State v. Scherer, No. A05-1034 (MN 3/28/2006)
| Decision Date | 28 March 2006 |
| Docket Number | No. A05-1034.,A05-1034. |
| Court | Minnesota Supreme Court |
| Parties | State of Minnesota, Respondent, v. Michael Albert Scherer, Appellant. |
Appeal from the District Court, Hennepin County, File No. 03039149.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Caroline Lennon, Assistant County Attorneys, Jamie Wiemer (certified student attorney), (for respondent)
Mark D. Kelly, (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
UNPUBLISHED OPINION
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.
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.
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) (), 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) (); State v. Morrow, 492 N.W.2d 539, 544-45 (Minn. App. 1992) (); State v. Thompson, 486 N.W.2d 163, 165 (Minn. App. 1992) (); State v. Rock, 380 N.W.2d 211, 213 (Minn. App. 1986) (...
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