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This opinion will be unpublished and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
A17-1298

State of Minnesota,
Respondent,

vs.

Michael Christian Robert Foss,
Appellant.

Filed April 9, 2018
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Anoka County District Court
File No. 02-CR-12-1710

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Larkin, 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
LARKIN, Judge
Appellant challenges the district court’s order revoking his probation and executing
his sentence for two counts of possess ion of pornographic work s involving a minor .
Appellant argues that the district court erred by revoking his probation because community
programming was available to address appellant’s alcohol use. Appellant also argues that
the district court should not have imposed two sentences because his offenses occurred
during a single behavioral incident. We affirm in part, reverse in part, and remand.
FACTS
On March 6, 2012, respondent State of Minnesota charged appellant Michael
Christian Robert Foss with third-degree criminal sexual conduct, alleging that he engaged
in unwanted sexual pen etration with H.E.R., a 14-year-old minor. Foss was 19 years old
at the time of the alleged penetration. Later, the state amended the complaint to include
three counts of possession of pornographic works involving a minor, after three sexually
explicit images of H.E.R. were discovered on Foss’s cellphone.
On March 3, 2014, Foss pleaded guilty to two counts of possession of pornographic
works involving a minor. On September 11, the district court stayed adjudication of guilt,
ordered Foss to serve 60 days in a county jail, and placed him on supervised probation for
five years. The district court imposed the following conditions of probation: remain law
abiding and of good behavior; follow conditions of the probation agreement; meet with his
probation officer as directed; have no contact with H.E.R., her family, or minor females;
complete a psychological evaluation and polygraph examination, and follow all resulting
3
recommendations; submit to random chemical testing; do not use mood-altering substances
unless prescribed by a doctor; do not use alcohol; perform 100 hours of community work
service; pay restitution to the county’s sexual -assault fund; and submit to searches of his
phone, computer, or other devices with internet access.
On April 17, 2015, Foss’s probation agent filed a probation-violation report alleging
that Foss violated probation by using marijuana and alcohol. The probation -violation
report stated that Foss’s adjustment to probation had been “marginal” an d that Foss had
not entered sex-offender treatment or completed any of his community work service. The
report stated that Foss had cancelled his sex -offender treatment intake session due to
illness, but that when the agent visited Foss that same day, Foss did not appear to be ill.
Foss’s probation agent demanded a urine sample, which tested positive for marijuana and
alcohol. That was the second time Foss had tested positive for marijuana while on
probation.
On July 16, Foss admitted that he violated probation by using mood -altering
chemicals without a prescription. T he district court found that Foss’s violations were
intentional and inexcusable, revoked the stay of adjudication , stayed imposition of
sentence, and continued Foss on probation.
On July 7, 2016, Foss waived his right to a probation-revocation hearing and
admitted that he violated probation by having contact with female minors without approval.
The district court once again continued him on probation.
On January 31, 2017, Foss’s probation agent filed a violation report indicating that
Foss was terminated from sex-offender treatment on December 28, 2016, because he failed
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to attend treatment sessions, admitted viewing pornography, and admitted consuming
alcohol. On April 10, the agent updated the probation-violation report, alleging that since
the last violation report , Foss had refused to submit to five requests for chemical testing.
Additionally, Foss had failed to meet with his agent as directed and had been arrested for
driving while impaired. The agent recommended that Foss’s sentence be imposed and
stayed, and that he serve 180 days in custody.
Foss’s probation-violation hearing was scheduled for April 18, 2017. Foss failed to
appear at the hearing. Foss appeared for a hearing on May 24 and admitted that he violated
probation by failing to complete sex -offender treatment, by using alcohol, by not
submitting to random testing, and by failing to maintain contact with his probation officer.
The district court revoked Foss’s stay of imposition and sentenced him to serve 15 months
in prison on one of his offenses and 20 months in prison on the other offense, concurrently.
Foss appeals the revocation of his probation and his sentence.
D E C I S I O N
I.
Foss contends that the district court abused its discretion by revoking his probation.
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). The state must prove a probation
violation by clear and convincing 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 to revoke can not be a
reflexive reaction to an accumulation of technical violations but requires a showing that
5
the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial
activity.” Austin, 295 N.W.2d at 251 (quotation omitted).
Before a district court may revoke a defendant ’s probation, it “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.” Id. at 250. In assessing the third Austin factor, the district court should
consider whether “confinement is necessary to protect the public from further criminal
activity by the offender,” “the offender is in need of correctional treatment which can most
effectively be provided if he is confined,” or “it would unduly depreciate the seriousness
of the violation if probation were not revoked.” Id. at 251 (quotation omitted). Whether
the district court has made the required Austin findings is a question of law, which we
review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
The district court found that Foss had violated probation by failing to complete sex-
offender treatment, by using alcohol, by failing to submit to chemical testing, and by failing
to meet with his probation agent. The district court also found that the violations were
inexcusable. As to the third Austin factor, the district court explained:
The third factor is the determination whether the public
policy considerations which favor probation are outweighed by
the need for incarceration. This involves issue [s] of public
safety. It involves issues of consideration of the seriousness of
the crime involved.
If I were looking at some other type of case, the alcohol
use violations would probably suggest further chances of
treatment. But public safety here is not only the risk the
defendant may drink and drive, it’s also the risk that in an
inebriated condition, his judgment may also fail him, and he’ll
commit another sex offense. He is currently a non-treated sex
6
offender. He’s had an alcohol problem, which he has not been
able to control. And, based upon that, the Court is finding that
the third Austin factor has been satisfied.

Foss challenges the district court’s third Austin finding, arguing that “[t]he need for
confinement did not outweigh the policies favoring probation.” Foss asserts that the district
court “did not undertake a serious review of the third Austin factor.” Foss argues that
Modtland “direct[s] courts to consider whether it would unduly depreciate the seriousness
of the violation if probation were not revoked” and notes that “the district court did not
actually evaluate and weigh” whether “keeping Foss on probation would unduly depreciate
the seriousness of the violations.” (Emphasis omitted.)
Modtland does not mandate consideration of that criterion . Modtland says,
“[C]ourts must balance the probationer’s interest in freedom and the state’s interest in
[e]nsuring his reha bilitation and the public safety, and base their decisions on sound
judgment and not just their will.” Id. at 6 07 (quotation omitted). In balancing these
competing interests, Modtland instructs that
courts should refer to the following found in the American Bar
Association Standards for Criminal Justice regarding
probation:
Grounds for and alternatives to probation revocation.
(a) Violation of a condition is both a necessary and a
sufficient ground for the revocation of probation.
Revocation followed by imprisonment should not be the
disposition, however, unless the court finds on the basis
of the original offense and the intervening conduct of
the offender 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
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(iii) it would unduly depreciate the seriousness of the
violation if probation were not revoked.

Id. (emphasis added) (quoting Austin, 295 N.W.2d at 251).
Thus, Austin and Modtland encourage, but do not require, the district court to
consider the three criteria above, and there is no requirement that the district court consider
all three. Generally, unless there is some ambiguity surrounding the use of the word “or,”
appellate courts read it in the disjunctive. See, e.g., State v. Loge, 608 N.W.2d 152, 155
(Minn. 2000) (“[I]n the absence of some ambiguity surrounding the . . . use of th e word
‘or,’ [appellate courts] will read it in the disjunctive.”). Here, the district court considered
Foss’s repeated violations and determined that confinement is necessary to protect the
public from further criminal activity. It was not necessary for the district court to also
consider whether it would unduly depreciate the seriousness of the violation if probation
were not revoked.
We note that the district court did not revoke Foss’s probation until he failed to
follow probationary conditions for the third time. Foss’s arrest for driving while impaired,
his refusal to meet with his agent and submit to chemical testing, his use of alcohol, and
his termination from sex -offender treatment all support the district court’s determination
that confinement is necessary to protect the public from further criminal activity.
Foss also argues that the district court erred in revoking his probation because Austin
states that “revocation should be used only as a last resort when treatment has failed,” and
“[t]he court did not find, nor could it find, that chemical dependency programming was
unavailable to Foss in the community.” However, district courts are not prohibited from
8
revoking probation if alternative treatment options exist, and the district court has “broad
discretion in determining if there is sufficient evidence to revoke probation.” Austin, 295
N.W.2d at 249. Here, the district court considered “further chances of treatment” based on
Foss’s alcohol use, but it determined that the risks to public safety were too great given the
underlying offense. In doing so, the district court complied with the instructions set forth
in Austin. The district court did not abuse its discretion in revoking Foss’s probation.
II.
Foss contends that we must vacate his 20-month sentence under Minn. Stat.
§ 609.035 (2010), which provides that, subject to various exceptions, “if a person’s conduct
constitutes more than one offense under the laws of this state, the person may be punished
for only one of the offenses.” Minn. Stat. § 609.035, subd. 1. Thus, the law generally
“prohibits multiple sentences, even concurrent sentences, for two or more offenses that
were committed as part of a single behavioral incident.” State v. Ferguson, 808 N.W.2d
586, 589 (Minn. 2012) (quotation omitted).
The state bears the burden of proving, by a preponderance of the evidence, that a
defendant’s offenses were not part of a single behavioral incident. State v. Williams, 608
N.W.2d 837, 841-42 (Minn. 2000). Whether the offenses were part of a single behavioral
incident is a mixed question of law and fact; we review the district court’s findings of fact
for clear error and its application of the law to those facts de novo. State v. Jones , 848
N.W.2d 528, 533 (Minn. 2014). Determining whether multiple offenses are part of a single
behavioral incident is not a “mechanical” exercise, but rather requires an examination of
all the facts and circumstances. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997).
9
Foss did not raise appl ication of Minn. Stat. § 609.035 in district court. However,
“the prohibition against double punishment in section 609.035 cannot be waived.” Ture v.
State, 353 N.W .2d 518, 523 (Minn. 1984). “[A]n appellant does not waive claims of
multiple convictions or sentences by failing to raise the issue at the time of sentencing.”
Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007). Furthermore, courts are empowered
“at any time” to correct sentences not authorized by law. Mi nn. R. Crim. P. 27.03, subd.
9.
Neither party suggests that we should remand to the district court for a single-
behavioral-incident determination . Instead, the parties argue that the current record
supports their respective positions regarding that determination. When the material facts
are not in dispute, we review de novo the district court’s application of section 609.035.
State v. Reimer , 625 N.W.2d 175, 176 (Minn. App. 2001). We therefore consider
application of section 609.035 for the first time on appeal, based on the existing record.
Because this case involves application of section 609.035 to convictions of
possession of pornographic works involving minors, State v. Bakken is instructive. 883
N.W.2d 264 (Minn. 2016). In Bakken, the supreme court determined that the defendant ’s
conduct in possessing seven pornographic works was not part of a single behavioral
incident and that defendant could therefore be sentenced on each possession conviction.
Id. at 266, 272. The court stated,
When, as here, all of the crimes at issue co ntain an intent
element, we determine whether the crimes were part of a single
behavioral incident by considering (1) whether the offenses
occurred at substa ntially the same time and place and
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(2) whether the conduct was motivated by an effort to obtain a
single criminal objective.

Id. at 270 (quotations omitted). As to the time of possession, the supreme court explained,
“Although a crime of possession is a continuing offense, it is complete when the offender
takes possession of the prohibited item.” Id. (citation omitted).
In Bakken, the defendant’s offenses were committed in the same place. Id.
However, he did not commit each of the possession crimes at substantially the same time:
two of the offenses were completed five days apart and other offense s were separated by
over a month. Id. As to single criminal objective, the supreme court stated, “the mere fact
that he committed multiple crimes over time for the same criminal objective does not mean
he committed those crimes to attain a single criminal objective.” Id. at 271. The supreme
court noted that “because Bakken’s offenses were completed at substantially different
times, other cases in which [it had] concluded that an offender had a single criminal goal
in committing multiple offenses over a shorter, discrete time period are inapposite.” Id.
(citing Langdon v. State, 375 N.W.2d 474, 476 (Minn. 1985) (reasoning that a defendant’s
“overall criminal objective” was “to steal as much money as he could that afternoon” by
burglarizing several laundry rooms in the same apartment complex); State v. Herberg, 324
N.W.2d 346, 347, 349 (Minn. 1982) (reasoning that a defendant’s “underlying motivation
remained the same” in committing multiple violent offenses against the same victim over
the course of an afternoon).
The supreme court explained that “[i] n cases in which an offender repea tedly
commits the same offense . . . the timing of those offenses is relevant to determining
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whether the offender had a single criminal objective, or merely the same criminal
objective.” Bakken, 883 N.W.2d at 271 n.5. Compare Langdon , 375 N.W.2d at 476
(concluding that four burglaries of an apartment complex on the same afternoon were
committed with a single “overall criminal objective”), with State v. Eaton , 292 N. W.2d
260, 266 -67 (Minn. 1980) ( concluding that two thefts, committed three days apart by
swindling the same victims, were not committed with a single criminal objective).
The supreme court rejected Bakken’s reliance on State v. Carlson, 291 Minn. 368,
369-70, 381, 192 N.W.2d 421, 423, 429 (1971), which held that possession of 29 obscene
films, all discovered by police at the same time, could support only one sentence for
possession of obscene material with intent to sell. Bakken, 883 N.W.2d at 272. The
supreme court explained that Carlson was easily distinguishable because there was no
indication that the defendants in Carlson possessed the films or offered them for sale at
any time or place other than when and where they were discovered by police. Id. “[B]y
contrast, Bakken began his possession of the pornog raphic works at different times.” Id.
The supreme court concluded that “b ecause Bakken’s offenses were completed at
substantially different times, and because his conduct was not motivated by an e ffort to
obtain a single criminal objective, the district court did not err in sentencing Bakken on
each of the separate possession convictions.” Id.
Foss argues that he should not have received multiple sentences because the facts
of his case are analogous to those in Carlson. Foss argues:
[He] admitted to possessing two images of H.E.R. on March 2,
2012. He admitted to possessing these two images on a single
device, a cellular telephone. He admitted that H.E.R. had sent
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these images to him via text m essage sometime “around”
February of 2012, and that he was in “ongoing
communication” with H.E.R. . . . This was not a case where a
defendant downloaded various images of child pornography at
various times, and then admitted to those specific discrete
dates, separated by a time period of weeks or months. See, e.g.,
State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). Foss did
not admit to any separation in time between the text messages
that H.E.R. sent to him.

Foss further argues:
Notably, the state did not allege that these were separate
behavioral incidents. The complaint did not allege that there
was any separation in time between Foss’s receipt of the two
images, nor did the state seek such an adm ission during the
plea colloquy. . . . The complaint specifically charged him with
possessing these images on or around March 2, 2012, and he
specifically pled guilty to possessing them on or around
March 2, 2012. This was a single behavioral incident, and so
[he] should only have received a single sentence of 15 months.
The 20-month sentence must be vacated.

The state counters, “The amended complaint filed by the state on January 17, 2013,
however, specifically alleged that Foss received photos from H.E.R. on three separate
dates: February 3, 2012, February 5, 2012, and February 7, 2012.” The state argues that
because the district court accepted Foss’s guilty pleas, he “in effect judicially admitted the
allegations contained in the complaint,” q uoting State v. Trott , 338 N.W.2d 248 , 252
(Minn. 1983). The state notes that Foss’s factual bases for his guilty pleas confirmed that
he possessed the images in February 2012. The state concludes, “The factual basis and
criminal complaint show that Foss possessed pornographic works involvi ng a minor on
multiple dates, and his sentence must be affirmed.”
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The record does not support the state’s argument. The relevant portion of the
probable cause statement is as follows:
One photograph dated February 3, 2012 depicted [H.E.R.]
engaged in sexual conduct. . . . Another photograph identified
in the forensic report . . . dated February 5, 2012 depicted
[H.E.R.] engaged in sexual conduct. Another photograph
dated February 7, 2012 . . . depicted [H.E.R.] engaged in sexual
conduct. [H.E.R.] confirmed that she took the photographs and
sent them to [Foss] via text message.

The complaint charged three counts of possession of pornographic works and
alleged that they occurred on the same date, March 2, 2012. The February dates on which
the state reli es are the dates of the three photographs underlying the possession charges.
The probable cause statement does not allege that Foss received one photograph on each
of those three dates. In fact, the complaint is silent regarding when th e images were sent
and received. The state did not further amend the complaint or offer any evidence to
establish when Foss received the images.
Moreover, the factual bases for Foss’s guilty pleas do not establish that he received
the images on different dates. T he state did not ask Foss to clarify that he received the
images on different dates or that there was a significant period of time between his receipt
of the three images. Instead, the state asked, “[T]he time frame [when] you received these
images, it was sometime before March 2nd, correct?” Foss admitted that he received the
images “[s]ometime [in] February, 2012” but he did not indicate that he received the
images on any specific date or on two or more dates. As to the date of possession, Foss
specifically admitted that he possessed both images on March 2, 2012.
THE COURT: Mr. Foss, there was more than one image?
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FOSS: Yes.
THE COURT: You’ve been charged with possession of a
pornographic work involv ing minors . . . . To count two,
possession of pornographic work involving minors, occurring
on or about March 2, 2012, in Anoka County, how do you
plead; guilty or not guilty?
FOSS: Guilty.
THE COURT: And to count three, possession of pornographic
work involving minors occurring at the same time and the
same place, how do you plead; guilty or not guilty?
FOSS: Guilty.

(Emphasis added.)

In sum, the complaint alleged that Foss possessed the images that underlie his two
possession convictions on March 2, 2012. Although the complaint a lso alleged that the
images were dated February 3, February 5, and February 7, 2012, it did not allege that Foss
received the images on those dates. And although Foss admitted receiving the images in
February, he did not admit that he received them on different days. There is no claim that
Foss possessed the images at different locations.
In deciding this issue, we rely on Bakken, which heavily focused on the timing of
the possession offenses. See Bakken, 883 N.W.2d at 272. Here, the state has not
established any lapse of time between the two admitted possession offenses or that Foss
had more than one criminal objective when he committed the two acts of possession. “Until
the state provides evidence that [a defendant’ s] acts were separate and distinct criminal
offenses, it should be assumed that they were part of a single behavioral act.” State v.
Johnson, 653 N.W.2 d 646, 652 (Minn. App. 2002). Because there is no admission or
evidence indicating that Foss committed the two possession offenses at different times, the
15
state has not met its burden of demonstrating that they were distinct criminal offenses. We
therefore conclude that the two images were possessed during a single behavioral incident.
This conclusion does not end our analysis. The state contends that sentencing on
both offenses was proper despite section 609.035 , because “the plea agreement implicitly
called for both sentences to be executed if Foss failed on probation.” The state notes that
it agreed not to pursue the remaining charges of third -degree criminal sexual conduct and
a third count of possession of a pornographic work involving a minor in exchange for
Foss’s guilty plea s to the two possession charges. The state argues, “If Foss does not
receive concurrent sentencing on both counts of possession of pornographic work [s]
involving a minor, the state will not receive the benefit of its bargain in its plea agreement
with Foss.” Foss disputes that the plea agreement called for two sentences.
We need not resolve the parties’ dispute, because the state has not provided, a nd
research has not uncovered, authority establishing that the prohibition of multiple
punishments under section 609.035 can be waived by a defendant or that a court can ignore
the prohibition based on a plea agreement. The state cites caselaw regarding enforcement
of plea agreements, but it is not on point. See State v. Wukawitz , 662 N.W.2d 517 , 519
(Minn. 2003) (holding that imposition of a conditional-release period that does not strictly
comply with statute is allowed when withdrawal of a plea would unduly prejudice the state,
and expressly limiting the holding to situations where impo sition of a conditional-release
period would violate the plea agreement); State v. Brown, 606 N.W.2d 670, 674-75 (Minn.
2000) (stating that a p lea agreement was not violated when unaccounted-for conditional-
release term exceeded the plea agreement’s maximum term , because the opportunity for
16
probation, not the duration of the sentence, induced the plea); State v. Meredyk , 754
N.W.2d 596, 605 (Minn. App. 2008) (holding that the district court erred by modifying a
discretionary restitution order because the defendant agreed to a specific amount of
restitution under the plea agreement).
Our research suggests that it may be improper to rely on a plea agreement as a basis
to refuse to correct a sentence that violates section 609.035. For example, in State v. White,
the supreme court unequivocally stated that “the prohibition against double punishment
cannot be waived.” 300 Minn. 99, 106, 219 N.W.2d 89, 93 (1974). In Johnson, we stated,
“because White unequivocally declared the prohibition against double punishment cannot
be waived, we hold that [a defendant] cannot waive the prohibition against double
punishment found in Minn. Stat. § 609.035 by failing to assert such a claim in his direct
appeal.” 653 N.W.2d at 651. But we qualified that holding, stating, “We do not purport
to decide whether the prohibition on double punishment may ever be waived, only that the
Knaffla rule does not bar a subsequent attack on multiple sentencing.” Id. at 651 n.2. Our
research does not indicate that this court, or the supreme court, has ever revisited the issue.
Thus, the state’s contention that a defendant can waive the sentencing protection of
section 609.035, and thereby relieve the state of its burden to prove that multiple offenses
were not committed during a single behavioral incident, raises an issue of first impression.
Caselaw holding that a plea agreement, standing alone, cannot be the basis for a sentencing
departure may have some relevance. See, e.g., State v. Misquadace , 644 N.W.2d 65, 66
(Minn. 200 2) (holding that a district court errs “by basing its departures from the
presumptive sentences under the Minnesota Sentencing Guidelines solely on a plea
17
agreement without additional substantial and compelling justification for departure”). If
such a wai ver were allowed, caselaw suggests that it should “conform to the usual
limitations accompanying the waiver of constitutional or statutory rights, that is, it must be
knowing, intelligent, and voluntary.” See State v. Givens, 544 N.W.2d 774, 777 (Minn.
1996) (describing requirements for waiver of right to be sentenced under sentencing
guidelines), superseded by statute, 1997 Minn. Laws ch. 96, § 1, at 694-95, as recognized
in Misquadace, 644 N.W.2d at 65. Unfortunately, neither party provides adequate briefing
on these issues.1
Given the limited legal analysis presented by the parties , we do not attempt to
determine, for all purposes, whether a sent ence that violates the multiple -punishment
prohibition of section 609.035 may be based solely on a plea agreement. For the purpose
of this case, we conclude that, i f the state wanted to maintain the benefit of its purported
bargain with Foss , it should have met its burden to establish that the two admitted
possession offenses were not committed during a single b ehavioral incident such that
sentencing on both offenses would not violate section 609.035. Because the state failed to
do so, Foss’s second sentence for 20 months violates Minn. Stat. § 609.035.
Conclusion
Because the district court did not clearly abuse its discretion by revoking Foss’s
probation, we affirm in part. However, because the state did not establish that the two

1 Because oral argument was not requested, the legal arguments are limited to the briefs.
18
sentenced offenses were committed during separate behavioral incidents, we reverse in part
and remand for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded.