                         This opinion will be unpublished and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
                                    A14-1207

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Joseph Alan Ohlegren,
                                      Appellant.

                                  Filed May 26, 2015
                                       Affirmed
                                      Ross, Judge

                            Hennepin County District Court
                               File No. 27-CR-11-2373

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Jeffrey C. Dean, Jeffrey Dean Law Office, Minneapolis, Minnesota (for appellant)


      Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.

                       UNPUBLISHED OPINION

ROSS, Judge

      Joseph Ohlegren acquired internet videos depicting prepubescent boys engaged in

sex acts. Ohlegren pleaded guilty to possessing child pornography and the district court

sentenced him to a prison term that the court stayed subject to probationary conditions.
One condition was that Ohlegren avoid minors and another was that he follow his

probation officer’s instructions. The district court revoked Ohlegren’s probation and

ordered him to prison after he used the internet to arrange for a sex encounter with a

minor. Because clear and convincing evidence demonstrates that Ohlegren contacted a

minor, we affirm.

                                         FACTS

       Police obtained a warrant to search Joseph Ohlegren’s computer and found

pornographic videos depicting prepubescent boys engaged in sex acts. Ohlegren acquired

the videos from the internet. Ohlegren pleaded guilty to one count of possessing child

pornography, and the district court sentenced him to prison but stayed the sentence

provided that Ohlegren abide by several probationary conditions, including staying away

from minors and following all of his probation officer’s instructions. Ohlegren violated

his probation three times over the next eight months, but the district court did not revoke

his probation.

       Ohlegren participated in sex-offender treatment at the University of Minnesota.

For reasons unknown to this court and not apparent from the record, a psychologist in

that program thought it was prudent to advise Ohlegren to “explore” his sexuality.

Ohlegren’s exploration included using internet dating sites to arrange for sexual

encounters with men he met online. The psychologist encouraged Ohlegren to use those

sites but later acknowledged that he “never really told [Ohlegren] what he could or could

not do” when using them.




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       Ohlegren’s probation officer became concerned with Ohlegren’s “exploration”

after she discovered that Ohlegren was planning to meet with a “young teen” he had been

communicating with for months online. She decided in December 2013 to curtail

Ohlegren’s internet use. She then gave Ohlegren what she later described as a “clear

directive” that “using the [dating] sites for sexual hook-ups only was no longer allowed.”

She later testified describing this “clear directive” without using the word “only,” saying

that she told Ohlegren that he could no longer use the dating sites for “sexual hook-ups.”

But she continued to allow Ohlegren to use several dating sites, warning only that he

“proceed with caution” when doing so.

       Ohlegren then used a dating website to arrange for a sexual encounter with a boy.

The two met in a hotel room, engaged in a sex act, and then ate lunch together. Ohlegren

received a text message from the boy the next day. In that message the boy said that he

was 17 years old, not 18 years old as he had previously indicated to Ohlegren.

       Ohlegren’s probation officer learned about the text message and issued a summons

for Ohlegren to appear at a probation-revocation hearing. Ohlegren contested the

admissibility and reliability of the teen’s text message, contending that, as hearsay, it

could not constitute proof of the boy’s actual age. The hearing veered into a discussion

about the restrictions his probation officer imposed, and Ohlegren argued that he received

conflicting guidance from the officer about whether he could use the dating websites to

arrange for “hook-ups” (meaning sexual encounters) or whether he had to avoid using

those sites only if the sole purpose of his use was to arrange for these “hook-ups” (that is,

“for hook-ups only”). Ohlegren’s arguments failed to persuade the district court, which


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revoked his probation after it determined that he had contact with a minor and that he

failed to follow all of his probation officer’s instructions.

       This appeal follows.

                                       DECISION

       Ohlegren argues that the district court abused its discretion by revoking his

probation. A district court has discretion to revoke probation if it finds that the

probationer intentionally or inexcusably violated a condition of probation and the

violation shows that his need for confinement outweighs the policies favoring probation.

State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The state bears the burden of proving

a probation violation by clear and convincing evidence. State v. Ornelas, 675 N.W.2d 74,

79 (Minn. 2004).

       Ohlegren challenges the district court’s finding that he failed to follow his

probation officer’s instructions. The district court found that Ohlegren failed to abide by

the instruction that he not “use any internet sites for sexual ‘hook-ups.’” Ohlegren first

contends that any probation violation supporting revocation must have “been imposed by

the Court” and that the district court never itself prohibited him from using the internet

for sexual liaisons. The district court imposed the probation condition that Ohlegren had

to follow all of his probation officer’s instructions, and the court revoked his probation

for failing to follow this instruction. Ohlegren’s first argument therefore fails.

       This does not resolve the issue, however, because Ohlegren’s argument invokes

his due process right to fair notice. Due process requires that a probationer be given

“prior fair warning” as to what acts would violate his probation. Id. at 80 (quotation


                                               4
omitted). The state maintains that Ohlegren had prior fair warning about the internet-use

conduct that could lead to his probation being revoked. The record suggests otherwise.

As Ohlegren correctly asserts, his probation officer failed to put the challenged restriction

into writing. We are left only with the probation officer’s testimony characterizing the

directive that Ohlegren supposedly violated. She testified repeatedly but conflictingly that

she informed Ohlegren both that he could not use the dating websites for sexual “hook-

ups” and that he could not use the sites for sexual “hook-ups only.” The state never asked

questions that directed the officer to precisely declare that only one of the conflicting

instructions was actually given, leaving the record indicating that both were given.

       The state takes the position that the apparently conflicting instructions are the

same. The position is faulty. Advising a probationer that he may not use internet dating

services to arrange for sexual liaisons differs substantially from advising him that he may

not use the services only to arrange for sexual liaisons. One restriction is absolute,

prohibiting specific behavior altogether, while the other is qualified, effectively

permitting the restricted behavior so long as it includes additional behavior. If the

probation officer had directed Ohlegren not to use the sites to arrange for sexual “hook-

ups,” then Ohlegren would have violated the directive by using the site to arrange for the

sex encounter. But because the record indicates that the officer also directed Ohlegren not

to use the sites “for hook-ups only,” the instruction left Ohlegren to conclude that he

would not violate his probation by using the site to arrange both for sexual activity and

nonsexual activity. And the probation officer’s vague warning that Ohlegren should

“proceed with caution” when using the dating sites did nothing to tighten the instruction.


                                             5
       The state contended at oral argument that we should not concentrate on these

merely semantic differences. It urges us to rely instead on the probation officer’s

purported intention to prohibit using the internet for any sexual “hook-ups.” But looking

beyond the probation officer’s words describing her intention or her understanding

redirects us from the proper focus on whether the instruction actually given constitutes

fair warning about the acts that would violate Ohlegren’s probation.

       The state also implied at oral argument that revocation can rest on the fact that

Ohlegren’s probation officer could have entirely prohibited Ohlegren from using the

internet altogether. It certainly would have been prudent to prohibit all internet access to

someone who used the internet to acquire pornographic videos of young children and

later attempted to meet a young teen. Also prudent would be the lesser restriction of

prohibiting access at least to all dating websites. But the state invites us to speculate

about circumstances not before us. Here, a psychologist actually directed a man with

pedophilic tendencies to “explore” his sexuality, and intentionally or not, a probation

officer effectively permitted him to use the internet for sexual liaisons with the only

caveat being to “proceed with caution” and to include nonsexual activity. Had Ohlegren

been given the clear and absolute directive that the state argues could have been issued,

Ohlegren would have received a “clear directive” giving him “prior fair warning” about

unacceptable behavior. We need not wonder how that case would have been decided.

       Despite the weakness of the directive that Ohlegren received about his internet

use, we affirm the revocation. Without regard to whether Ohlegren disobeyed his

probation officer’s instruction that he not use the internet for sexual purposes, it is clear


                                             6
from the record that he failed to obey another of his probation officer’s instructions: he

contacted a minor. And because the district court itself imposed this instruction at

sentencing, Ohlegren’s decision to contact a minor means that he violated the district

court’s directive not to contact minors and the district court’s directive that he follow all

of his probation officer’s instructions because the officer instructed him not to contact

any minors. This directive was absolute and unambiguous.

       The district court’s finding that Ohlegren inexcusably contacted a minor is

sufficiently supported by evidence in the record establishing that Ohlegren contacted and

had sex with a 17-year-old boy. We reject Ohlegren’s contention that the finding of a

violation cannot stand because it rests substantially on the hearsay text message sent by

the youth about his age. The evidentiary rules prohibiting inadmissible hearsay do not

apply to probation hearings. See Minn. R. Evid. 1101(b)(3). The admission of hearsay

evidence at a probation hearing does not violate a defendant’s right to confront witnesses

so long as the defendant “can expose potential flaws” in the disputed evidence. State v.

Johnson, 679 N.W.2d 169, 174 (Minn. App. 2004). The district court entertained

Ohlegren’s argument that the boy’s message was not credible and that the state failed to

verify the boy’s proffered age. Because the district court allowed Ohlegren to expose

potential flaws in the message and contest its reliability, the court did not abuse its

discretion by admitting the text message, weighing its reliability, and relying on it.

       We also are not persuaded by Ohlegren’s credibility argument that, because the

boy had previously told Ohlegren that he was 18 years old, his text message revealing

that he was actually only 17 cannot constitute clear and convincing evidence of his actual


                                              7
age. The district court sitting as fact finder had the discretion to weigh the credibility of

the boy’s representation about his age. See State v. Dickerson, 481 N.W.2d 840, 843

(Minn. 1992). And it was certainly not unreasonable to rely on the boy’s post-liaison text

message as more credible than the boy’s prior, pre-liaison representation to Ohlegren that

he was 18. Ohlegren does not explain why it was beyond the district court’s discretion or

beyond reason to rely on the boy’s declaration. Because an individual’s own statement of

his age is clear and convincing evidence that he is the stated age, the district court had an

adequate basis to conclude that Ohlegren had contact with a minor.

        Ohlegren contends that the remaining Austin factors were not met because he did

not intentionally contact a minor and merely made an “honest mistake” about the child’s

age. The contention overlooks that the district court found the violation inexcusable. It

also ignores the district court’s concern that, because Ohlegren’s underlying conviction

involved minors and after the conviction he communicated with (and planned to meet) a

“young teen” through the internet, he should have been particularly vigilant when he

assessed the ages of those he contacted. Ohlegren suggests no reason why he should be

excused for this violation after failing to carefully verify the boy’s age before meeting

with him specifically to engage him in a sex act. The district court rejected the idea that

the encounter was an “honest mistake,” and it found that imposing a lesser penalty for

Ohlegren’s fourth probation violation would depreciate the violation’s seriousness. These

findings have ample support in the record.

       Affirmed.




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