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This opinion will be unpublished and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
A17-0569

State of Minnesota,
Respondent,

vs.

Brian Kenneth Moore,
Appellant.

Filed November 27, 2017
Affirmed
Smith, Tracy M., Judge

Sherburne County District Court
File No. 71-CR-11-1862

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

Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Brian Moore challenges the distri ct court’s revocation of his probation
based on five probation violations. Moore argues that (1) the district court failed to make

2
two of the three required Austin findings, (2) four of the probation violations cannot sustain
revocation because they are ei ther unsupported by the record or because Moore lacked
required notice, and (3) his counsel was ineffective. We affirm.
FACTS
In 2013, Moore was found guilty of third-degree criminal sexual conduct. Moore’s
48-month sentence was stayed, and he was plac ed on probation for 15 years. Moore was
ordered to register as a predatory offender, successfully complete sex-offender treatment,
and follow the standard conditions of probation. In his third year of probation, Moore was
charged with misdemeanor driving while int oxicated and driving af ter revocation of his
license in Minnesota. Five months later, Moore was charged in Wisconsin with failure to
register as a sex offender, disorderly conduct, and two counts of misdemeanor battery.
Moore’s probation officer filed a probati on-violation report alleging Moore had
violated the conditions of his probation by (1) not obtaining permission from his agent
before leaving the state of Minnesota and (2) not reporting to, cooperating with, and being
truthful to his agent in all matters. At th e beginning of the revocation hearing, the state
asked to add two new violations: (3) usi ng or possessing alcoho l or any controlled
substance, and (4) accessing pornography. Moore’s counsel stated that he was prepared to
go forward with the hearing despite having received only oral notice of the two new
allegations only the day before.
During the two-day contested revocation hearing, the court heard testimony from
Sherburne County probation agent Brent Schmidt, Moore’s former girlfriend, and Moore’s
supervising probation agent Amy Furey. Much of the hearing focused on Moore’s internet

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activity and the sexual content he had accessed online. Moore’s ex-girlfriend testified that,
during their eight month relationship, she and Moore had viewed pornography together and
engaged in sexual activity with other people using a website called Couples Next Door. In
addition, she stated that Moore had posted “pornographic” pictures of himself on a website
called FetLife and participated in a “local swingers” Facebook group. According to Agent
Furey, Moore’s FetLife profile dated b ack “months and months” and showed him
“checking into going to fetish-style events and pictures” including “a rape fantasy” event.
Moore maintained that he was not a member of the Facebook group and did not have an
active account from which he could post pictures or comment on Couples Next Door. He
denied accessing “pornography” while on probation but admitted watching people engage
in sexual intercourse on the internet.
The court also heard testimony about Moore’s alcohol and drug use. Moore testified
that his probation agent had given him permis sion to drink alcohol as long as he was
“responsible.” Agent Furey said that Moore did not have permission to consume alcohol.
Finally, the state offered evid ence that Moore had been traveling out of the state
without appropriate permission. Moore’s ex-gir lfriend testified that he had traveled with
her to California and Wisconsin. Agent Furey denied that she gave Moore permission to
travel to California. Moore explained that he had permission to wo rk in Wisconsin but
agreed that he was not at work when he wa s arrested there for di sorderly conduct and
battery. Agent Furey clarified that Moore’s permission to be in Wisconsin would “just be
going to work and then coming back;” his wo rk permit did not include any “leisurely
activities” before or after work. Moore had an unregistered residential lease in Wisconsin

4
that was not approved by his supe rvising agent. Moore testifie d that he used this rented
home solely for temporary storage. Moore had also been operating a motorized boat that
he had failed to register, although he was required to do so as a predatory offender.
The district court found that Moore violat ed his probation by (1) leaving the state
without permission, (2) not being truthful with his agent in a number of matters, (3) using
alcohol, and (4) accessing pornography on the internet. In addition, the district court found
that Moore violated probation by (5) having sexual activity on the internet. After finding
the violations and hearing arguments from the prosecutor and defense counsel, the district
court commented:
If [Moore] had questions about what constituted appropriate
sexual activity, he should have ta lked to his probation officer
about that, but that would have required being truthful with her
and telling her what he was doing, and that’s what you haven’t
done, Mr. Moore. You have lie d to your probation officer
throughout. I’m seriously conc erned about whether you even
realize that you’re lying. You ’re pretty good at it. You were
pretty convincing [sic] the stuff that you told me on the stand
about your probation officer gi ving you all these permissions
that she didn’t give you, and so in order to protect the public I
have to commit you to the Commissioner of Corrections. I
can’t possibly conclude at this point that you’re amenable to
probation.

The district court revoked Moore’s probation and committed him to the Commissioner of
Corrections for 48 months.
Moore appeals.

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D E C I S I O N
I. The district court made the necessary Austin findings.

Moore argues that the district court failed to make all of the required Austin findings
before revoking his probation. The district court’s analysis of the Austin factors is reviewed
for an abuse of discretion. State v. Modtland , 695 N.W.2d 602, 605 (Minn. 2005).
However, whether the district court made each of the required findings presents a question
of law, which is reviewed de novo. Id.
When a probationer violates a condition of probation, the district court may continue
probation, revoke probation and impose the stayed sentence, or order intermediate
sanctions. Minn. Stat. § 609.14, subd. 3 (20 14). A district court may revoke probation
only if the court (1) designates the specific co ndition that was violated , (2) finds that the
violation was intentional or inexcusable, and (3) finds that the need for confinement
outweighs the policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn.
1980). Failure to address all three Austin factors requires reversal and remand, even where
the evidence was sufficient to support the revocation. Modtland, 695 N.W.2d at 606-08.
The state has the burden of proving by clear and convincing evidence that a probation
violation exists and that pr obation should be revoked. State v. Ornelas, 675 N.W.2d 74,
79 (Minn. 2004).
The parties agree that the court properl y made the first finding required by Austin,
that a specific condition of Moore’s probation was violated. Moore argues, however, that
the district court failed to make the second and third required Austin findings. He argues
that the district court merely found that it could not conclude that he was “amenable to

6
probation,” shifting the burden to Moore to prove his amenability, rather than specifically
addressing whether Moore’s pr obation violations were inte ntional or inexcusable and
whether the need for confinement outweighed the policies favoring probation.
The second Austin factor requires that the district court find that the violations were
“intentional or inexcusable.” Austin, 295 N.W.2d at 250. As part of the decision to revoke
Moore’s probation, the district court stated:
You have lied to your probation officer throughout. I’m
seriously concerned about whether you even realize that you’re
lying. You’re pretty good at it. You were pretty convincing
[sic] the stuff that you told me on the stand about your
probation officer giving you a ll these permissions that she
didn’t give you . . . .

We can infer from the district court’s statements addressing Moore’s dishonesty about his
conduct throughout the releva nt time period that it found Moore’s violations to be
intentional. Thus, the second Austin factor was implicitly addressed. The district court’s
statements regarding Moore’s ly ing are not the type of genera l, nonspecific, or reflexive
findings prohibited by Modtland. 695 N.W.2d at 608.
The third Austin factor requires the district court to find that the need for
confinement outweighs the po licies favoring probation. Austin, 295 N.W.2d at 250. A
district court may find this third factor sa tisfied where any one of the following three
subfactors is present: (1) confinement is n ecessary to protect the public from further
criminal activity by the offender; (2) the offender is in need of correctional treatment that
can be most effectively provided by confinem ent; or (3) it would u nduly depreciate the
seriousness of the violation if probation were not revoked. Id. at 251. Here, the district

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court explained its decision to revoke Moor e’s probation as follows: “[T]o protect the
public I have to commit you to the Commissioner of Corrections. I can’t possibly conclude
at this point that you’re amenable to probation.” Thus, the court specifically found that the
first subfactor (confinement is necessary to protect public safety) was present. The district
court therefore made the required finding on the third Austin factor.
Moore argues that the amenable-to-probati on language used by the district court
implies that the court was impr operly shifting the burden of proof to him to prove that
probation should continue. We disagree. From context, it is clear that the district court,
rather than improperly shiftin g the burden of proof as Moore suggests, was instead
weighing the policies favoring continued proba tion against the need for confinement, as
required by Austin.
In sum, the district court made adequate Austin findings.
II. The district court did not abuse its discretion in relying on all five violations.

Moore concedes that the court was correct in finding that he used alcohol in
violation of his probation. However, he challenges the c ourt’s findings of four other
violations for several reasons.
A. The record supports the findings that Moore exceeded the bounds of his
permission to travel outside of Minnesota and accessed pornography.

Moore argues that two violations were not supported by the re cord. The district
court’s factual findings are subject to a clearly erroneous standard of review. State v. Critt,
554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

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1. Traveling outside the state without permission
Moore first challenges the district court’ s finding that he left Minnesota without
permission. The district court found that Moore “violated the provision that required
permission before leaving the state because he significantly overstepped the bounds of the
permission that was given to him, which was to go there, to go to work, and to come back.”
Moore argues that this finding was inconsistent with the testimony given by Agent
Furey. When Agent Furey corroborated Moore’s testimony that she gave him permission
to travel to Wisconsin for work, she clarified that the extent of this permission was limited
to “going to work and then coming back.” Sh e specifically stated that her permission did
not include any “leisurely activities” before or after work. Moore agreed that he was not
at work when he was arrested in Wisconsin for disorderly conduct.
In addition, the district court heard ev idence that Moore was renting a house in
Wisconsin. Moore claimed he used the house only for storage. The district court, however,
did not believe Moore was renting the out-of- state home solely for storage and suspected
he was staying there overnight without the requisite permission from his probation officer.
We defer to the district court’s credibility determinations. See State v. Olson, 884 N.W.2d
906, 911 (Minn. App. 2016), review denied (Nov. 15, 2016). Agent Furey’s testimony and
the evidence regarding Moore’s home in Wisc onsin amply support th e district court’s
finding that Moore violated th e condition of probation that he not leave the state without
permission.
Finally, Agent Furey testified that she did not give Moore permission to travel to
California, yet Moore’s ex-girlfriend testified that she and Moore traveled there together

9
during their relationship. Moore did not contest this trip. Thus, this evidence also supports
the finding that Moore traveled outside of Minnesota without permission.
2. Accessing pornography

Moore argues that there is no evidence in the record to support the finding that he
used or accessed “pornography.” He bases this argument on the fact that the only statutory
definition of pornography in Minnesota relates to depictions of minors. See Minn. Stat.
§ 617.246 (2016) (defining “pornographic work” as involving sexual depiction of minors).
However, the Minnesota Rules of Criminal Procedure do not require a statutory
definition to be included in a condition of probation. Rather, when sentencing a defendant,
a court “[must] state precisely the terms of the sentence.” Minn. R. Crim. P. 27.03,
subd. 4(A). If imposing a probationary sentence in which “noncriminal conduct could
result in revocation, the trial court should advise the defendant so that the defendant can be
reasonably able to tell what la wful acts are prohibited.” State v. Ornelas, 675 N.W.2d at
80 (“When the acts prohibited by the probati on conditions are not cr iminal, due process
mandates that the petitioner cannot be subjected to a forfeiture of his liberty for those acts
unless he is given prior fair warning.”) (internal quotation omitted).
Here, the term “pornography” provided a reasonably clear description of what
Moore was prohibited from accessing as a term of his probation. Pornography is generally
understood to include “[p]ictures, writing, or other material that is sexually explicit.” The
American Heritage Dictionary of the English Language 1410 (3d ed. 1992). A reasonable
probationer would have understood that pornography included images beyond those
involving minors, based on a common understanding of the word.

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Moreover, Moore’s ex-girlfriend testified that Moore viewed “pornography” with
her twice and posted “pornographi c” pictures of himself on FetLife. 1 Agent Furey also
testified that Moore accessed “sexually explicit websites.” Moore himself admitted to
having an active FetLife profile and viewing other user profiles, as well as watching people
have sexual intercourse on the internet. Thus, evidence in the record supports the finding
that Moore accessed pornography under a common understanding of the word.
B. Moore had sufficient notice that a co ndition of his probation was being
honest with his probation officer and had sufficient notice of this
violation.

The district court found that Moore “was not truthful with his agent in a number of
matters—his internet activity, his alcohol use, what he was doing in Wisconsin.” Moore
argues that he was not informed that honesty with his agent was a condition of his probation
and did not receive written or oral notice of th is alleged violation prior to the revocation
hearing.
Moore did not preserve this issue for appellate review by making an objection in the
district court. Thus, we review for plain error. State v. Beaulieu, 859 N.W.2d 275, 281
(Minn. 2015); see also Minn. R. Crim. P. 31.02. Under the plain-error test, an appellant is
not entitled to appellate relief on an issue to which no objection was made unless (1) there
is an error, (2) the error is plain, and (3) the error affects the appellant’s substantial rights.
State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If the first three requirements of the
plain-error test are satisfied, we must cons ider the fourth requirement, whether the error

1 Agent Schmidt testified that FetLife is a website with se xual content, including images
and videos depicting sexual penetration.

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“seriously affects the fairness, integrity or public reputation of judicial proceedings.” State
v. Washington, 693 N.W.2d 195, 204 (M inn. 2005) (quotation om itted). If we conclude
that any requirement of the plain-error test is not satisfied, we need not consider the other
requirements. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
To satisfy the requirements for due pro cess, a probationer must “be given fair
warning of those acts which may lead to a loss of liberty.” Ornelas, 675 N.W.2d at 80
(internal citation omitted). Before a probation violation can occur, the condition alleged to
have been violated must have been a co ndition actually imposed by the court and the
probationer must have had notice of this condition. Id. Therefore, a court “[must] state
precisely the terms of the sentence” when sentencing a defendant. Minn. R. Crim. P. 27.03,
subd. 4(A). In addition, notice is also re quired prior to revoking probation. Probation
revocation proceedings “must be initiated by a summons or warrant based on a written
report” and include “a description of . . . the probationary terms allegedly violated.” Minn.
R. Crim. P. 27.04, subd. 1(1)(a), (2)(b).
With regard to honesty being a condition of Moore’s probation, we conclude there
was no error in the notice Moore received. Th e warrant of commitment stated that it was
a condition of Moore’s probation to “report to agent as directed and cooperate and be
truthful with agent in all matters.” Moreover, at sentencing, the court reminded Moore that
he was “required to follow all the general rules of probation,” which included honesty with
his agent. Moore was thus given notice of this condition of probation consistent with Minn.
R. Crim. P. 27.03, subd. 4(A), and due process requirements.

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With regard to notice of the alleged probation violation, we conclude there was also
no error. Failing to be honest with his ag ent was particularly noted on the written
probation-violation report. Violation number three on the report included “cooperate and
be truthful with agent in all matters.” Moore thus received notice of the violation consistent
with Minn. R. Crim. P. 27.04, subd. 1(2)(b).
C. Lack of notice of the sexual-act ivity-on-the-internet violation did not
constitute reversible plain error.

Moore argues that the district court commi tted reversible error by finding that he
violated the no-sexual-activity-on-the-intern et probation condition because he was not
given notice of this alleged violation.
As discussed above, notice of alleged violations is requir ed prior to the beginning
of a probation-revocation proceeding. Minn. R. Crim. P. 27.04, su bd. 1(2)(b). Because
Moore did not raise this issue below, we review the district court’s actions for plain error.
Beaulieu, 859 N.W.2d at 281. The violation re port did not include violation of the
condition that Moore not engage in sexual activity on the internet. Therefore, there was no
written notice of this violation. Additionally, when the stat e orally amended its alleged
violations at the beginning of the revocation hearing, it mentioned only “use of alcohol”
and “accessing pornography.” It did not request to add the violation of “having sexual
activity on the internet.” As Moore observes, the pornography allegation appears to have
“morphed to include the ‘sexual activity’ allegation as the hearing went on.” Because the
rule requires notice and the required notice a ppears wholly absent, there was error and it

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was plain. See State v. Wren , 738 N.W.2d 378, 393 (Minn. 2007) (quotation omitted)
(explaining that error is plain if it “contravenes case law, a rule, or a standard of conduct”).
We turn to the third prong of the plain- error test to consid er whether the error
affected Moore’s substantial rights. See Griller, 583 N.W.2d at 740. The notices Moore
did receive included identified violations of the no-access-to-pornography and
truthfulness-with-probation-officer conditions . The facts underlying both of those
violations largely overlapped with the facts underlying violation of the no-sexual-activity-
on-the-internet condition. The state’s witnesse s were the same for all of these violations
and were known to Moore—they were his probation officers and his former girlfriend. In
addition, Moore testified extensively abou t his activities on the in ternet. Although
violation of the no-sexual-activity-on-the-inte rnet condition was discussed in testimony
and in closing arguments, Moore never claime d surprise or asked for additional time to
prepare a defense, and on appeal he has not argued that he would have presented his defense
differently had he had more specific notice. Therefore, Moore has “failed to meet his heavy
burden of showing the error was prejudicial and affected the outcome of the proceedings”
and that it therefore affected his substantial rights. Beaulieu, 859 N.W.2d at 282. Moore
is thus not entitled to appellate relief for the failure to provide notice of the sexual-activity-
on-the-internet violation prior to the revocation hearing.2

2 Without citing to any caselaw, Moore assert s violation of his due process rights. A
violation of rule 27.04 may imp licate constitutional requirements. See Beaulieu , 859
N.W.2d at 280 (discussing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-
60 (1983), which holds that probationers are entitled to minimum requirements of
procedural due process). However, “[a]n assi gnment of error in a brief based on mere
assertion and not supported by argument or authority is waived unless prejudicial error is

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III. Moore was not prejudiced by his defens e counsel’s representation at the
revocation hearing.

Moore claims that he received ineffective assistance of counsel at his probation-
revocation hearing because his attorney failed to make an argument that the district court
should continue Moore on probation after the district court made its findings of violations.
Because ineffective-assistance-of-counsel claims involve mixed questions of law and fact,
they are reviewed de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing
Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)).
To prevail on a claim of ineffective assi stance of counsel, an appellant must
“demonstrate that (1) counsel’s performan ce fell below an objective standard of
reasonableness, and (2) a reasonable probab ility exists that, but for his counsel’s
unprofessional error, the outcome would have been different.” Leake v. State, 767 N.W.2d
5, 10 (Minn. 2009) (citing Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65). Both
prongs need not be analyzed if one is determinative. Id. Under the prejudice prong of the
Strickland test, a defendant must show by a pr eponderance of the evidence that his
counsel’s error, whether or not professionally unreasonable, so prejudiced the defendant at
trial that a different outcome would have resulted but for the error. Strickland, 466 U.S. at
687, 691, 104 S. Ct. at 2064, 2066.
Here, a lack of prejudice is determinative. The record establishes that Moore, a
convicted sex-offender, violated his probation numerous times: he consumed alcohol; he

obvious on mere inspection.” State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006)
(quotation omitted), aff’d, 728 N.W.2d 243 (Minn. Mar. 8, 2017). On these facts, we do
not discern an error based on mere inspection.

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left the state outside the bounds of his permission; he accesse d pornography; he was
repeatedly dishonest with his pr obation officer; and he used in ternet websites to discuss,
post, and observe sexually explicit content. Based on these facts, there is not a reasonable
probability that the district court would have been persuaded to continue Moore’s probation
regardless of any additional arguments his de fense counsel might have made. Because
Moore cannot show how the outcome of the hearing would have been different but for his
counsel’s performance in making closing comments to the district court, his claim fails.
Affirmed.