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This opinion will be unpublished and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
A16-2025

State of Minnesota,
Respondent,

vs.

Cory L. Dieteman,
Appellant.

Filed July 17, 2017
Affirmed
Connolly, Judge

Wabasha County District Court
File No. 79-CR-10-874

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

James C. Nordstrom, Wabasha County Attorney, Karen Kelly, Assistant County Attorney,
Wabasha, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant argues that the (1) district court abused its discretion when it revoked his
probation because the evidence failed to show that the violation of the condition requiring
that he attend treatment, or any such violation, was intentional or inexcusab le or that the
need for confinement outweighed the polic ies favoring probation; (2) state cannot
condition a probationer’ s freedom on the requirement that he admit to committing past
offenses for which he could still be charg ed; and (3) district court erred when it revoked
appellant’s probation for a violation that is inextricably linked to his failure to pass a
polygraph examination. Because the district court did not abuse its discretion in revoking
appellant’s probation, we affirm.
FACTS
In 2011, appellant Cory L. Dieteman was convicted of fourth-degree criminal sexual
conduct after a jury trial. He was sentenced to 18 months in prison , which was stayed by
the district court , and appellant was placed on supervised proba tion for ten years. The
conditions of his probation included: (1) follow all instructions of probation; (2) attend a
sex-offender treatment program; (3) have no contact with any persons under the age of 18
unless approved by a therapist and probation agent; and (4) submit to polygra ph
examinations and other testing as recommended by the treatment therapist. At the
sentencing hearing, the district court ordered appellant to “enter into and successfully
complete a Minnesota Departm ent of Corrections approved sex offender treatment
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program.” The sentencing order states, “attend sex offender program.” The district court
never ordered the sex-offender treatment program to be completed by a specific date.
Appellant attended a sex-offender treatment program at Riverside Psychological
Services through October 27, 2014, when he had surgery, and was terminated from the
program in January 2015 when he did not return following the surgery. The discharge
report stated that appellant “seemed resistant to the concept of treatment and tended to
engage in an incredible amount of game playing or manipulation. While working on his
sexual timeline and offense story [he] would frequently change his story, challenge anyone
who would question his honesty and present in an argumentative manner.” The discharge
report also concluded that appellant had a tendency to deny or minimize the events of his
offense story and never completed the details of his story to a point where a polygraph
could be undertaken. He also reportedly “struggled with the concept of reporting triggers
and red flags; whic h is an important step in understanding one [’]s offense cycle and
reducing the potential to reoffend.” The discharge report states that appellant was
terminated from the program for failure to progress in the program and excessive absences.
Appellant enrolled in another sex-offender treatment program (CORE) on April 28,
2015, but was discharged in March 2016. The discharge letter from CORE states that
individuals in the program are expected to take their full -disclosure polygraph within six
months of entering treatment. Appellant failed to do so and did not complete his sexual-
history packet. Additionally, there were other concerns about appellant’s behavior,
including disruptiveness during group therapy, inappropria te comments, and text
messaging during sessions. CORE indicated that it would be willing to continue working
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with appellant, provided he (1) schedule an intake session; (2) complete a full disclosure
polygraph; and (3) not use his phone during sessions.
On March 21, 2016, appellant took a sexual-history polygraph examination. The
polygraph results indicated that appellant had been deceptive when responding “no” to the
questions: “Prior to your conviction, as an adult, did you have sexual contact with an y
minor child that you have not told me about?”; “Prior to your conviction, did you ever force
anyone to have sexual contact with you?” and “Prior to your conviction, did you have more
sexual contact with your victims than you have told me about?”
In May 2016, appellant’s probation officer discovered that (1) appellant had been
married for nearly a year and never disclosed that information to probation or the treatment
program; (2) there had been a minor child at appellant’s wedding, a violation of his
probation; and (3) appellant’s wife was pregnant with their first child and the child was due
in two to three months. Appellant was told that he would not be able to live with his wife
and child until he passed a full-disclosure polygraph, reenrolled in sex-offender treatment,
and made significant progress in that program. Appellant filed a motion in court to be
allowed contact with the child, which was ultimately denied.
Appellant’s child was born on June 27, 2016, and, despite his knowledge of the
probation requirement that he move out of the residence, appellant continued to live with
his wife and child. He attempted to satisfy the probation conditions by living in the
apartment above the garage on the property. After being informed that this arrangement
was not sufficient, he allegedly moved out for a time , but there were still reports that he
and his wife and child were living together. Appellant then told his probation officer that
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he wanted to move back to his house and indicated that his wife and child would be living
with family in another town. His probation officer required that his wife and son’s
belongings be removed from the house. Appellant agreed, but when the probation agents
visited appellant’s house, they discovered that appellant had just moved his wife ’s and
child’s possessions into the attic. Appellant later removed the items from the home and
was allowed to move in.
On September 7, 2016, appellant retook the polygraph examination. Appellant held
his breath for prolonged periods and was manipulating his respiration during the portion of
the exam when he was asked the questions for which the previous test had indicated deceit.
He was asked multiple times to stop the behavior but failed to do so. Therefore, the
examiners were not able to collect good quality responses to the relevant questions and
were forced to call the exam “inconclusive.” Appellant testified that he “didn’t know what
[he] was doing wrong” and that he would “take a deep breath, and then answer the question
. . . that’s what they say to do, and that’s what [he] was doing.”
On September 14, 2016, a probation-violation report was filed by the department of
corrections and the probation officer made the decision to take appellant into custody. The
report alleged a violation of probation because appellant failed to attend a sex -offender
program and noted appellant’s presence around a child at his wedding, the failure to report
his marriage, and that appellant had been living with his child without permission from the
courts. When appellant arrived for a scheduled appointment with the probation officer, the
officer called law enforcement. Appellant, while waiting, asked if he could use the public
restroom and was instructed to wait to talk to the probation officer. Appellant instead
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walked across the street to the nearest available restroom inside the courthouse. The deputy
arrived when appellant had crossed t he street and the deputy and the probation officer
observed him enter the courthouse. A short while later, he left the courthouse, crossed the
street and got into his vehicle and drove away. The deputy then initiated a traffic stop to
arrest appellant, who told the deputy he had diarrhea and was going to go home and call
the probation officer when he arrived.
After a hearing, the district court revoked appellant’s probation. The district court
explicitly denied relying on the polygraph tests because “p olygraph results are not
recognized as evidence in Minnesota Courts.” The district court found that appellant had
exhibited a “significant pattern of manipulative behavior” which the court concluded was
“designed to game the system.” As evidence for the pattern of manipulative behavior, the
district court cited that appellant (1) had been on probation for more than 76 months and
was “still spinning his wheels” in treatment and has to now start over at square one;
(2) claimed his wife was not living with h im, yet her things were found just hidden in the
attic for the probation officer’s visit; (3) sensed he was going to be arrested and tried to
evade arrest; (4) failed to tell his probation officer about his marriage and his wife’s
pregnancy, claiming that he did not understand he had to; and (5) took a photo with another
child at his wedding and claimed he did not know he was not supposed to be with that
child. The court specifically found that “[i]t doesn’t find that there is any credibility to the
defendant’s behavior, his comments, his testimony, [or] his actions while on probation.”
The district court concluded that the three Austin factors were met, the failure to “[get] out
of the blocks” in sex -offender treatment was inexcusable, and that the policy favoring
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probation has been overcome by the need for incarceration because probation was founded
on appellant receiving sex-offender treatment and appellant willfully “avoided and evaded
that obligation.” This appeal follows.
D E C I S I O N
“The [district] court has 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.” State v. Austin , 295 N.W.2d 246, 249 -50 (Minn. 1980). If the district court
finds that a probation violation occurred, the district court may continue probation, impose
intermediate sanctions, or revoke probation and execute a stayed sentence. Minn. Stat.
§ 609.14, subd. 3(2) (2016). The district court must apply the Austin factors before
revoking a defendant’s probation. State v. Cottew, 746 N.W.2d 632, 636-37 (Minn. 2008).
These factors require the district court to “(1) designate the specific condition or conditions
that were violated; (2) find that the violation was intentional or inexcusable; and (3) find
that the need for confinement outweighs the policies favoring probation.” Austin, 295
N.W.2d at 250. Failure to address all three Austin factors requires a reversal and remand,
even if the evidence was sufficient to support the revocation. State v. Modtland , 695
N.W.2d 602, 606 -08 (Minn. 2005). “[C]ourts must seek to convey their substantive
reasons for revocation and the evidence relied upon.” Id. at 608.
Appellant argues that the district court erred in revokin g appellant’s probation
because (1) there was insufficient evidence to prove that he violated the condition requiring
that he attend treatment, or that such a violation was intentional or inexcusable; (2) there
8
was insufficient evidence to prove that the n eed for confinement outweighed the policies
favoring probation; (3) it conditioned appellant’s freedom on the requirement that he take
a polygraph; and (4) it revoked appellant’s probation for a violation that is inextricably
linked to his failure to pass a polygraph.
“It is well established that the results of polygraph tests, as well as evidence that a
defendant took or refused to take such a test, are not admissible in Minnesota in either
criminal or civil trials.” State v. Nowacki , 880 N.W.2d 396, 399 (Minn. App. 2016)
(quotation omitted). One reason that polygraph tests are not admitted is because they do
not meet the Frye-Mack standards for reliability in order to be admissible as scientific
evidence. Id. However, Minn. Stat. § 609.3456 (2016) permits the district court to order
that a sexual offender submit to polygraph examinations as a condition of probation when
the offender has received a stay of execution of a sentence.
Citing similar decisions in other jurisdictions, we have concluded tha t “the
admission of polygraph test results as substantive evidence of a violation in probation -
revocation proceedings is improper.” Id. at 400. However, Nowacki explicitly stated that,
because [Minn. Stat. § 609.3456] allows the use of polygraph
testing as [a] condition of probation, evidence that an offender
refused to take a polygraph would be admissible to prove a
violation of such a condition of probation. This is distinct from
the results of a polygraph being admitted as substantive
evidence to prove that an offender violated other conditions of
probation.
Id. at 401. Here, as in Nowacki, the references to the polygraph examinations are not
admitted to show that appellant violated a condition of his probation that he submit to
polygraph testing. Rather, as in Nowacki, “ the references alluded to appellant’s failed
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polygraph tests, a factor that hindered appellant’s progress in treatment . In other words,
the admission of appellant’s failed polygraph tests was used as substantive evidence of
appellant’s failure to complete treatment.” Id. Because the use of the polygraph in
revoking appellant’s probation for failure to complete sex -offender treatment is similar to
the violation in Nowacki, allowing references to appellant’s failed polygraph tests t o form
the basis of his probation revocation would be in error.
However, Nowacki allows for probation revocation if the district court determines
that there was a basis for the probation revocation apart from the violation based on the
failure to complete a polygraph. Id. at 402. After specifically recognizing that a failure on
a polygraph test was not being considered, the district court discussed a variety of other
reasons appellant’s probation should be revoked, including: (1) appellant exhibited a
significant pattern of manipulative behavior; (2) despite sex-offender treatment being a key
to probation, appellant went 67 months without making progress and hopes to “maybe get
back into treatment and start over at square [one].” The district court revoked appellant’s
probation, not because he failed to take a polygraph test, but because he failed to get sex -
offender treatment after over five and a half years of probation. We agree.
Appellant argues that he has been attending sexual-offender treatment and, because
there was no date set for completing sex-offender treatment he has not violated the “attend
sex offender treatment” condition of probation. However, the absence of a probation term
that specifies a deadline for completing sex -offender treatment is not a bar to revoking
probation, particularly when the district court determines that the probationer has not made
any progress in sex-offender treatment. See State v. Rock, 380 N.W.2d 211, 212-13 (Minn.
10
App. 1986) (affirming a probation revocation when the evidence showed that a probationer
was “not interested in trying to change” and was unwilling to participate in sex -offender
treatment), review denied (Minn. Mar. 27, 1986); State v. Hemmings, 371 N.W.2d 44, 47
(Minn. App. 1985) (affirming a probatio n revocation when the evidence supported a
district court’s finding that a probationer was “unamenable to treatment”).
Appellant also argues that the district court gave no analysis indicating that the
violation was intentional and did not recite “specific reasons as to why the need for
confinement outweighed the policies favoring probation.” Failure to address all three
Austin factors requires a reversal and remand, even if the evidence was sufficient to support
the revocation. Modtland, 695 N.W.2d at 606-08.
The district court stated that the failure to even start sex -offender treatment after
five and a half years of probation is inexcusable and that “the public policy favoring
probation has been overcome . . . by the need for incarceration because this probation was
founded . . . [on] sex offender treatment, and [appellant] willfully . . . avoided and evaded
that obligation. He’s tried to manipulate the system in a way that gives the appearance that
he is cooperating [without] really cooperating.” We conclude that this is an explicit finding
that the violation was intentional and inexcusable because of the pattern of evasion
appellant exhibited. Additionally, the district court stated that the need for confinement is
strong when appellant failed to make any progress in sex -offender treatment, especially
where, as here, the district court explicitly states that sex -offender treatment is a key to
probation.
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We conclude that the district court’s explanation is sufficient to satisfy Modtland
because it shows that “confinement is necessary to protect the public from further criminal
activity by the offender” and that “[appellant] is in need of correctional treatment which
can most effectively be provided if he is confined.” Id. at 607. Because the pro bation
revocation was supported by the three Austin factors, and because the district court did not
improperly rely on appellant’s failure to complete his polygraph tests, we conclude that the
district court did not abuse its discretion.
Affirmed.