                         This opinion will be unpublished and
                         May not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-1695

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Larry Kenneth Karius,
                                       Appellant.

                                  Filed June 20, 2016
                                       Affirmed
                                      Ross, Judge

                              Dakota County District Court
                              File No. 19HA-CR-11-2402

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Jr., Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,

Tracy M., Judge.

                        UNPUBLISHED OPINION

ROSS, Judge

      Larry Karius was angry and intoxicated in a Dakota County bar when he told the

bartender and patrons who were trying to restrain him that he was going to return and kill
them. Karius pleaded guilty to making terroristic threats, and the district court stayed the

imposition of his sentence on probationary terms. Karius failed to complete a chemical-

dependency evaluation and anger-management therapy and refused to submit to testing or

abstain from using drugs. The district court revoked his probation and executed his prison

sentence. Because Karius’s assertion that the district court revoked his probation

reflexively is belied by the record, we hold that the court acted within its discretion, and

we affirm.

                                         FACTS

       This case originates from a July 2011 barroom fracas. Larry Karius was drunk at the

Shenanigans bar in Dakota County, and things became personal and “all blew up” when he

told the bartender, “I see why Tom divorced you.” The bartender told him to leave. Later

asked, “And you became angry about that?,” Karius explained, “I wanted to finish my

beer.” The disagreement got physical, and during the tussle Karius told the bartender and

the patrons who were trying to restrain him that he was going to return and kill them.

       The state charged Karius with one felony count of terroristic threats and two

misdemeanor counts of fifth-degree assault. Karius pleaded guilty to terroristic threats and

the state dismissed the other charges. The district court stayed imposition of Karius’s

sentence in April 2013 with probationary terms.

       Eleven months later, in March 2014, Karius admitted that he violated his probation

in various ways: he failed to complete anger-management therapy; he failed to complete a

chemical-dependency evaluation; he left the state without permission and failed to return

when his probation officer directed him to return; and he failed to abstain from illegal


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drugs. The district court ordered him to serve 150 days in jail and reinstated his probation,

adding the conditions that he complete a chemical-dependency evaluation and chemical-

dependency and anger-management treatment while in custody.

       Karius was back in custody in June 2015, again accused of violating his probation.

He again admitted to various violations: he failed to complete a chemical-dependency

evaluation; he failed to abstain from illegal drugs; and he failed to participate in urinalyses.

Karius claimed that although he “probably wasn’t ready for treatment before,” he was

indeed “ready for treatment now.” The district court was dubious. It found Karius’s change

of heart to be “too little too late.” It revoked his probation on the following findings and

imposed the following sentence:

              You failed to minimally comply with probation, even provide
              a phone number contact information, show up for meetings,
              comply with any UAs, complete a chemical dependency
              evaluation, you were sentenced way back in April of 2013, and
              there’s just a clear indication that you’re not willing to
              cooperate or comply with the court orders or probation
              directives so I find that you’re -- the violation was intentional
              and inexcusable, and that the need for confinement clearly in
              this case outweighs the policies favoring probation and it
              would unduly depreciate the seriousness of this original
              conviction if I were to continue you on probation and your
              probation was not revoked at this time. So I find confinement
              is necessary and I am going to execute your sentence and
              commit you to the Commissioner of Corrections for a period
              of 21 months, which consists of 14 months of imprisonment, 7
              months on supervised release.

       Karius appeals.




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                                      DECISION

       Karius argues that the district court lacked a basis to revoke his probation. The

district court has broad discretion to determine whether sufficient evidence supports

revocation, and this court will not reverse that determination unless there has been a clear

abuse of that discretion. State v. Austin, 295 N.W.2d 246, 249–50 (Minn. 1980). Before a

district court may revoke probation, it must identify a specific probationary condition

violated, find that the probationer’s violation was either intentional or inexcusable, and find

that the need to confine the probationer outweighs the policies that favor probation. Id. at

250. In weighing the third factor, the court should consider the original offense and the

probationer’s intervening conduct in relation to three subfactors: (1) whether confinement

is necessary to protect the public from the probationer; (2) whether the probationer needs

correctional treatment best provided in confinement; and (3) whether failing to revoke

probation would unduly depreciate the violation’s seriousness. State v. Modtland, 695

N.W.2d 602, 606–07 (Minn. 2005). The district court must make specific findings that

convey the “substantive reasons for revocation and the evidence relied upon” and may not

simply “recit[e] the three factors and offer[] general, non-specific reasons for revocation.”

Id. at 608. We review de novo whether the district court made the necessary Austin

findings. Id. at 605.

       The district court here found that the Austin factors were satisfied. Focusing on the

third Austin factor, Karius argues that the district court reflexively revoked his probation

and that it inadequately analyzed whether he could avoid antisocial behavior. His argument

is not convincing.


                                              4
       Karius acknowledges that the district court found that his confinement is necessary,

but he argues that we should reverse because the court “never said what confinement was

necessary for.” Because the district court never specified that protecting the public from

his criminal conduct necessitated the confinement, argues Karius, we must reverse. We are

not convinced. Although the district court’s analysis was brief, the judge’s comments

demonstrate a nonreflexive treatment of the circumstances. By telling Karius, “[I]f I look

at your history, clearly, when you drink, you lose control. You get into trouble,” the district

court judge implicitly held that incarcerating Karius was necessary to prevent his chemical-

inspired violence. The judge did not buy Karius’s claim that he is ready for treatment,

observing that he “failed to minimally comply with probation” and that “there’s just a clear

indication that [he’s] not willing to cooperate or comply with the court orders or probation

directives.” The district court’s assessment is well supported by Karius’s violation history.

Karius admitted to failing four probationary conditions just 15 months before he admitted

to failing three more conditions (and he was in jail for 5 of those 15 months). The record

leaves no room for us to doubt the district court’s patience and leniency, and certainly no

room to doubt its careful consideration of the third Austin factor.

       The district court did not abuse its discretion.

       Affirmed.




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