                         This opinion will be unpublished and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
                                    A14-0360

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                 Anthony Otto Boyum,
                                      Appellant.

                                 Filed August 25, 2014
                                        Affirmed
                                     Stauber, Judge

                             Waseca County District Court
                                File No. 81CR12669

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

Paul Dressler, Waseca County Attorney, Rachel Cornelius, Assistant County Attorney,
Waseca, Minnesota (for respondent)

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

      Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and

Kirk, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

      Appellant challenges the district court’s findings that he violated the terms of his

probation. We affirm.
                                         FACTS

      Appellant Anthony Boyum was found guilty of controlled-substance crime in the

fifth-degree and sentenced to a stay of adjudication under Minn. Stat. § 152.18. A few

weeks later, appellant tested positive for methamphetamine, amphetamine, and

marijuana. Appellant waived his right to a contested violation hearing and admitted use.

But due to his positive job performance, his remorse, and his willingness to address his

chemical-dependency issues, appellant was reinstated on probation with the condition

that he complete a chemical-dependency evaluation and follow its recommendations.

      While attending outpatient chemical-dependency treatment, appellant tested

positive for alcohol use. A contested violation hearing was then held, at which

appellant’s probation agent, BethAnn Wolff, testified that appellant submitted a urine

analysis (UA) on August 27, 2013, and that the UA sample was sent to Redwood

Toxicology for testing. Wolff also testified that the results of appellant’s August 27 UA

sample were positive for alcohol. Wolff, however, admitted that she was not present to

witness the sample collection from appellant.

      Appellant denied consuming alcohol and testified that, when he went into the

secretary’s office to put his UA sample cup on the table, no staff member was present.

Although appellant admitted that his UA sample tested positive for alcohol, appellant

claimed: “I don’t know what happened. I know I was not drinking and the only

conclusion I can come to is there’s way too many opportunities for someone that were to

be using to switch the caps on [the UA samples].”




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       The district court found that the state “presented evidence that’s clear and

convincing that [appellant] used a mood altering chemical.” The court also specifically

found appellant’s testimony to be incredible, and thus, concluded that appellant violated

his probation. The district court then revoked appellant’s stay of adjudication, but

reinstated him on probation with a stay of imposition. This appeal followed.

                                     DECISION

       The district court has broad discretion when determining whether probation has

been violated and will not be reversed absent an abuse of discretion. State v. Ornelas,

675 N.W.2d 74, 79 (Minn. 2004). The district court’s findings of fact are accorded great

weight and will not be set aside unless clearly erroneous. See State v. Critt, 554 N.W.2d

93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). The state has the

burden of proving an alleged probation violation by clear and convincing evidence.

Onnelas, 675 N.W.2d at 79; Minn. R. Crim. P. 27.04, subd. 3. Clear and convincing

evidence is demonstrated when it is “highly probable” that the proffered facts are true.

Roby v. State, 808 N.W.2d 20, 26 (Minn. 2011) (quotation omitted).

       Appellant argues that the state failed to present clear and convincing evidence that

he violated his probation conditions because the state failed to present any evidence

regarding the taking of his UA sample or the chain of custody of the UA sample.

Appellant contends that this evidence was necessary in light of his testimony that he did

not consume alcohol, and the Department of Correction’s (DOC) policy pertaining to the

collection of UA samples which, according to appellant, was not followed. Thus,




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appellant argues that the district court’s “finding of violation was an abuse of the court’s

discretion and it must be reversed.”

       We disagree. The state presented evidence that one of the conditions of

appellant’s probation was that he abstain from alcohol. Appellant’s probation agent

testified that appellant submitted a UA sample on August 27, 2013, the sample was sent

to Redwood Toxicology for testing, and the results of appellant’s August 27 UA sample

were positive for alcohol. If believed, this evidence is sufficient to establish that

appellant violated the terms of his probation. Although appellant denied using alcohol

and claimed that no staff member was present when he turned in his UA sample, thereby

insinuating that someone may have tampered with his UA sample, the district court

specifically did “not find[] [appellant’s] testimony to be credible.” It is well settled that

the district court is in the best position to evaluate the credibility of witnesses, and we

defer to the district court’s determination of credibility. See State v. Al-Naseer, 788

N.W.2d 469, 473 (Minn. 2010). The district court’s credibility finding is further

supported by Wolff’s testimony that appellant “refused to take responsibility” for his

positive test, and that he “had a number of different” excuses for testing positive “that he

had seen on the internet, including using hand sanitizer in a room for more than two

hours or being subject to gasoline.” Accordingly, the district court did not abuse its

discretion by finding that appellant violated the terms of his probation.

       Affirmed.




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