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This opinion will be unpublished and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
A17-0952

State of Minnesota,
Respondent,

vs.

Kenneth Bernard Smith,
Appellant.

Filed February 20, 2018
Affirmed
Smith, Tracy M., Judge

Stearns County District Court
File No. 73-CR-16-1577

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

Janelle P. Kendall, Stearns County Attorney, Luke T. Godzala, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kenneth Smith challenges the re vocation of his probation, arguing that
(1) the state failed to prove by clear and convincing evidence that he violated a condition

2
of probation, (2) the district court did not make an adequate factual finding that the
violation, if it was proved, was intentional or inexcusable, and (3) the district court abused
its discretion in concluding that the need for confinement outweighed the policies favoring
probation. We affirm.
FACTS
This case arises from the discovery of pills concealed within Smith’s bedsheet while
Smith was jailed due to a probation violation.
On July 29, 2016, Sm ith was sentenced on one coun t of first-degree burglary and
one count of violating a domestic abuse no contact order. The district court sentenced him
to 57 months in prison, stayed that sentence, and placed Smith on probation for 10 years.
As a condition of his probation, Smith was required to follow all state and federal laws.
Five months later, on December 16, Smith violated another condition of probation
not at issue here. On December 29, he admitted to the violation. As a result, the district
court ordered Smith to serve 30 days in jail and continued him on probation.
From December 22 (while Smith was awaiti ng his probation-violation hearing) to
January 1, 2017 (the date of the violation at issue here), Smith was assigned a jail cell. At
the time Smith was first assigned the cell, an inmate worker, supervised by a correctional
officer, gave Smith clean sheets and blankets for his cell. Because inmates receive only

3
nonfitted sheets, most inmates tie knots in the corners of one of the sheets to secure it to
their mattress. However, the sheets are given to inmates without knots.1
On December 26, four days after Smith was assigned to his cell, correctional officers
conducted a routine search of Smith’s cell. No contraband was found. Four days later, on
December 30, Smith was given a furlough to obtain a voc ational-rehabilitation voucher
from a Veterans Affairs medical center and to register for classes at the technical college
where he was enrolled. When Smith returned to the jail th at same day, he was strip
searched; again, no contraband was found.
On January 1, 2017, Smith’s cell was again searched. When the correctional officer
performing the search unknotte d Smith’s sheet, she discovered a small piece of rubber
glove within one of the knots. Upon searching the piece of glove, the officer found several
pills. Another correctional offi cer compared the p ills to a drug database and determined
that the pills were oxycodone.
Based on this discovery, the state filed a probation-violation report alleging Smith
had failed to remain law abiding. A contes ted violation hearing was held, and the state
offered testimony from a deputy who had reviewed surveillance footage of the outside of
Smith’s cell from December 26 to January 1. The deputy testif ied that no one, including
Smith, brought bedding into or out of Smith’s cell during that time period. Further, during

1 Smith argues there is contradictory testimony regarding whether he was given knotted or
unknotted sheets and whether he received new bedding sometime after his first day in jail.
The district court, however, made a credibility determination and found that the sheets were
given to Smith unknotted. We defer to that determination. See State v. Vasko, 889 N.W.2d
551, 559 (Minn. 2017). Accord ingly, we assume that the sheets Smith initially received
were unknotted and that he never received new bedding.

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that interval, only Smith and correctional offi cers entered Smith’s ce ll. The state also
offered testimony that inmates can get contra band past the strip s earch if “they have
swallowed something or inserted something in their rectum.” Finally, the state offered
evidence that the piece of glov e found in Smith’s sheet did not match the type of gloves
used at the jail but was consistent with the gloves used at and “widely dispersed through
the VA complex.”
The district court found that Smith had failed to remain law abiding by committing
fifth-degree controlled-substance crime. Th e court further concluded that “obviously
possessing drugs is an intentional and/or in excusable act.” The district court then
considered whether continuing Smith on proba tion would diminish the seriousness of the
violation, reasoning that “bringing drugs into the jail is a very serious offense.” The court
revoked Smith’s probation and executed his prison sentence.
Smith appeals.
D E C I S I O N
When an offender violates a condition of probation, the district court may revoke
probation and execute th e previously stayed sentence. Minn. Stat. § 609.14, subds. 1, 3
(2016). Before revoking probation and executin g the stayed sentence, the district court
must “(1) designate the specific condition or conditions that were violated; (2) find that the
violation was intentional or inexcusable; a nd (3) find that the need for confinement
outweighs the policies favoring probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn.
1980). The state must prove a probation violation by clear and convincing evidence. Minn.

5
R. Crim. P. 27.04, subds. 2(1)(c)(b), 3(1); State v. Ornelas , 675 N.W.2d 74, 79 (Minn.
2004).
Smith challenges the district court’s findings on all three Austin factors.
I. Smith violated a co ndition of probation.
Smith challenges the district court’s fi nding that Smith violated a condition of
probation—the first Austin factor. We first address the standard of review. Smith argues
there was not clear and convincing evidence to prove he violated a condition of probation
because his probation violation was proved entirely with circumstantial evidence, and the
state’s evidence was consistent with a reasonable inference other than a violation. He thus
asks us to import the standard of review for reviewing the su fficiency of the evidence in
criminal convictions involving circumstan tial evidence into re views of probation
violations. See State v. Harris , 895 N.W.2d 592, 598 (Minn. 2017) (describing how, in
reviewing criminal convictions based on ci rcumstantial evidence, Minnesota appellate
courts first identify the circumstances proved, and then determine whether the reasonable
inferences from those circumstances are consis tent with guilt and inconsistent with any
rational hypothesis other than guilt).
We reject this request. Smith cites no caselaw supporting this position, and, to the
contrary, the Minnesota Supreme Court has made clear that the state’s burden of proof is
lower in the probation-violation context than in the criminal-conviction context. See State
v. Cottew , 746 N.W.2d 632, 636 (Minn. 2008) (“When a probationer challenges the
probation violation, the state must prove the violation by clear and convincing evidence.”);
see also Minn. R. Crim. P. 27.04, subds. 2(1)(c)(b ), 3(1) (requiring probation violation to

6
be proved by clear and convincing evidence). Requiring the state to eliminate any
reasonable inference other than a probation violation would effectively require the state to
prove probation violations beyond a reasonable doubt, which is not required by Minnesota
law.
Instead, the accepted standard of review is whether the district court abused its
discretion. See Austin, 295 N.W.2d at 249-50. “A district court abuses its discretion when
its decision is based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Guzman , 892 N.W.2d 801, 810 (Minn. 2 017). We now turn to that
question.
A condition of Smith’s probation was that Smith “[f]ollow all State and Federal
criminal laws.” The district court found that Smith violated this condition by committing
fifth-degree controlled-substance crime because he possessed the pills found in his sheet.
See Minn. Stat. § 152.025, subd. 2(1) (2014) (criminalizing possession of oxycodone). To
support this finding, the district court must have concluded that Sm ith constructively or
physically possessed the pills. See State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d
609, 610-11 (1975). Constructive possession can be proved by showing
(a) that the police found the substance in a place under
defendant’s exclusive control to which other people did not
normally have access, or (b) that , if police found it in a place
to which others had access, there is a stro ng probability
(inferable from other evidence) that defendant was at the time
consciously exercising dominion and control over it.

Id. at 105, 226 N.W.2d at 611.

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Smith argues he did not possess the pills because he did not physically possess them
nor did he know that they were in his shee t. Rather, according to Smith, someone else
placed the pills in his sheet. Smith testified that inma te workers do the laundry and hand
out sheets with little to no supervision by correctional officers. Smith further testified that,
when he received his sheets, th ey came with “knots so tight you couldn’t undo them.”
Smith argues that this testimony, combined with the fact that he was strip searched each
time he entered the jail, precludes a finding that it was “highly probable” that Smith placed,
or was otherwise aware of, the pills in his sheet.
We are unpersuaded. Although Smith testif ied that he received his sheets already
knotted, the district court explicitly rejected that testimony as not credible, and we defer to
that credibility determination. See Vasko, 889 N.W.2d at 559. Furthermore, the evidence,
when viewed in the light most favorable to the district cour t’s findings, establishes that
(1) when Smith’s cell was sear ched on December 26, no pills were found, (2) Smith did
not receive new bedding between December 26 and Januar y 1, nor did anyone other than
Smith or correctional officers enter his cell between those dates, and (3) pills were found
in Smith’s bedding on January 1. These facts create a high probability that Smith obtained
the pills after December 26 and knotted them in to his sheet, supporting the determination
that Smith was “consciously exercising dominion and control” over the pills. The district
court did not abuse its disc retion in concluding that Smith committed fifth-degree
controlled-substance crime, violating a term of his probation.

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II. Smith’s probation violation wa s intentional or inexcusable.
Smith argues that the district court did not make an adequate finding regarding the
second Austin factor—whether Smith’s probation violation was intentional or inexcusable.
Whether a district court has made adequate findings of fact under Austin is a question of
law, which we review de novo. See State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
The district court admittedly did not spend si gnificant time discussing this second
Austin factor, merely noting that “obviously posse ssing drugs is an intentional and/or
inexcusable act.” Smith argues that this one-sentence remark does not provide any support
for such a finding and instead shows that the district cour t did not fully consider any
arguments by Smith that his violation was not intentional and inexcusable.
We disagree. Finding that Smith committed fifth-degree controlled-substance crime
entails finding that Smith’s probation violatio n was intentional or inexcusable. To prove
possession, the state needed to establish that Smith “ consciously possessed, either
physically or constructively,” the pills. See State v. Arnold, 794 N.W.2d 397, 400 (Minn.
App. 2011) (emphasis added ). In concluding that Sm ith had committed fifth-degree
controlled-substance crime, the district cour t necessarily concluded that Smith (1) knew
the pills were a controlled substance and (2) with that knowledge, intended to exercise
dominion or control over the pills. See State v. Garcia-Gutierrez, 844 N.W.2d 519, 524-
25 (Minn. 2014) (noting that the court has read an “intent to possess an illegal drug” mens
rea requirement into controlled-substance laws). Thus, the district court’s conclusion on
the first Austin factor entailed the requisite intentionality to satisfy the second Austin factor.

9
The district court made an adequate finding of fact to support its conclusion that Smith’s
violation was intentional or inexcusable.
III. The need for Smith’s confinement outw eighs the policies favoring probation.
Smith argues the district court abused its discretion in finding that the need for
confinement outweighs the policies favorin g probation because “t he court provided no
analysis or explanation as to why public safety outweighed the policies favoring
probation.” This third Austin factor is met if a district court finds 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 depreci ate the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251. We evaluate the di strict court’s determination that the need
for confinement outweighs the policies favori ng probation for an abuse of discretion. Id.
at 249-50.
At the probation-revocation hearing, Smith argued that, rather than being committed
to the department of corrections, he should be released to the Veterans Affairs treatment
program because “many of his issues in the past were due to his mental health issues and
his new doctor from the VA finally had him on a medication combination that relieved
those issues.” Smith also expressed conc ern regarding what would happen to his
significant other, his child, his housing, and hi s pension if probation was revoked. Smith
argues the district court abused its discretion because, rather than balancing the arguments
Smith presented in favor of co ntinuing probation versus the need for confinement, “the

10
court gave [them] no credence.” According to Smith, this shows a lack of “the deliberate
consideration expected when [a] district court conducts an authentic balancing of reasons
favoring incarceration against the policies that would favor continuing . . . probation.”
We disagree. The district court explicitly stated that it had to consider whether
continuing probation wo uld depreciate the seriousness of the violation and went on to
explain that “bringing drugs into the jail is a very serious offense.” This discussion
indicates that the district court considered one of the three factors justifying a conclusion
that the need for confinemen t outweighs the policies favori ng probation and determined
that the factor was present here. The district court properly decided that bringing drugs
into jail is a serious offense and that its seriousness would be depreciated by not revoking
probation. To the extent Smith argues that the district court gave “no credence” to Smith’s
argument in favor of continuing probation, the record indicates the district court
appropriately weighed Smith’s arguments but concluded that confinement was required in
this case. The district court therefore did not abuse its discretion in determining that the
need for confinement outweighed the policies favoring probation.
Affirmed.