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This opinion will be unpublished and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
A17-1557

State of Minnesota,
Respondent,

vs.

Jessica Denise Talbot,
Appellant.

Filed June 18, 2018
Affirmed
Smith, Tracy M., Judge

Stearns County District Court
File No. 73-CR-12-8631

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Connolly, Pres iding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Jessica Talbot challenges the revocation of her probation, arguing that the
state failed to establish that (1) she violat ed a condition of probati on, (2) any violations

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were intentional or inexcusabl e, or (3) the need for conf inement outweighed the policies
favoring probation. We affirm.
FACTS
Following a traffic stop on Se ptember 16, 2012, Talbot was charged with felony
driving while intoxicated (DWI) and test re fusal, as well as a gross misdemeanor for
driving after cancellation of her li cense (inimical to public safety). In early 2014, Talbot
pleaded guilty to felony DWI, a nd in exchange her other char ges were dismissed. The
district court stayed Talbot’s 42-month sentence and placed her on seven years of
supervised probation with Stearns County Community Corrections.
Over the course of the next two years, Talbot violated th e conditions of her
probation four times by failing to abstain from using alcohol and mood-altering chemicals
and missing required drug tests.
After admitting to her fourth probation violation at a probation-violation hearing in
November 2016, probation recommended that Talbot attend Vinlan d National Center
(Vinland) for inpatient chemical-dependency- treatment programming. Talbot completed
this program and was discharged on February 27, 2017. Although Vinland recommended
and enrolled Talbot in its outpatient program, w ith a start date of March 20, 2017, Talbot
never attended. In addition, after her inpatient discharge, Talbot fe ll out of contact with
her probation agent and moved to Hennepi n County without upda ting Stearns County
probation. Stearns County probation filed a fifth probation-violation report, alleging that
Talbot failed to enter recommended outpatient programming at Vinland and had not been
in contact with probation since February.

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Talbot was picked up on a probation-viol ation warrant, and, in July 2017, a
contested revocation hearing was held. The state presented testimony from Talbot’s
probation agent that Talbot had not contacte d probation since February 2017. The agent
also testified that, three days earlier, he had directed Talbot to come to his office before the
hearing to provide a sample for urine analysis (UA) and documentation of the treatment
services she claimed to have been using sin ce leaving inpatient treatment. Talbot never
came in. At the hearing, Talbot confirmed that she had completed the inpatient treatment
at Vinland. Talbot also te stified that, upon finishing the inpatient program, she had been
involved in a number of outpatient meetings, including Re-Entry Project, “bible study slash
AA meeting,” and additional AA meetings thre e or four times a w eek in Minneapolis.
Talbot agreed that Vinland had recommende d its aftercare outpatient program following
her completion of inpatient treatment and said that she planned to attend this outpatient
treatment the week after the revocation hearing.
The district court found that Talbot violated the conditions of her probation by
failing to attend outpatient treatment and failing to stay in contact with probation, that these
violations were intentional and inexcusable, and that the need for confinement outweighed
the policies favoring probation. The court revoked probation and executed Talbot’s prison
sentence.
Talbot 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

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will reverse a district court’s decision to revoke probation only if the district court abused
its 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 and executing the stayed sentence , the district court must:
“1) designate the specific cond ition 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.” 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
to revoke cannot be a reflexiv e reaction to an accumulation of technical 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).
Talbot challenges the district court’s findings on all three Austin factors.
I. Talbot violated one or mo re conditions of probation.
Talbot argues that her conduct did not violate any probation conditions imposed by
the district court. During sentencing, Talbot’s probation was conditioned on, among other
things, following all recommendati ons of her treatment provider s and all instructions of
probation. After Talbot’s four th probation violation in the fall of 2016, the district court
also imposed the “additional requirement that [Talbot] follow all recommendations of the
Rule 25 [assessment] . . . including treatment and aftercare recommendations.” Based on
the testimony of Talbot’s probation agent and the violation report, the district court found

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that Talbot violated her pr obation “by not timely entering into the outpatient treatment
program” and “by failing to maintain contact with probation.”
Talbot concedes that she did not attend outpatient treatment at Vinland but argues
that “she had funding difficultie s that delayed her entry,” that she was told she needed to
update her rule 25 assessment, and that her Vinland case manager wa nted her to attend
outpatient treatment only after “her dental issues were resolved,” which had not yet
occurred at the time of the revocation hearing. Talbot also argues that, because she “still
had time left on probation and nothing in the re cord shows that Talbot was ever given a
deadline by which she had to complete [the aftercare recommendations], the district court
was premature when it found that Talbot had faile d to enter into . . . treatment in a timely
manner.”
The record contradicts Talbot’s assertions. The probation agent testified that, after
finishing inpatient treatment, Vinland enrolled Talbot in an outpatient program with a start
date of March 20, 2017 and secured her funding. The district court presumably found the
agent’s testimony credible, and we will not second-guess that determination on appeal. See
State v. Muhlenhardt , 403 N.W.2d 638, 639 (Minn. 19 87). The probation agent also
testified that Talbot had no t contacted her probation agent since February 2017, which
amounted to over three months of no communication with probation or drug testing. Talbot
does not dispute this lack of contact, but rath er offers explanations for why her absence
was excusable. Sufficient evid ence supports the district court’s findings that Talbot
violated the conditions of probation requir ing her to follow treat ment recommendations
and remain in contact with probation.

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II. Talbot’s probation violations were intentional and inexcusable.
Talbot argues that the district court abused its discretion because her violations were
not intentional and inexcusable. Talbot contends that failing to attend outpatient treatment
was not an intentional or inexcusable viol ation because (1) she “substantially complied
with the requirement and the recommendations of her Rule 25 a ssessment by completing
Vinland’s inpatient treatment program,” (2) “a t least some of the delay in entering the
outpatient appeared to be with the agreement of her treatment providers and at the direction
of Hennepin County, who told Talbot she would need to update her Rule 25 assessment,”
and (3) she was never given a deadline for comp leting outpatient treatment. As to failing
to stay in contact with probation, Talbot ar gues that she suffers from a traumatic brain
injury, believed her case manager at Vinland would update her probation agent with her
new contact information, and missed the July appointment with pr obation because her
mother was unable to drive her.
In finding Talbot’s violations intentional and inexcusable, the district court noted:
[B]y the testimony of [Talbot’s probation agent] as well as the
violation reports in this matt er it’s clear [the outpatient
treatment program was] set up fo r Ms. Talbot. I don’t think
there’s any indication anywhere that she contacted those
people or showed up . . . for those report dates and indicated
that she couldn’t follow through for whatever reason, there just
was no answer by her.

The district court went on to find:
Ms. Talbot has been on proba tion long enough to understand
your probation is not transferred until you receive notice that it
is, and having been on extensive supervision in Stearns County
it’s just not reasonable to assume that you don’t have to make

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probation meetings or test or do anything for the many months
that has transpired in Ms. Talbot’s case.

The record supports these findings. Talbot’s probation agent testified that Vinland
had secured funding and “everything was ready to go” for Talbot’s outpatient treatment.
At the revocation hearing, Talbot agreed th at she knew she would not have to pay for
outpatient treatment. Talbot has been on probation since 2014 and reasonably should have
known that it was her responsibility to stay in contact with probation. The district court
did not abuse its discretion in rejecting Ta lbot’s explanations and finding that she
intentionally and inexcusably violated two conditions of her probation.
III. The need for Talbot’s confinement ou tweighs the policies favoring probation.
Talbot 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” rather than suppor ted by a balancing of policies. The need for confinement
outweighs the policies favoring probation if:
(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 [s]he is confined; or
(iii) it would unduly depreciat e the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251 (quotation omitted).
Talbot argues the district court’s decision was reflexive because she “substantially
complied” with the terms of her probation by completing inpatient treatment and by
attending AA meetings and other community serv ices. Talbot further argues that, if the
district court wanted to ensure that Talbot completed chemical-dependency treatment or

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other rehabilitative goals, the court could ha ve best achieved those objectives by keeping
Talbot on probation. This follows, according to Talbot, because the court could have
extended her probation an additional three years, resulting in a total probationary period of
ten years, whereas by revoking probation, Tal bot will have only five years of conditional
release after she completes the remainder of her 42-month sentence.
A review of the record indicates that the district court’s decision to revoke probation
was not reflexive. The court specifically found that “it would unduly depreciate the
seriousness of the violations if probation we re not revoked at this time.” The court
explained:
I understand [the defense a ttorney] and Ms. Talbot are
indicating that Ms. Talbot is in a good place but, quite frankly,
the Court really doesn’t have the ability to assess that. I have
no way of knowing whether or not Ms. Talbot has in fact been
abstaining for the past several months because she’s not been
in contact with probation and she’s not been testing. You
cannot be on probation and simply have no contact with
probation for that number of months.

The district court’s conclusion that Talbot’s failures to demonstrate sobriety through testing
and to maintain contact with probation were se rious violations is especially reasonable in
light of Talbot’s prior history of DWI and domestic-assault conv ictions due to her
substance abuse. The district court did not abuse its discretion in determining that the third
Austin factor was met.
Affirmed.