State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0996

State of Minnesota,
Respondent,

vs.

Justin David Gruchow,
Appellant.

Filed February 4, 2019
Affirmed
Cochran, Judge

Carver County District Court
File No. 10-CR-12-1228

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark Metz, Carver County Attorney, Angella M. Erickson, Assista nt County Attorney,
Chaska, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H . Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hoote n, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN , Judge
Appellant challenges the district court’s order revoking his p robation, arguing that
confinement is not necessary to protect the public and his prob ation violations were

2
technical in nature. Because the district court did not abuse its discretion in revoking
appellant’s probation, we affirm.
FACTS
On August 14, 2013, appellant Jus tin Gruchow pleaded guilty to third-degree
criminal sexual conduct in viola tion of Minn. Stat. § 609.344, subd. 1(b) (2012). He
admitted to having sexual interc ourse with A.H., who was 15 yea rs old at the time.
Gruchow’s drug use was a factor in the offense. Immediately following Gruchow’s guilty
plea, the district court stayed imposition of sentence, placed him on probation for seven
years, imposed 60 days of jail time, and required him to comple t e a p s y c h o s e x u a l
evaluation and a chemical-depende ncy assessment and to follow t he recommendations.
Probation conditions included that he abstain from using controlled substances and submit
to testing to verify his compliance. Following his psychosexua l evaluation, his probation
agreement also included that he complete sex-offender treatment.
In February 2014, Gruchow’s probation officer filed a violation report for his failure
to undergo urinary analyses (UAs ), and failure to appear for mu ltiple appointments. A
contested probation violation he aring was held on April 10, 201 4. The district court
determined that Gruchow failed to complete a chemical-dependency assessment and follow
its recommendations, failed to complete his sex-offender treatm ent, failed to appear for
appointments, and failed to complete his UAs. The court further found that these violations
were intentional or inexcusable and set a disposition hearing for July 11, 2014.
On June 3, 2014, Gruchow’s pr obation officer filed an additional probation violation
report for Gruchow’s failure to remain in contact with his agen t, failure to abstain from

3
using illegal substances, and failure to obtain a chemical-dependency assessment. At the
July 11 hearing, Gruchow admitte d to these violations. The cou rt found Gruchow in
violation, reinstated his probatio n on the same terms and condi tions, and imposed six
months in jail with the requirement to complete a chemical-dependency program.
In August 2017, Gruchow completed a sanctions conference with his probation
officer regarding Gruchow’s fa ilure to abstain from using illeg al substances after testing
positive for marijuana. Following the sanctions conference, the district court ordered that
Gruchow complete an updated chemical-dependency assessment and follow its
recommendations.
On March 5, 2018, the probati on officer filed another probatio n violation report.
The district court held a contested probation-violation hearing where Gruchow admitted to
violating his probation by failing to complete sex-offender tre atment, failing to complete
chemical-dependency treatment, failing to submit to random UAs, and failing to have
proper monitoring software on hi s smartphone. Gruchow testifie d at the hearing that he
was close to completing his sex-offender treatment program when he was terminated. He
also explained that he had not started chemical-dependency trea tment because he was
unable to contact a specific program. He testified that he mis sed his two random UAs
because he was sleeping, and that while his phone was internet capable, he did not use it
for pornography and could not afford a monitoring program. But, Gruchow acknowledged
that he did not know how much the monitoring program cost.
His former probation officer testified that she did not believ e Gruchow was
amenable to probation because of his dishonesty and “failure to follow through” in getting

4
an updated chemical-dependency assessment. His current probati on officer also testified
that Gruchow was dishonest and fa iled to make adequate progress with his sex-offender
treatment. Gruchow was repeatedly dishonest about why he missed various appointments
with probation, and at one point fabricated health problems to explain why he missed a
session of sex-offender treatment.
The district court found that G ruchow intentionally violated th e terms of his
probation, and that the need for confinement outweighed the pol icies favoring probation.
Specifically, the district court found confinement “is necessar y to protect the public from
criminal activity,” and “it woul d unduly depreciate the serious ness of this violation if
probation was not revoked.” The court revoked his probation, i mposed a 48 month
sentence, and executed his sentence. This appeal follows.
D E C I S I O N
The district court has “broad d iscretion in determining if there is sufficient evidence
to revoke probation.” State v. Austin, 295 N.W.2d 246, 249 (Minn. 1980). This court will
reverse a district court’s proba tion determination only “if the re is a clear abuse of
discretion.” Id. at 249-50.
Before the district court may revoke probation, it must “1) de signate the specific
condition or conditions that were violated; 2) find that the vi olation was intentional or
inexcusable; and 3) find that the need for confinement outweigh s the policies favoring
probation.” Id. at 250. In this case, Gruchow does not dispute that the dist rict court
adequately specified the conditi ons that were violated and prop erly found that the
violations were either intentional or inexcusable. Rather, Gruchow argues that the district

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court abused its discretion when it found the need for confinem ent outweighs policies
favoring probation.
When analyzing whether the need for confinement outweighs the policies favoring
probation, the district court “m ust balance the probationer’s i nterest in freedom and the
state’s interest in insuring his rehabilitation and the public safety.” State v. Modtland, 695
N.W.2d 602, 607 (Minn. 2005) (qu otation omitted). The balancin g test will result in
revocation if the 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
depreciate the seriousness of the violation if probation were n ot revoked.” Austin, 295
N.W.2d at 251 (citing A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved
Draft 1970)).
Gruchow challenges the district court’s finding that confinemen t is necessary to
protect the public from further criminal activity and its deter mination that the seriousness
of the violations would be unduly depreciated if probation is n ot revoked. Gruchow also
argues that the district court abused its discretion in failing to order an intermediate
sanction rather than revocation of his probation.
I. Revocation based on protection of the public from further criminal activity
Gruchow first argues that the district court abused its discre tion by finding that
confinement is necessary to ensu re public safety. He states th at the court’s concern for
public safety is unsupported by the record because none of his probation violations
“constituted new criminal activity.” Gruchow does not cite to any case law to support his

6
argument that there must be a new criminal act to justify confinement in the name of public
safety. Further, failure to complete sex-offender treatment ma y support probation
revocation even without the commission of a new criminal offense. See State v. Rock, 380
N.W.2d 211, 214 (Minn. App. 1986) (holding that the district co urt “did not abuse its
discretion in revoking probatio n based on appellant’s failure t o enter and successfully
complete sexual offender treatment”), review denied (Minn. Mar. 27, 1986); State v.
Hemmings, 371 N.W.2d 44, 46-47 (Minn. Ap p. 1985) (affirming probation r evocation
when probationer failed to complete sex-offender treatment and was considered
unamenable to treatment).
Here, the district court referenced Gruchow’s termination lette r from sex-offender
treatment when considering public safety. The termination letter stated that Gruchow was
“at risk to recidivate” because h e continued “to engage in behaviors which disregard his
treatment agreement.” The letter further stated he was conside red neither “safe, nor
appropriate, to continue to atte nd outpatient sex offender trea tment.” The district court
found that confinement was necessary “to protect the public from further criminal activity”
because Gruchow was an “untreated sex offender” who was at “a h igh risk to reoffend.”
Because the record supports the district court’s concern for public safety, Gruchow’s first
argument fails.
II. Revocation based on the seriousness of the probation violations
Gruchow next argues that the dis trict court abused its discretion by finding that “it
would unduly depreciate the seriousness of [the] violation[s] if probation was not revoked.”
Gruchow claims his violations w ere merely technical and do not amount to substantive

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reasons for revocation. A decis ion to revoke probation “cannot be a reflexive 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 (quotation omitted). Gruchow argues that each of his probation violations
were technical in nature.
First, he contends that his term ination from sex-offender treat m e n t w a s f o r
technical, not substantive reasons. Gruchow argues that his vi olation stemmed from his
inability to pay for sex-offender treatment and was “based more on the time he took to
complete the program than a substantive failure to participate or to learn from treatment.”
The record does not support this argument. While Gruchow was p reviously terminated
from sex-offender treatment because of his inability to pay, the most recent letter from his
treatment provider, CORE Professional Services, indicated he wa s terminated for failure
to make adequate progress. The letter further stated that Gruchow used marijuana, viewed
pornography, and was “dishonest on several occasions about why he was unable to attend
group, even going so far as to claim he had a heart attack and was hospitalized.” Gruchow
admitted each of these allegations at the hearing. The record reflects that his most recent
termination from sex-offender treatment was for a substantive r eason, not for a technical
reason.
Gruchow next argues that faili ng to timely enroll in chemical- dependency
programming was a technical violation. There is no evidence in the record to show that
Gruchow attempted to enroll in chemical-dependency treatment; w hile he had three
chemical-dependency assessments, he did not follow the recommen dations. Further, one

8
of his probation officers testified at the hearing that his use of substances was a “primary
factor in his original offense.” Gruchow’s use of substances w as also a component of his
termination from sex-offender treatment. Because of his history of substance abuse and its
role in the original offense, the record shows that Gruchow’s f ailure to enroll in
chemical-dependency programming was not merely a technical violation.
Finally, Gruchow argues that missing two drug tests and not pu rchasing monitoring
software for his smartphone were technical violations. The rec ord does not support his
position. The missed UAs were serious violations given Gruchow was still using drugs
and drug use was a factor in hi s sex offense. Similarly, Gruch ow’s failure to purchase
monitoring software for his smartphone was a serious violation because the monitoring
software is necessary to determine whether Gruchow is accessing pornography. The
viewing of pornography can be a trigger for sexual re-offense a nd is prohibited by
Gruchow’s probation agreement.
In summary, given the totality of the circumstances, the record supports the district
court’s determination that it w ould unduly depreciate the serio usness of Gruchow’s
violations if his probation wa s not revoked. The district cour t’s decision to revoke
probation was not “a reflexive reaction to an accumulation of technical violations.” Austin,
295 N.W.2d at 251.
III. Consideration of other sanctions short of revocation
Lastly, Gruchow claims that given the “readily available commu nity treatment
options, the district court improperly opted for the last resor t.” He maintains that an
intermediate sanction such as a year in jail with a requirement to participate in

9
chemical-dependency programming would have been more appropriat e. He argues that
because he was in the process of setting up chemical-dependency programming and had
nearly completed his sex-offender treatment, imprisonment was i mproper. But, while
Gruchow was consistent with his sex-offender treatment plan for a p e r i o d o f t i m e , h i s
probation officer testified that “he did not maintain that” and “he’s been struggling for quite
some time now.” Gruchow has had over four years to complete sex-offender treatment but
has not been successful in doing so. Most recently, he was ter minated for his dishonesty,
substance use, and pornography us e. Even after repeated warnin gs following his prior
probation violations, Gruchow fa iled to complete both sex-offen der and chemical-
dependency treatment, which indicates that probation was not succeeding at rehabilitating
him. See State v. Theel , 532 N.W.2d 265, 267 (Minn. App. 1995) (stating that a
probationer’s “failure to follow the court’s order despite repe ated warnings indicates that
the probation was not succeeding”), review denied (Minn. July 20, 1995). Additionally,
Gruchow cites no authority that requires a district court to consider intermediate sanctions
before revoking probation. Because the record supports the fin d i n g t h a t t h e n e e d f o r
confinement outweighs the policies favoring probation, the district court did not abuse its
discretion in revoking Gruchow’s probation.
Affirmed.