                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-0709

                                     State of Minnesota,
                                        Respondent,
                                              vs.

                                    Jeremy Allen Hible,
                                        Appellant.

                                 Filed December 22, 2014
                                        Affirmed
                                      Chutich, Judge

                              Sherburne County District Court
                                  File No. 71-CR-07-241

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Samuel Wertheimer, II, Assistant
County Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Jeremy Hible challenges the district court’s revocation of his probation,

claiming that the district court abused its discretion when it found that the need for his
confinement outweighed the policies favoring probation. Because sufficient evidence

supports the district court’s decision to revoke probation here, we affirm.

                                          FACTS

       In July 2007, appellant Jeremy Hible pleaded guilty to one count of first-degree

criminal sexual conduct for sexually abusing his younger sister over a two-year period.

The district court stayed imposition of a sentence, placed Hible on 30 years’ probation,

and ordered him to serve one year in jail. The conditions of Hible’s probation required

him to enter into and successfully complete a sex-offender-treatment program and

prohibited him from accessing pornography, among other things.

       In December 2007, Hible violated his probation when he failed to contact his

probation officer within 24 hours of his sentence. Hible admitted to the failure. The

district court found that the violation was intentional and without excuse but also found

that sanctions were not warranted and reinstated the original terms and conditions of

probation. The district court warned Hible “if you don’t go to treatment, if you don’t do

what the agent is telling you to do, you will go to prison.” Hible said that he understood

the consequences of not complying with these terms.

       In August 2011, Hible was terminated from CORE, an outpatient sex-offender-

treatment program, for missing meetings. Hible received an intermediate sanction for

this violation. He was reinstated to the program and ordered to complete 16 hours of

community service work.

       In June 2013, Hible violated probation again when he failed to complete his sex-

offender-treatment program and admitted to accessing pornography.             Hible initially


                                             2
denied accessing pornography and was suspended from the CORE program for lying to

treatment providers. The court ordered Hible to serve 60 days in jail, instructed him to

complete his sex-offender program, and reinstated all the original terms and conditions of

probation. The district court also told Hible “I am not going to take this again in the

future. If there is another violation of your probation, I will send you to prison. And I’m

not going to listen to any other excuses.”

       In January 2014, Hible violated his probation for a fourth time when he again

failed to complete his sex-offender-treatment program and admitted to accessing

pornography.    At the hearing for Hible’s January 2014 probation violation, Hible’s

primary counselor from CORE testified. She said that in November 2013, she terminated

Hible from CORE’s outpatient program for the sixth time because he accessed

pornography daily, failed to attend required couples therapy sessions with his wife, and

failed to complete his daily workbook assignments. She also testified that the average

person could complete the outpatient program in two years whereas Hible had been in the

program for five years and still had not completed it. Based on the counselor’s training

and experience, she believed that Hible was not a suitable candidate for an outpatient

treatment program.

       Hible’s probation officer, who had been overseeing his probation for five years,

also testified. The probation officer said that she visited Hible many times in the office

and field after his June 2013 probation violation. In their conversations, she said that

Hible denied accessing pornography and only admitted to it after he failed the CORE




                                             3
polygraph test. She also recommended execution of Hible’s sentence if he could not

afford an inpatient treatment program.

       The inpatient clinical director at Alpha Human Services Residential Sex Offender

Treatment Program (Alpha) also testified. The clinical director said that Hible was

enrolled in Alpha’s inpatient program from December 4, 2013, to January 29, 2014, for a

psychological evaluation to determine if he were a suitable candidate for the program.

The evaluation revealed that Hible had a low risk of recidivism, but the clinical director

observed that Hible had problems following the program’s rules and that he “simply

pushed boundaries, tried to get things or do things that he wanted to do without

necessarily following the proper procedures.” Additionally, the clinical director testified

that Alpha’s inpatient treatment program costs roughly $93 per day, or $35,000 for the

entire 13-month program, and that no insurance policy currently covers it. The clinical

director also recommended that Hible be committed to an inpatient treatment program.

       The district court revoked the stay of imposition, noting that Hible continually

violated the two main conditions of his probation—completing his sex-offender-

treatment program and abstaining from viewing pornography—and that his violations

were intentional and without excuse. And, in the district court’s opinion, the “most

chilling[]” fact was the clinical director’s report that cited treatment failures as a known

factor to increase the risk of re-offense. Because of Hible’s continued violations, the

district court found that the need for confinement outweighed the polices favoring

probation. The district court then imposed and executed the presumptive sentence of 144

months.


                                             4
                                     DECISION

       Hible contends that the district court abused its discretion when it revoked his

probation because the need for his confinement does not outweigh the policies favoring

probation. Specifically, Hible argues that he remains a suitable candidate for inpatient

treatment and that the district court should have imposed intermediate sanctions. The

state counters, and we agree, that sufficient evidence supports the district court’s

revocation of probation.

       The district court has broad discretion to determine if sufficient evidence supports

revocation of probation, and we will only reverse if there is a clear abuse of discretion.

State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).

       A.     Austin Factors

       When an offender violates any of the conditions of probation, the district court

may stay the sentence, impose a sentence and stay its execution, or impose a sentence and

order its execution. Minn. Stat. § 609.14, subds. 1, 3 (2012). The “purpose of probation

is rehabilitation and revocation should be used only as a last resort when treatment has

failed.” Austin, 295 N.W.2d at 250. Furthermore, a district court’s decision to revoke

probation 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 251 (quotation omitted).

       In Austin, the supreme court said that when a district court revokes probation, it

must: (1) specify the probation condition that was violated, (2) find that the violation was




                                             5
either intentional or inexcusable, and (3) find that the need for confinement outweighs the

policies favoring probation. Id. at 250.

       Hible challenges the district court’s finding under the third Austin factor. Under

this factor, the district court should not revoke probation unless one of the three factors is

also present: (1) confining the offender is necessary to protect the public against further

criminal acts, (2) the correctional treatment that the offender requires can be most

effectively provided in confinement, or (3) the seriousness of the violation would be

unduly depreciated if probation were not revoked. Id. at 251.

       B.     Third Austin Factor

       The district court found that Hible violated two conditions of probation: successful

completion of sex-offender treatment and abstaining from the use of pornography. The

district court also concluded that these violations were intentional and without excuse.

Because of these violations, the district court found that the need to confine Hible

outweighed the policies favoring his continued probation. The district court feared that if

it did not respond appropriately to his latest violation, Hible would not appreciate the

severity of his continued failure to complete treatment. The district court also concluded

that Hible would receive the most effective correctional treatment in confinement.

       Hible argues that the need for his confinement does not outweigh the policies

favoring probation. Hible claims that because he self-reported his pornography use and

discussed these lapses in group therapy, his treatment has not failed. But evidence in the

record contradicts his claim.




                                              6
       Hible was enrolled in the outpatient sex-offender-treatment program for over five

years and expelled on six different occasions. Hible only felt “compelled” to self-report

his pornography use after he failed a polygraph test. Moreover, Hible violated probation

four times. The conduct that led to his June 2013 probation violation—not completing

his treatment program and accessing pornography on a daily basis—was exactly the same

conduct that led to his January 2014 violation. Finally, Hible’s probation officer, his

primary counselor, and the clinical director who evaluated Hible all testified that he is not

a suitable candidate for an outpatient treatment program.

       Hible argues that he has taken several steps to reinforce his commitment to an

outpatient treatment program: he has a new job and a supportive employer, he installed

new software on his phone to allow his probation officer to monitor his Internet use, and

his wife supports his therapy. But Hible made similar promises after his June 2013

probation violation and then relapsed into the same destructive behavior. Hible also

contends that prison is unnecessary because he can complete an inpatient treatment

program at Alpha. But the Alpha clinical director testified that Hible had problems

following the rules of the inpatient program and nothing in the record demonstrates that

Hible has the financial ability to pay for the program’s $35,000 cost.

       Because sufficient evidence supports the district court’s finding that the need for

confinement outweighed the policies favoring probation here, it properly exercised its

discretion when it revoked Hible’s probation.

       Affirmed.




                                             7
