A19-0015

This opinion will be unpublished and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
A18-1995
A19-0015

State of Minnesota,
Respondent,

vs.

Cody Padraic Trott,
Appellant.

Filed August 19, 2019
Reversed
Jesson, Judge

Freeborn County District Court
File No. 24-CR-17-726

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

David Walker, Freeborn County Attorney, Abigail H. Lambert, Assistant County Attorney,
Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. W ithall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jess on, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After escaping from custody, appellant Cody Padraic Trott was sentenced to a
stayed sentence of 17 months and placed on probation for five years. But the district court

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revoked that probation after Tr ott tested positive for methamph etamine and was charged
with crimes in multiple pending cases. Trott challenges the di strict court’s revocation of
his probation, arguing that the record was insufficient to supp ort the district court’s
findings. Because the district c ourt made inadequate findings when considering whether
the need for confinement outweighed the policies favoring probation, we reverse.
FACTS
In November 2016, while on intensive supervised release, appell ant Cody Padraic
Trott ran from his supervised-release agent and subsequently removed his ankle monitoring
device.1 After being apprehended, Trott was charged with and pleaded g uilty to escape
from custody. In December 2017, the district court sentenced Trott to a stayed sentence of
17 months, placing him on probation for five years.
Seven months later, Trott’s probation agent filed a violation report alleging that
Trott violated the following co nditions of his probation: (1) f ollow all state and federal
criminal laws, and (2) no use of mood-altering chemicals unless prescribed by a medical
professional and taken as direct ed. A contested evidentiary he aring was held in
September 2018 on the alleged probation violations.
During the evidentiary hearing, Trott’s probation officer test ified in support of the
alleged probation violations. T he probation officer first expl ained that Trott had
11 pending court files alleging new charges ranging from petty misdemeanors to felonies.
The state presented no evidence of the charged conduct, and, at that time, Trott had not

1 Prior to being on intensive supervised release, Trott was in prison.

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been convicted of any of the charges. Trott’s counsel stipulat ed to the existence of the
pending charges, which the court accepted. But when considering the pending case files,
the district court did not count the petty misdemeanors as crimes.
In support of the second viola tion, the probation officer test ified that Trott failed
two urinalysis tests. First, sh e stated that Trott tested posi tive for methamphetamine in
May 2018. And the second test, administered in July 2018, was positive for amphetamines.
The probation officer testified that Trott stated he had a pres cription for Adderall, which
would have caused the positive test for amphetamine. But Trott’s prescription was never
verified.
At the end of the hearing, the district court found that Trott violated both of the
conditions of probation. The distr ict court identified the fir st condition as “obey the law
and be of good behavior” and foun d that the existence of nine p ending case files
demonstrated that Trott violated that condition. But the district court noted that it preferred
to see convictions before finding violations on this condition, and that the violation was
“ t e nuo us i n t hi s se ns e .” The di strict court further found that Trott violated the second
condition, finding that Trott used methamphetamine. And when d eciding whether to
revoke Trott’s probation, the district court stated that it cou ld not ignore the nine pending
case files, as well as Trott’s dislike of probation. Because o f those reasons, it executed
Trott’s 17-month sentence, with credit for 366 days.
In October 2018, the state filed a motion to reopen the probation-revocation hearing
to correct testimony. At the motion hearing, Trott’s probation officer testified that she
misspoke at the initial probation revocation hearing and that s he was not the person who

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administered the first urinalysis test. The district court dec ided to let its previous order
stand. Trott appeals the revocation of his probation and seeks reversal of the execution of
his sentence.
D E C I S I O N
The district court has broad discretion in deciding whether sufficient evidence exists
to revoke probation, and this court will reverse only if there i s a c l e a r a b u s e o f t h a t
discretion. State v. Austin , 295 N.W.2d 246, 249-50 (Minn. 1980). When revoking
probation, a district court must: (1) specify the condition or conditions that were violated;
(2) find that the violation was intentional or inexcusable; and (3) find that the need for
confinement outweighs the policies favoring probation. Id. at 250. These conditions are
collectively referred to as the “ Austin factors.” They dictate that a decision to revoke
probation cannot be a “reflexi ve reaction to an accumulation of technical violations, but
requires a showing that the offender’s behavior demonstrates th at he or she cannot be
counted on to avoid antisocial activity.” Id. at 251 (quotations omitted). It is a question of
law whether the district court made the required Austin findings, which this court reviews
de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
Trott contends that the district court abused its discretion by revoking his probation
because the record was insufficient to support its decision.2 Because the district court failed

2 Throughout Trott’s argument, he asserts that the probation off icer was not credible due
to her incorrect testimony, whic h was the subject of the motion hearing. But the district
court found the probation officer credible. And this court def ers to the district court for
credibility determinations. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d,
508 U.S. 366, 113 S. Ct. 2130 (1 993). As a result, we consider the probation officer’s
testimony as being credible throughout our analysis.

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to make the requisite findings on the third Austin factor (that the need for confinement
outweighs the policies favoring probation) and impermissibly re lied on criminal charges
alone, without clear and convin cing evidence that Trott committ ed the alleged conduct
underlying those same charges, we agree.
We begin by considering the first two Austin factors: the conditions violated were
specified and the violation was intentional or inexcusable. He re, the district court
determined that Trott violated two probation conditions: (1) fo llow all state and federal
criminal laws, and (2) no mood-altering chemicals unless prescr ibed by a medical
professional and taken as directed. The record supports the de termination that Trott used
mood-altering chemicals. Specifically, the probation officer t estified that Trott’s first
urinalysis test was positive for methamphetamine and Trott admi tted to using
methamphetamine. And the district court found that Trott’s met hamphetamine use was
intentional or inexcusable. It noted that “there was some indi cation of an Adderall
prescription but that, to [the co urt’s] knowledge, won’t trigge r a positive meth test.”
Nothing in the record demonstrat es that the violations were uni ntentional or excusable.
Accordingly, the district court did not abuse its discretion when it considered the first and
second Austin factors with regard to the condition that Trott not use mood-al tering
chemicals.
But the record does not support the determination that Trott did not follow all state
and federal criminal laws. The d istrict court based its findin g that this condition was
violated on Trott’s criminal cha rges in nine pending case files . The record contains no
evidence that Trott committed the alleged conduct underlying th e charges. And criminal

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charges alone do not constitute c lear and convincing evidence o f the alleged underlying
criminal conduct. State v. Scholberg , 393 N.W.2d 247, 249 (Minn. App. 1986). But
because the record supports the f inding that Trott violated the probation condition of not
using mood-altering chemicals, we move to consider the third Austin f a c t o r w i t h t h i s
condition violation in mind.
The third Austin factor requires the district court to assess whether the need for
Trott’s confinement outweighs t he policies favoring probation. In doing so, the district
court should consider whether: (1) confinement is necessary to protect the public from
further criminal activity, (2) th e offender needs correctional treatment that can most
effectively be provided in prison, or (3) reinstating probation would unduly depreciate the
seriousness of the violation. Modtland, 695 N.W.2d at 607.
Here, the district court made specific findings on the third Austin factor. After
outlining Trott’s probation viol ations and finding that they we re intentional, the district
court stated:
The third and final factor, and that’s where these cases always
turn, is the confinement versus probation. And that’s the one
where it’s always difficult for the [c]ourt. The bottom line here
is I understand we don’t have new convictions here, but we
have -- I can’t ignore the fact -- that we have nine new files
pending. And it appears, from all indications, that -- and
maybe Mr. Trott will disagree with me -- in fact, he’s made it
clear he doesn’t like probation and probably isn’t, not
probably, isn’t amenable to probation. For that reason, I’m
going to find that the third Austin factor has been proven.

Upon review, we conclude that the district court failed to make adequate findings
on the third Austin factor. It failed to consider the appropriate factors under the third Austin

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factor, as outlined in Modtland. It did not directly tie its analysis on the third Austin factor
to Trott’s use of mood-altering chemicals. Rather, it appears to have based its decision to
revoke upon Trott’s criminal cha rges in nine pending case files , none of which were
supported by clear and convincing evidence that Trott committed the underlying criminal
conduct.
Relying upon pending case files to revoke Trott’s probation, wi thout more, was
inappropriate. In probation-revocation cases, the state is req uired to prove a violation by
clear and convincing evidence. Minn. R. Crim. P. 27.04, subd. 2(1)(c)b. But a criminal
charge need only be supported by probable cause, which “is defi ned as some showing by
evidence which fairly and reasonably tends to show the existenc e of the facts alleged.”
State v. Lopez , 631 N.W.2d 810, 814 (Minn. App. 2001), review denied ( M i n n .
Sept. 25, 2001). Accordingly, a criminal charge alone is insufficient to support a probation
revocation. See Scholberg, 393 N.W.2d at 249. As this court stated in Scholberg:
By itself, or even where supported by a statement of cause for
a complaint, the charge does not fairly demonstrate an
intentional act of the probationer. By itself, the act of
accusation does not show an act of the probationer, the
essential substance of a need for confinement.

Id. Accordingly, if the state proves by clear and convincing evid ence that the defendant
committed the alleged unlawful conduct underlying a criminal ch arge, the district court
may rely upon that charge in its probation-revocation decision. See State v. Spanyard, 358
N.W.2d 125, 127 (Minn. App. 1984 ) (upholding probation revocati on based on alleged
criminal conduct that did not result in charges), review denied (Minn. Feb. 27, 1985). Here,
however, the record contains no substantive evidence to demonstrate that Trott committed

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the underlying alleged criminal conduct. And when discussing the third Austin factor, the
district court acknowledged that there were no new convictions, but stated it could not
ignore that there were “nine new files pending.” As such, the district court inappropriately
relied upon Trott’s pending charges, without any substantive evidence that Trott committed
the underlying criminal conduct, when making the third Austin finding.
Still, the state argues that the re was ample evidence to suppor t the district court’s
decision to revoke Trott’s probation. In support of its argument, the state draws this court’s
attention to State v. Hamilton, 646 N.W.2d 915, 917-18 (Minn. App. 2002), review denied
(Minn. Sept. 25, 2002). In Hamilton, in reviewing a district court’s probation-revocation
decision where it failed to make findings on the second and third Austin factors, this court
stated, “[w]hile we would prefer that the district court make e xplicit findings on each
element articulated in Austin, we conclude on this record that the district court’s decision
to revoke [appellant’s] probation was amply supported by eviden ce and was not an abuse
of discretion.” 646 N.W.2d at 918. But subsequently, in Modtland, the supreme court held
that appellate courts cannot affirm a district court’s decision based on sufficient evidenc e
when the district court did not make the requisite Austin findings. 695 N.W.2d at 606.
Accordingly, the state’s argument is unpersuasive.
In sum, it was inappropriate for t he district court to rely upo n the existences of
Trott’s pending criminal charges when revoking his probation, w ithout clear and
convincing evidence that Trott committed the alleged conduct un derlying those charges.
And because the district court failed to properly balance the need for confinement against
the policies in support of proba tion when it relied upon unprov en criminal conduct, its

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finding on the third Austin factor was inadequate. As a result, the district court abused its
discretion when it revoked Trott’s probation.
Reversed.