                            This opinion will be unpublished and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
                                       A15-1673

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                  Brandon Harley Johansen,
                                         Appellant.

                                     Filed April 25, 2016
                                          Affirmed
                                        Larkin, Judge

                               Sherburne County District Court
                                   File No. 71-CR-14-344


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

Kathleen A. Heaney, Sherburne County Attorney, Dawn R. Nyhus, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Rory Patrick Durkin, Giancola-Durkin, P.A., Anoka, Minnesota (for appellant)


         Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,

Judge.

                           UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges the district court’s revocation of his probation, arguing that he

did not intentionally or inexcusably violate probation and that the need for confinement
does not outweigh the policies favoring probation. Because the district court did not abuse

its discretion by revoking probation, we affirm.

                                         FACTS

       Respondent State of Minnesota charged appellant Brandon Harley Johansen with

third-degree criminal sexual conduct. The complaint alleged that Johansen engaged in

sexual intercourse with a 13-year-old girl several times in July 2013. According to the

complaint, the victim told law enforcement that Johansen knew that she was 13 years old.

Johansen was 19 years old at the time.

       In September 2014, Johansen pleaded guilty to third-degree criminal sexual

conduct. In December 2014, the district court sentenced Johansen to a stayed 48-month

prison term and placed Johansen on probation for 15 years. Johansen’s probationary

conditions required him to enter and successfully complete sex-offender treatment and

follow all recommendations, including adjunctive therapies; to have no unsupervised

contact with minor females, including his own daughter, until deemed appropriate by the

treating therapist; and to abstain from the use or possession of alcohol or mood-altering

substances. Johansen was also required to serve 180 days in jail.

       After completing his jail term in April 2015, Johansen obtained a Rule 25

evaluation. The evaluator recommended that Johansen either complete an outpatient

chemical-dependency program or attend support meetings, seek a male sober support

person, and engage in weekly therapy sessions with a therapist specializing in addiction.

       In July 2015, Johansen’s probation officer filed a probation-violation report,

alleging that law-enforcement officers had found Johansen with a minor female in a hotel


                                             2
room, Johansen appeared to be under the influence of alcohol, Johansen admitted that he

had consumed alcohol, Johansen failed a drug test and admitted smoking marijuana, and

Johansen was terminated from outpatient sex-offender treatment at CORE Professional

Services (CORE) based on his contact with minors and use of alcohol and marijuana.

       Johansen appeared in district court and admitted the probation violations. When

asked by the district court whether he had any excuse or justification for the violations,

Johansen responded that he had “been really depressed about not seeing [his] daughter,”

though he admitted that this was “not a good excuse.” Johansen also explained that since

the violations, he had begun treatment for depression and planned to set up a new chemical-

dependency evaluation and seek chemical-dependency treatment.

       Even though the prosecutor described Johansen as being “on the fast track to

prison,” she indicated that the state was willing to give him one last chance.         She

recommended that the district court order Johansen to serve 90 days in jail, reinstate all

conditions of probation, and require him to complete an updated chemical-dependency

evaluation and to enter a sex-offender treatment program. Johansen asked the district court

to impose 30 days of jail time but otherwise appeared to agree with the state’s

recommendations.

       The district court declined to give Johansen another chance on probation for the

following reasons:

                     I have an untreated sex offender. I have a chemically
              dependent individual who is untreated. And I have him
              consorting with minors. I mean, consorting with minors is
              what got him here in the first place. Obviously the message
              has not been delivered.


                                            3
                     ....

                      Sir, I have some real difficulty in these violations. You
              were charged and convicted of preying upon a minor female.
              You were identified as needing some control over alcohol use.
              You blew off the alcohol use. You blew off the sex offender
              treatment. You ignored the Court’s admonition to have no
              contact with minors. You’re smoking dope. These are horribly
              serious violations in light of the serious nature of the offenses
              you have. They are completely without excuse or justification.
              It leads the Court to conclude that you’re not amenable to
              probationary status. If you had violated perhaps one, or maybe
              two; but all of these violations just indicate that you’re not a
              candidate for probationary status.
                      I would be derelict in my oath if I were to allow
              somebody as dangerous as you out on the streets. You have
              proven that you’re a danger by the original offense; and you
              have compounded that by failing to undertake the fundamental
              programming that is designed to minimize your
              dangerousness. We can’t have that.
                      Accordingly, I am going to find further that public
              safety would outweigh keeping you on a probationary status;
              that the probationary status is insufficient to protect the public;
              that the only rational alternative left to the Court is
              incapacitation.

       The district court revoked Johansen’s probation and executed his 48-month prison

sentence.1 Johansen requested reconsideration, and the district court denied his request.

Johansen appeals.


1
 Johansen also admitted probation violations regarding a separate fifth-degree controlled-
substance conviction and asked the district court to vacate the stay of imposition in that
case, so he could serve the prison sentence concurrently with the prison sentence in this
case. The district court vacated the stay of imposition and imposed a 13-month concurrent
prison sentence. Although Johansen asserts that “[the controlled-substance] revocation
should be reversed as well,” Johansen did not file an appeal in the controlled-substance
case, and it is not before us for review. See Minn. R. Crim. P. 28.02, subd. 4(1) (“A
defendant appeals by filing a notice of appeal with the clerk of appellate courts with proof
of service on the prosecutor, the Minnesota Attorney General, and the court administrator
for the county in which the judgment or order appealed from is entered.”).

                                              4
                                       DECISION

        Before 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.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). In assessing the third

Austin factor, the supreme court has stated that district courts “should refer” to the

following American Bar Association Standards for Criminal Justice:

              Revocation followed by imprisonment should not be the
              disposition . . . unless the court finds on the basis of the original
              offense and the intervening conduct of the offender that:

                         (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.

State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quoting Austin, 295 N.W.2d 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.” Austin, 295 N.W.2d at 251

(quotations omitted). There must be clear-and-convincing evidence that a probation

violation exists. Minn. R. Crim. P. 27.04, subds. 2(1)(c)b, 3(1). “The [district] court has



                                               5
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.

       Johansen contends that the district court’s findings regarding the second and third

Austin factors are not supported by the evidence. As to the second Austin factor, whether

the probation violation was intentional or inexcusable, Johansen argues that “there is not

sufficient evidence in the record to establish that [he] intended by his actions to violate his

probation by drinking or using marijuana.” Johansen claims that he was suffering from

depression, that he has a chemical-dependency problem, and that he is willing to have an

updated chemical-dependency evaluation and follow its recommendations. Johansen’s

claims are unavailing for the reasons that follow.

       Johansen testified that he was aware that one of his conditions of probation was to

abstain from alcohol and controlled-substance use. Yet there is no evidence in the record

that Johansen sought treatment for his chemical-dependency problem, even though he was

aware of that problem and a chemical-dependency evaluator recommended that he either

complete an outpatient chemical-dependency program or attend a support group and

therapy sessions. Moreover, even though Johansen testified that he was “really depressed

about not seeing [his] daughter” and that he began to receive treatment for depression after

he violated probation, he did not present any evidence other than his own testimony to

show that depression prevented him from complying with his conditions of probation such

that his violations were not intentional.




                                              6
       Johansen argues that the probation violations were not inexcusable because the

CORE sex-offender-treatment program was willing to allow him to return to the program.

Johansen asks: “If CORE was willing to take him back – in fact wanted him back, could

these violations be deemed inexcusable?”          Apparently, CORE was willing to allow

Johansen to participate in sex-offender treatment after a sanction for his probation

violations. But CORE’s willingness to allow Johansen to participate in its program does

not establish that Johansen’s probation violations were excusable. Whether the violations

were inexcusable was for the district court to determine.

       Regarding the third Austin factor, whether the need for confinement outweighs the

policies favoring probation, Johansen argues that the record does not establish that he is a

threat to the public or that he will engage in further criminal activity. Johansen contends

that he used alcohol and marijuana to self-medicate his untreated depression, that he is

willing to complete a chemical-dependency evaluation and undergo any recommended

treatment, and that the behaviors giving rise to the probation violations can and will be

corrected in treatment. Johansen asserts that “there was absolutely no evidence indicating

that [he] could not, or would not be successful” if the district court had imposed

intermediate sanctions and continued probation supervision.

       There is little evidence in the record to support Johansen’s assertion that he will now

take probation seriously. Johansen tested positive for THC and was found to be under the

influence of alcohol approximately three months after being released from jail. There is

no evidence in the record that he participated in chemical-dependency treatment even

though it was recommended to him. CORE reported that Johansen missed scheduled


                                              7
therapy sessions, did not discuss his problems honestly, and otherwise struggled to show

motivation while participating in sex-offender treatment before he was terminated from

CORE’s program. This record supports the district court’s determination that Johansen is

“not a candidate for probationary status.”

       Johansen notes that “this was [his] first violation while on probation.” Although

Austin describes revocation as a “last resort,” it does not establish a right to one probation

violation without revocation. Id. at 250. Instead, the supreme court said that “revocation

should be used only as a last resort when treatment has failed.” Id. (emphasis added).

Because Johansen did not successfully complete sex-offender treatment and did not enter

chemical-dependency treatment despite being instructed to do so, the record supports the

district court’s implicit finding that treatment has failed. See id. at 251-52 (upholding

revocation where defendant “ha[d] been offered treatment but ha[d] failed to take

advantage of the opportunity or to show a commitment to rehabilitation”).

       Johansen argues that “the decision to revoke in this case was exactly the type of

decision condemned in Austin – a reflexive reaction to an accumulation of violations.” We

disagree. In Austin, the supreme court noted that “[i]n some cases, policy considerations

may require that probation not be revoked even though the facts may allow it” and

emphasized that a probation revocation “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. at 250-51 (quotations

omitted). But the supreme court ultimately concluded that policy considerations required

revocation in Austin.


                                              8
       The circumstances of this case are more egregious than those in Austin, which

involved a single violation stemming from Austin’s failure to follow his probation officer’s

instruction to timely return to jail if he did not enter a treatment program. Id. at 250. Even

though the director of the treatment program testified that Austin was a good candidate for

the program, the program was willing to accept him, and the conduct underlying the

violation was not related to the conduct underlying the offenses of conviction, the supreme

court nevertheless held that the district court did not abuse its discretion by revoking

Austin’s probation. Id. at 248-50. The supreme court reasoned that Austin “ha[d] been

offered treatment but ha[d] failed to take advantage of the opportunity or to show a

commitment to rehabilitation so it was not unreasonable to conclude that treatment had

failed.” Id. at 251. The supreme court also concluded that the record showed that “the

seriousness of his violation would be denigrated if probation were not revoked.” Id.

       In this case, Johansen violated three conditions of probation. He failed to complete

sex-offender treatment. He failed to abstain from drug and alcohol use. And he had contact

with a minor. Johansen’s unsupervised contact with a minor female and his failure to

complete sex-offender treatment specifically relate to the offense of conviction. Cf. id. at

248-50 (upholding probation revocation where the violation was unrelated to the

underlying offense). These are not technical probation violations like a minor traffic

offense or a failure to report a change of address; they are substantial. Cf. Black v. Romano,

471 U.S. 606, 622, 105 S. Ct. 2254, 2263 (1985) (noting that a minor traffic violation may

not justify probation revocation); United States v. Reed, 573 F.2d 1020, 1025 (8th Cir.

1978) (vacating revocation order where defendant’s only probation violations involved


                                              9
failures to report, to give notice of an address change, and to find employment). In sum,

Johansen’s probation violations are worse than the single violation in Austin, which

nonetheless justified revocation. See Austin, 295 N.W.2d at 248-50 (upholding probation

revocation). Johansen’s reliance on Austin is therefore unavailing.

       Johansen also relies on State v. Finch to argue that the district court did not

undertake a serious review of the third Austin factor. 865 N.W.2d 696 (Minn. 2015). In

Finch, the Minnesota Supreme Court reversed the district court’s probation revocation

where the district court unequivocally told the defendant that it would revoke his probation

for any violation and subsequently revoked the defendant’s probation after he violated

probation. Id. at 705.

       At sentencing in this case, the district court told Johansen that he would likely go to

prison on a first probation violation. That statement is not as unequivocal as the statement

in Finch that probation would be revoked if any violation occurred. See id. at 704.

Moreover, the district court here reasoned that Johansen had several probation violations

and that the violations were “horribly serious.” The district court explained that Johansen

posed a danger to the public such that the need for confinement outweighed the policies

favoring probation because he had “proven that [he was] a danger by the original offense”

and had “compounded that [danger] by failing to undertake the fundamental programming

that is designed to minimize [his] dangerousness.” This record shows that the district court

adequately considered the third Austin factor.

       In conclusion, Johansen’s violations are not technical, and the district court’s

revocation decision was not reflexive.      “The [district] court has broad discretion in


                                             10
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. The record

establishes that treatment had failed and that Johansen could not be counted on to avoid

antisocial activity. The district court therefore did not abuse its discretion by revoking

Johansen’s probation.

       Affirmed.




                                            11
