State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1292

State of Minnesota,
Respondent,

vs.

Yusuf Ahmed Osman,
Appellant.

Filed March 6, 2017
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CR-14-13748

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Stauber, Pres iding Judge; Rodenberg, Judge; and Smith,
John, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant appeals from the revocation of his probation, arguing that the district
court erred when it determined that the need for confinement outweighed the policy
considerations favoring probation. We affirm.
FACTS
In May 2014, appellant Yusuf Osman was charged with third-degree criminal sexual
conduct and two counts of domestic assault by st rangulation. In one incident, appellant
placed his hands around his girlfriend S.M.J.’s throat and caused her to black out. In
another, he grabbed S.M.J. by the throat, forced S.M.J. to engage in vaginal intercourse,
and digitally penetrated her anus.
In August 2014, appellant pl eaded guilty to third-degree criminal sexual conduct,
and by the terms of a plea agreement, the two counts of domestic assault were dismissed.
The district court stayed imposition and placed appellant on probation for three years, with
several conditions, including that appellant se rve 364 days in jail an d that he have no
contact with S.M.J. A Domestic Abuse No Contact Order (DANCO) was also issued,
requiring appellant to stay away from S.M.J. Appellant timely appealed his conviction on
the basis that he should have been allowed to dismiss his appointed counsel and withdraw
his plea at sentencing, and we affirmed his conviction. State v. Osman , No. A15-0030,
2015 WL 9437517 (Minn. App. Dec. 28, 2015), review denied (Minn. Mar. 15, 2016).
Appellant was released from jail in Marc h 2015. In June 2015, law enforcement
officers found S.M.J. and appellant together at a hotel. Discovering that there was an active

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DANCO concerning appellant and S.M.J., police arrested appellant. The next day, an order
for arrest and detention was issued based on the claim that appellant violated the conditions
of his probation. While in jail, appellant again violated his probation conditions by
contacting S.M.J. eight times by phone. Th e probation-violation report was amended to
reflect this additional contact, and an additional order for a rrest and detention was signed
on July 8, 2015.
A contested probation revocation hearing was held on April 18, 2016. The state
submitted as exhibits several audio files of the jail calls, as well as letters from appellant to
S.M.J.; the state called S.M.J. and appellant’s probation officer to testify. S.M.J. testified
that, following appellant’s release from jail, he contacted her “many times” by phone. She
also testified that appellant came to her home and grabbed her, telling her that he loved her
and that he would kill her and her children. S.M.J. testified that, between his release from
jail in March 2015 and his arrest in June 2015, he beat her up many times, and that one of
those beatings had induced a miscarriage. S.M.J. also testified about the jail calls following
appellant’s arrest, explaining th at “as soon as he was in ja il,” appellant called her on her
cell phone and also had other peop le call her. Appellant’s pr obation officer testified that
she believed appellant’s conduct was intentional and inexcusable due to the timing of the
contact. She recommended that a ppellant’s sentence be executed “because of the violent
nature of the offense and because of the continued contact with the victim.”
The district court made explicit written findings that appellant had violated his
probation conditions when he contacted S.M.J. “several times,” and that the violations were

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intentional and inexcusable. At sentencing, a ppellant requested that he be reinstated to
probation under a stay of execution of sentence. The district court stated:
I do believe that the public po licy favoring probation was not
present in this case to begin wi th because it is a presumptive
prison offense. However, [appellant] has clearly demonstrated
his nonamenability to probation by his continuing violation of
orders for protection and no co ntact orders and continuing
harassment of this victim despite those orders. So, since he
phoned her from the jail, it seems highly unlikely that he would
not continue to harass her.

The district court revoked the stay of impositi on and sentenced appellant to 48 months of
prison, executed, less credit for time served.
This appeal followed.
D E C I S I O N
Appellant argues that the district court abused its discretion when it revoked his
probation. We review a district court’s revoc ation of probation for abuse of discretion.
State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1 980). In deciding whether to revoke
probation, a district court must employ “cons cientious judgment, not arbitrary action.”
State v. Cottew, 746 N.W.2d 632, 638 (Minn. 2008).
The state must first establish a probation violation by clear and convincing evidence.
Minn. R. Crim. P. 27.04, subd. 2( 1)(c)(b). If the district court determines that a violation
has been established, it may revoke probation upon three findings, often called the Austin
factors: (1) the defendant violated a specific condition of probation; (2) the violation was
intentional or inexcusable; and (3) th e need for confinem ent outweighs policy
considerations favoring probation. Austin, 295 N.W.2d at 250. These findings must be

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made either in in writing or on the record. State v. Modtland, 695 N.W.2d 602, 608 (Minn.
2005).
Appellant argues that the facts do not support the district court’s finding that the
need for confinement outweighs the benefits of reinstating appellant to probation. In some
circumstances, “policy considerations may re quire that probation not be revoked even
though the facts may allow it.” Austin, 295 N.W.2d at 250. A district court must balance
“the probationer’s interest in freedom and the state’s interest in insuring his rehabilitation
and the public safety,” to make this finding. Id. This factor is satisfied if (1) “confinement
is necessary to protect the public from further criminal activity by the offender,” (2) “the
offender is in need of correctional treatment which can most effectively be provided if he
is confined,” or (3) “it would unduly depreciate the seriousness of the violation if probation
were not revoked.” Id. at 251.
The district court’s discussion of the ne ed for confinement and the benefits of
probation reflect its concern that appellant repeatedly harassed S.M.J. despite a DANCO
order and probation conditions prohibiting contact with S.M.J., and concern that appellant
would continue to harass S.M.J. if reinstated to probation. The district court’s statements
on the record amount to a finding that appellant ’s confinement is necessary to protect the
public from his criminal activity and that the seriousness of his violation would be unduly
depreciated if his probation were not revoked . Appellant argues that the district court
abused its discretion when it revoked probation rather th an sanctioning him at an
intermediate level, raising three distinct arguments.

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He first points out alternative options ava ilable to the district court, including
additional jail time and appropriate programming. Appellant does not cite to, and we are
not aware of, any legal authority for the notion that probatio n revocation is inappropriate
where a district court has any intermediate sanction available to it. We suppose that there
is always some programming short of imprisonm ent that is possible. The mere existence
of alternative sanctions does not mean that the district court abused its discretion by
revoking probation.
Second, appellant claims he demonstrated an ability to avoid further violations “by
having no contact with [S.M.J.] for over ten months prior to his probation being revoked.”
A period of good beha vior does not nullify appellant’s repe ated and serious violations of
probation, and the district court acted within its discretion by determining that
reinstatement to probation would jeopardize S.M.J.’s safety.
Finally, appellant argues that the severity of his violations was mitigated by his own
“confusion over what the conditio n entailed and the fact that the contact may have been
mutual.” The record does no t support appellant’s argument. The DANCO and the no-
contact condition of probation were explained to appellant at his sentencing, and appellant
actively engaged in a discussion about the geographic parameters of the provision. He then
told the court he understood the no-contact prov ision. Accordingly, we conclude that the
district court acted within its discretion in determining that appellant’s violation was
serious enough that the need for confin ement outweighed the policy considerations
favoring continued probation.

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The four issues raised in appellant’s pro se brief do not change our conclusion. First,
his arguments concerning his plea agreement were fully considered and resolved in
appellant’s direct appeal. Osman, 2015 WL 9437517 at *3. We will not revisit that
decision here. C.f. State v. Knaffla , 309 Minn. 246, 252, 243 N. W.2d 737, 741 (1976)
(barring appellants from raising issues in a postconviction petition that were already raised
on appeal). Second, appellant argues that S.M.J. wanted contact with him. But the victim’s
feelings about the contact are not pertinent to the district court’s determination that
appellant violated the no-contact provisions imposed by the court. Next, appellant argues
that the district court improperly sustaine d an objection during his attorney’s cross-
examination of a witness, th ereby preventing additional questioning concerning other
issues. In fact, the court did not sustain the objection in question.1 Finally, appellant argues
that he should have received a jury trial on the DANCO violation rather than a probation
revocation hearing. He was not charged with a separate DANCO violation, and the
probation-violation hearing concerned the violation of the no-contact condition of
appellant’s probation. As such, the district court properly resolved the probation-violation
issues without a jury.
Because the district court acted within its discretion in determining that the need for
confinement outweighs the policy considera tions favoring cont inued probation, and
because appellant’s pro se arguments are unavailing, we affirm.
Affirmed.

1 Appellant may have construed the district court as having sustained the objection, because
the questioning did not proceed as appellant had apparently hoped.