21 months. This appeal followed.
  D E C I S I O N
Before revoking probation, the trial 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 the need for confinement outweighs the policies favoring probation.

State v. Austin , 295 N.W.2d 246, 250 (Minn. 1980).
The state bears the burden at a revocation hearing of presenting clear and convincing evidence of a violation and of the necessity of revoking probation in response to it. Minn. R. Crim. P. 27.04, subds. 2(1)b, 3(3).
The trial court has broad discretion in determining whether there is sufficient evidence to revoke probation, and the trial court's decision should be reversed only if there is a clear abuse of discretion. Austin , 295 N.W.2d at 249-50. There is insufficient evidence to show that Olsen intentionally or inexcusably violated a condition of his probation. Moreover, the trial court stated at Olsen's first appearance, when the only matter before the court was the probation officer's recommendation of a modification of the conditions of probation, that if Olsen did not rebut the evidence in the file, he was going to prison. Olsen argues that he was denied his right to a determination by a neutral decisionmaker. See Black v. Romano , 471 U.S. 606, 612, 105 S. Ct. 2254, 2258 (1985) (in probation proceedings, probationer is entitled to "a neutral hearing body"). We agree.
The trial court at sentencing warned Olsen that a condition of his probation was no "unsupervised visitation" with children under 18. Although written documents later given to him stated "no contact" with minors, the state concedes that fairness requires that the "no unsupervised visitation" directive, rather than the "no contact" order in the written documentation, be taken as the condition of Olsen's probation.
The record does not support the trial court's implied finding that Olsen was deceptive with his therapist or probation officer, or that they only "ratified" the living arrangement after the fact. Without such evidence, this court cannot conclude that Olsen intentionally or inexcusably violated a condition of his probation.
Probation Officer Vavra's report includes statements from which it could be inferred that Olsen's probation officer and therapist were kept uninformed about his relationship with Hall until after the fact. But the testimony of both Hassler and Lilja at the probation revocation, as well as the October 3, 1995, reporting form, and the rest of the record, contradict that inference. Hall had been part of Olsen's treatment program since April 1995. Lilja knew Hall had minor daughters. Lilja and Hassler developed in September 1995 conditions designed to recognize Olsen's relationship with Hall. The great weight of the evidence is against a finding that Olsen concealed the relationship, or plans to move in with Hall, from either his therapist or probation officer. Moreover, Olsen had been told at sentencing that he should follow the rules and recommendations of his probation officer, who, knowing of the Hall-Olsen relationship, reformulated the "no unsupervised visitation" condition.
We conclude that the trial court abused its discretion in revoking Olsen's probation. In considering the record of the proceedings in the trial court, we conclude that the matter should be remanded to the district court for reassignment and the scheduling of a hearing before a different judge on the request for a modification of the conditions of probation, and any other motions before the court. Given the delay resulting from the filing and scheduling of this appeal, we order the immediate release of appellant from prison, subject to the conditions of probation originally imposed, pending the scheduling of a hearing in the district court.
  Reversed and remanded.