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This opinion will be unpublished and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
A17-0770

State of Minnesota,
Respondent,

vs.

David Martin Arth,
Appellant.

Filed December 18, 2017
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-11-8857

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Larkin, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant David Arth challenges the revo cation of his probatio n, arguing that the
state failed to establish that (1) he violated a condition of probation, (2) any violations were

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intentional or inexcusable, or (3) the need for confinement outweighed the policies favoring
probation. We affirm.
FACTS
In 2015, Arth was found guilty of 14 counts of posse ssion of pornographic works
involving minors. The district court senten ced Arth on all 14 co unts. The sentences
included prison term s of varying lengths, but all also included five years’ conditional
release. The sentences were set to run conc urrently. The district court stayed all the
sentences and placed Arth on probation for five years.
The district court conditioned Arth’s pr obation on his comply ing with the “ten
standard conditions of probation,” which includ ed the obligations to “sign releases of
information as directed,” “cooperate and be truthful with [his Pr obation] Agent in all
matters,” and engage in “[a] ny [p]rograms per Probation Officer . . . including any sex
offender [programs].” At the time of sentencing, Arth was given a written list that included
these conditions, but the court did not explain th em on the record. The district court also
conditioned probation on Arth’s “r egister[ing] as a predatory offender for a minimum of
ten years [and] comply[ing] with all of the [predatory-offender] registration requirements.”
On August 11, 2016, Arth’s probation officer filed a proba tion-violation report
alleging that Arth had failed to “complete sex offender treatment as directed by Probation”
and to “cooperate and be truthful with Probation as directed by the Court.” At the violation
hearing, the district court struck all the alleged violations because Arth was confused about
the conditions of his probation and because the requirement that he cooperate with

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probation had never been explained “to him sp ecifically on the record.” The court then
clarified several of the conditions to Arth:
You are to do whatever probation tells you to do. If you don’t
like it or you disagree with it, if you don’t do it then it’s a
violation of probation. . . .

That includes that you have to be civil to them. It
includes that you cannot speak inappropriately to them. And
I understand that that can be subject to interpretation, but I will
tell you this: You should only sp eak to them in the way that
you would speak to the Court, a ll right? And if you were to
speak to the Court in swearing words, in threatening words, in
other words that could be mi sinterpreted, that would be
considered a violation of the cooperation condition. . . .

He’s ordered to sign any re leases of information that
probation wants him to sign or that the treatment facility wants
him to sign. . . .

I’m going to direct [probation officers] to make sure that
the forms are not blank forms, that any forms are . . . filled out
to a specific agency or to a specific organization and they will
have dates on them and they will have a place for Mr. Arth to
sign. He will sign those releas es of information whether he
agrees with them or not. And if he doesn’t sign them, that
would be a violation of his probation.

On November 14, 2016, Arth’s probation officer mailed him a predatory-offender-
registration change-of-information form becaus e Arth needed to update his address and
employment information. Th e form was filled out with Arth’s new address and
employment information, but contained empty fi elds for information that did not need to
be updated. It was also accompanied by a note from the probation officer asking him to
sign and return the form. On November 27, Ar th returned the form by mail, unsigned, to
the probation officer.

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Arth saw his probation officer on December 7 for a scheduled appointment at the
Stillwater courthouse. When Arth arrived, he initially approached the probation officer in
the unsecured area of the courthouse. The probation officer directed Arth to pass through
the public-entrance metal detectors and meet her in the secured corrections-office area.
Arth initially refused to obey these directi ons, instead following the probation officer
toward the employees-only door. Only after being told three times to use the public
entrance did Arth do so.
Once Arth was inside the s ecured area, the probation officer presented him with a
release form to allow her to verify his new residence at a social-services facility in St. Paul.
The form was specifically directed to the facility, contained an expiration date, and had a
handwritten note from the probation officer specifying that the release was for information
to “confirm residency and/or programming.” Despite several requests by the probation
officer, Arth refused to sign the release. The probation officer then informed Arth that, if
he did not sign the release, she would file a probation-violation report. At that point, Arth
stood up, grabbed the release, and walked out of the office.
The probation officer followed Arth to th e courthouse hallway and asked him to
return the release form. Arth ignored her and continued walking toward the exit, at which
point the probation officer waived a bailiff over to assist her. The bailiff stopped Arth, and
the probation officer told him that she would give him a copy of th e release form. Arth
returned the original form to the probation officer, who made a copy and gave it to Arth.
The probation officer then perm itted him to leave. As Arth left, he called his probation
officer a “b---h” and said probation staff was “all a bunch of f--king idiots.”

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On January 10, 2017, Arth’s probation officer filed a probation-violation report on
the grounds that Arth had failed to (1) “sign releases of information as ordered by the Court
and Probation,” (2) “cooperate with the Predatory Offender Registration Requirements as
ordered by the Court,” and (3) “cooperate with Probation in all aspects including being
truthful, speaking respectfully, being civil, i.e. no swearing or threatening language.” The
district court held a probation-violation hearing on February 17. The district court found
Arth in violation of probation. It terminated Arth’s probation and executed his sentences.
The district court acknowledged that, due to Arth’s custody credit, he would likely be
processed out to conditional release immediately.
Arth appeals.
D E C I S I O N
The district court has broa d discretion in determining whether there is sufficient
evidence to revoke probation. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). We
reverse a district court’s decision to revoke probation only for an abuse of discretion. Id.
When an offender violates a condition of probation, the district court may revoke
probation and execute the previously stayed sentence. Minn. Stat. § 609.14, subd. 3 (2016).
Before revoking probation an d executing the stayed sentence, the district court must:
“(1) designate the specific condition or conditi ons that were violated; (2) find that the
violation was intentional or inexcusable; and (3) find that need for confinement outweighs
the policies favoring probation.” Austin, 295 N.W.2d at 250. The state must prove a
probation violation by clear and convinci ng evidence. Minn. R. Crim. P. 27.04,
subds. 2(1)(c)(b), 3(1); State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). “The decision

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to revoke cannot be a reflexiv e reaction to an acc umulation of techni cal violations but
requires a showing that the offender’s behavior demonstrates that he or she cannot be
counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251 (quotations omitted).
Arth challenges the district court’s findings on all three Austin factors.
I. Arth violated one or more conditions of probation.
Arth argues that his conduct did not vi olate any probation conditions imposed by
the district court. He specifically asserts that swearing at his probation officer, refusing to
sign the social-services-facility release form, and refusing to sign the predatory-offender-
registration-update form are insufficient bases for a violation.
First, Arth challenges the fi nding that he violated the condition that he cooperate
with probation because, although he swore at probation personnel, “those words could be
deemed to be speech protected by the First Amendment.” This argument ignores the fact
that Arth did more than just swear. The dist rict court based its finding of a violation not
only on Arth’s language, but also on the fact that he “walked away from the probation
department[,] . . . terminat[ing] his interview with the probation department before it was
terminated by them.” Thus, we need not decide whether Arth’s speech was protected;
setting the speech aside, we conclude that suff icient evidence supports the district court’s
finding that Arth violated the condition of probation requiring him to cooperate with
probation.
Second, Arth acknowledges that he did not sign the release form when asked to do
so by his probation officer and did not sign th e registration-update form. He argues that
his probation conditions did not include a tim e frame for signing these forms. But the

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district court ordered Arth to sign releas e forms “as directed” and to comply with
predatory-offender-registration requirements. The probation officer directed Arth to sign
the release, and he refused. The probation officer provided Arth with a registration-update
form and asked him to sign it, and he sent it back unsigned. Sufficient evidence supports
the district court’s findings that he violated the conditions of prob ation requiring him to
sign releases and comply with registration requirements.
II. Arth’s probation violations were intentional and inexcusable.
Arth argues that the district court abused its discretion because his violations of the
release-form condition and the registration -requirements condition were not intentional
and inexcusable. Arth makes no argument that his violation of the cooperate-with-
probation condition was not intentional or inexcusable.
Arth argues that his failure to sign the release form was unintentional and excusable
because there was no deadline to sign the form. As discussed above, the condition required
Arth to sign release forms “as directed,” and he was directed to sign the form. Arth also
argues that he may have wanted to discuss this form with an attorney before signing it. But
Arth conflates the release form with the predatory-offender-registration update form, as his
justification for desiring attorney review is th at “failure to complete the form accurately
could lead to criminal prosecution.” Arth provides no argument as to why signing a release
would subject him to criminal liability. Sufficient evidence supports the district court’s
finding that violation of the release-form condition was intentional and inexcusable.
Arth also argues that his refusal to sign the predatory-offender-registration-update
form was unintentional and excu sable because “he may have wa nted to discuss . . . the

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predatory offender form with an attorney before signing an inaccurate predatory offender
registration form.” The facts are inconsistent with this explanation. The probation officer
mailed Arth the form on November 14, and, after holding on to it for 13 days, Arth mailed
it back to her, unsigned, on November 27, with no indication that he was seeking attorney
review. The district court did not abuse its discretion in rejecting Arth’s explanation and
finding that he intentionally and inexcusa bly failed to sign the predatory-offender-
registration update form.
III. The need for Arth’s confinement outweighs the policies favoring probation.
Arth argues that the district court abused its discretion in finding that the need for
confinement outweighs the policies favor ing probation because that finding was
“reflexive” and did not adequately “ensure that Arth received rehabilitation or correctional
supervision for the longest possible time.” In determin ing whether the need for
confinement outweighs the policies favoring probation, the district court must find that:
(i) Confinement is necessary to protect the public from
further criminal activity by the offender; or
(ii) The offender is in need of correctional treatment which
can most effectively be provided if he is confined; or
(iii) It would unduly deprecia te the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251.
Arth argues the district court’s decision was reflexive because the court sought to
“ma[k]e good on its promise to find him in viol ation if he refused to sign or placed
qualifications on releases.” However, the record indicates that the district court properly
considered the impact of allowing Arth to remain on probation. Discussing Arth’s refusal

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to cooperate with probation, the district court stated that “we are unable to protect the public
from [Arth’s] further criminal activity when he refuses to cooperate with probation,”
observing that Arth was “an untreated sex o ffender” who “has never cooperated with the
probation department in doing the therapy that was recommended.” The district court also
found that it would unduly depreciate the seriousness of “all of the violations in this matter”
if probation were not revoked. This was not a reflexive finding, nor was it an abuse of
discretion.
Arth argues, however, that, because he has custody credit in excess of the length of
his executed sentences, if the district court’s goal was to ensure that Arth completed sex-
offender treatment or other rehabilitative goals, the district court should have kept Arth on
probation, as that had the potential to maxi mize the length of time Arth would be under
supervision. Specifically, Arth argues (and th e state does not disagree) that the district
court could have extended his probation for an additional thr ee years, resulting in a total
supervision period of eight years, whereas probation revocation results in Arth immediately
being subject to conditional re lease, which will cease after five years, for a total of
approximately seven years’ supervision.
Arth provides no authority for the propos ition that a district court abuses its
discretion by revoking probation in these circumstances. Furthermore, conditional release
comes with the possibility of prison time if Arth fails to complete the necessary
rehabilitative process. See Minn. Stat. § 609.3455, subd. 8(a)-(c) (2016) (providing that an
offender may be sent to prison for failing to meet a condition of release, and listing
successful treatment as a possible condition). Terminating probation thus creates an

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incentive for Arth to su ccessfully complete his rehabilitativ e treatment, which serves the
interest of protecting the public from furthe r criminal activity. In addition, conditional
release counters the concern that contin ued probation would unduly depreciate the
seriousness of Arth’s violations. The dist rict court did not abuse its discretion in
determining that the third Austin factor was met even if probation revocation results in the
immediate start of Arth’s conditional release.
Affirmed.