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This opinion will be unpublished and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
A17-1091

State of Minnesota,
Respondent,

vs.

Nicole Marie Poillon,
Appellant.

Filed April 16, 2018
Affirmed
Bratvold, Judge

Winona County District Court
File Nos. 85-CR-11-1818,
85-CR-10-877, and
85-CR-10-876

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

Karin L. Sonneman, Winona County Attorney, Christina M. Davenport, Assistant County
Attorney, Winona, Minnesota (for respondent)

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

Considered and decided by Larkin, Presiding Judge; Bratvold, Judge; and Florey ,
Judge.

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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this probation-revocation appeal, appellant argues that the district court
erroneously revoked her probation for two reasons: (1) the alleged condition was never
imposed, and (2) if the condition was imposed, it was impermissibly vague. Because the
district court gave appellant adequate notice to stay away from a bar as a condition of her
release, and because the condition was sufficiently specific to include the entire bar
property, we affirm.
FACTS
On February 28, 2013, a jury found appellant Nicole Marie Poillon guilty of three
first-degree controlled- substance crimes arising from a series of cocaine sales that she
made in April 2010 to a confidential informant working with the Winona Police
Department. Before sentencing, Poillon moved for downward dispositional and durational
departures from the Minnesota Sentencing Guidelines. In April 2013, the district court
granted Poillon’s motion, sentenced her to three concurrent 132- month sentences, stayed
execution for 30 years, and imposed a $15,000 fine.1
As a condition of her stayed sentence, the district court imposed specific release
conditions, including that Poillon must remain law abiding; she must not use, possess, or
consume alcohol or controlled substances; she must not enter any bars or liquor stores; and

1 The state appealed Poillon’s sentence, arguing that the district court abused its discretion
by departing from the guidelines. State v. Poillon, No. A13-1242, 2014 WL 1408051, at
*1-2 (Minn. App. Apr. 14, 2014). We affirmed. Id. at *3.

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“under no circumstances [was Poillon] to find [her]self on the property of the Handy
Corner Bar.” In fact, the district court described the Handy Corner as a “snake pit.”
In March 2015, probation alleged that Poillon violated her release conditions by
using controlled substances and leaving the state without permission. In April 2015, the
state arrested and charged Poillon with several new felony offenses, including counterfeit
currency, possession of a firearm as an unauthorized person, and attempted forgery. In July
and October 2015, probation alleged that Poillon violated her release conditions by using
controlled substances.
In December 2015, Poillon reached a “global resolution” with the state to settle the
pending alleged probation violations and charges . Poillon admitted to violating probation
and entered an Alford plea on the April 2015 charges. In January 2016, at Poillon’s
sentencing hearing, the district court reinstated Poillon’s original terms of probation, for
example: remain law-abiding, no use or possession of controlled substances, and “stay out
of the Handy Corner.”
In March 2017, probation again alleged that Poillon had violated her release
conditions by failing to remain law-abiding, using controlled substances, associating with
a known drug user, and going to the Handy Corner Bar. Poillon entered a denial. The
district court held a three-day, contested revocation hearing, after which it determined that
Poillon had knowingly and without excuse violated her release conditions by using
methamphetamine and going to the Handy Corner Bar.
In April 2017, the district court held an additional hearing to determine the
appropriate disposition. Poillon argued that she should be reinstated to probation because

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she went to the apartment above the Handy Corner Bar to see her daughter. Although
Poillon had moved to Illinois, her daughter lived at a residential treatment facility in
Eau Claire, Wisconsin. Because h er daughter ’s treatment required home visits, Poillon
arranged to meet her daughter in the apartment above the Handy Corner Bar. Poillon stated
that she did not think the apartment was part of the Handy Corner Bar because the
apartment has a different postal address.
The district court did not find Poillon’s explanation persuasive. The district court
found that the “Handy Corner is the whole building. It’s not a separate apartment from the
bar. That is a house [that] was converted into a bar.” The district court questioned Poillon’s
credibility and doubted Poillon’s confusion, stating: “You were specifically told to stay
away from the Handy Corner. . . . [I]f you’re not simply lying to me, then it shows your
judgment has been significantly impaired by the use of controlled substances.” The district
court found that Poillon’s confinement was “ necessary to protect the public from further
criminal activity” and to provide effective treatment opportunities. The district court also
found that continuing probation would “unduly depreciate the seriousness of the violation.”
The court executed Poillon’s 132-month sentence. Poillon appeals.
D E C I S I O N
Poillon argues that the district court erred by revoking her probation based on a
condition that was never ordered, specifically that Poillon was required to “stay away ”
from the Handy Corner Bar. Alternatively, Poillon argues that this condition was
impermissibly vague if it was meant to include the apartment above the bar , so her

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probation cannot be revoked for violating it. The state argues that the probation condition
was “clear and unambiguous” and asks us to affirm the executed sentence.
The state has the burden of proving an alleged probation violation by clear and
convincing evidence. See Minn. R. Crim. P. 27.04, subd. 2(1)(c)b. When revoking
probation, the district court must: “1) designate the specific condition or conditions that
were violated; 2) find that the violation was intentional or inexcusable; and 3) find that
need for confinement outweighs the policies favoring probation.” State v. Austin, 295
N.W.2d 246, 2 50 (Minn. 1980). A 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.” Id. at 249-50.
A. The district court provided “fair warning” of the relevant release
condition.

The district court found that Poillon violated a specific condition of her probation
by failing “to avoid the Handy Corner.” Poillon argues that the district court never ordered
her to stay away from the apartment above the Handy Corner Bar, and therefore, erred by
revoking her probation.
To satisfy due process , a probationer must “be given fair warning of those acts
which may lead to a loss of liberty.” State v. Ornelas, 675 N.W.2d 74, 80 (Minn. 2004)
(quotation omitted). Before a district court may find a probation violation, the condition
alleged to have been violated must have been actually imposed by the court and the
probationer must have had adequate notice of this condition. Id. Therefore, a court must
“state precisely the terms of the sentence” including probation conditions. Minn. R. Crim.

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P. 27.03, subd. 4(A). “[I]f noncriminal conduct could result in revocation, the trial court
should advise the defendant so that the defendant can be reasonably able to tell what lawful
acts are prohibited.” Ornelas, 675 N.W.2d at 80 (quotation omitted).
Our review of the record reveals that the district court provided Poillon with notice
of the relevant release condition on several occasions. At the sentencing hearing, the district
court imposed specific conditions on Poillon’s probation, including that “under no
circumstances are you to find yourself on the property of the Handy Corner Bar.”
Moreover, the district court reminded Poillon of this condition at the January 2016
sentencing hearing, stating “stay out of the Handy Corner.”
Poillon also argues that there was no evidence presented that she entered the Handy
Corner Bar itself, and that the district court only found that she was in the apartment above
the bar. We are not persuaded for two reasons. First, Poillon’s daughter’s case worker
testified that Poillon had told her she was living above the Handy Corner Bar, and that the
only entrance to the apartment was through the bar. Thus, the record includes evidence
from which the district court could find that Poillon entered the bar and the apartment.
Second, the district court was not required to believe Poillon’s claim that she only entered
the apartment above the bar, or that the apartment and the bar were separate places. The
district court explicitly found that it did not believe Poillon’s claims. We defer to the district
court’s credibility determinations. See State v. Olson, 884 N.W.2d 906, 911 (Minn. App.
2016), review denied (Minn. Nov. 15, 2016).
We conclude that the district court provided adequate notice to Poillon that her
release was specifically conditioned, in part, on staying away from the Handy Corner

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property. Further, record evidence supported the district court’s determination that Poillon
knowingly and without excuse violated this condition.
B. The relevant release condition was not impermissibly vague.
Poillon argues that the condition was impermissibly vague because the district court
did not explicitly state that the apartment above the bar was part of the Handy Corner
property. The state argues that the condition was clear and unambiguous. To determine
whether a probation condition is vague, we consider whether “the probationer [ was]
reasonably able to tell what lawful acts were prohibited.” Austin, 295 N.W.2d at 251.
Poillon argues that “stay away from the Handy Corner” is not a valid condition
because it does not clearly designate the “range around the Handy Corner to avoid.” We
disagree. The term “stay away” provides a clear indication of what Poillon was prohibited
from doing. A condition that orders a probationer to stay away from a geographical location
and restricts the “places the probationer may frequent” is a common term of probation. See
State v. Friberg, 435 N.W.2d 509, 515-16 (Minn. 1989).2 A reasonable probationer would

2 Poillon cites an unpublished decision of this court to support her argument that a condition
containing the term “stay out of” is vague. First, unpublished opinions are not precedent.
See Minn. Stat. § 480A.08, subd. 3(b) (2016); State v. Ellis-Strong, 899 N.W.2d 531, 537
(Minn. App. 2017). Second, State v. Barberg is inapposite. In Barberg, this court examined
an order for protection stating, “[defendant] shall stay away from where [victim] resides.”
A04-2058, 2005 WL 3289285, *3 (Minn. App. Dec. 6, 2005). The defendant challenged
the order because he owned a 70-acre farm with several buildings and crop land, and the
victim rented a house on his farm. Id. at *1. We found that the order was vague or
ambiguous because defendant “was not really put on fair notice of what he could do and
could not do . . . . By not detailing how [defendant] was to avoid [victim], yet also
effectively manage his farm, [defendant] was left to guess at the restraining orders
prohibitions.” Id. at *3. That is not the case here. Poillon was not left to guess what the
condition prohibited. Also, unlike the defendant in Barberg who needed to tend to his farm,

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have understood that “stay away from the Handy Corner property” meant that Poillon was
prohibited from entering the property and not merely excluded from the bar.
Poillon also complains that when the district court imposed the probation condition
that she “stay away from those peo ple,” it failed to define “those people” and, therefore,
this condition was impossible for her to follow. The district court determined, however,
that the state did not prove that Poillon violated this probation condition by clear and
convincing evidence. Therefore, whether Poillon failed to stay away from “those people”
was not a factor in the district court’s decision to revoke probation.
We note that we may affirm the district court’s revocation of probation on any basis
that is clear from the record and on grounds other than those cited by the parties on appeal.
See Louis v. Louis, 636 N.W.2d 314, 316 (Minn. 2001). At the sentencing hearing, one of
the specific conditions that the district court applied to Poillon’s probation was that she
“must not use, possess, or consume alcohol or controlled substances.” After the contested
revocation hearing, the district court determined that the state had proven, by clear and
convincing evidence, that Poillon had violated her release conditions by using
methamphetamine. Poillon does not challenge this determination on appeal. Because the
district court could have revoked Poillon’s probation solely based on her use of
methamphetamine, we conclude that affirmance is also supported by this alternate ground.

Poillon did not need to visit her daughter in the apartment above the Handy Corner Bar .
She could have chosen a different location.

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For the reasons stated, we conclude that the district court did not abuse its discretion
by revoking Poillon’s probation and executing her prison sentence.
Affirmed.