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This opinion will be unpublished and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
A19-0293

State of Minnesota,
Respondent,

vs.

Kristopher Paul Poignee,
Appellant.

Filed September 30, 2019
Affirmed
Kirk, Judge*

Crow Wing County District Court
File Nos. 18-CR-16-775, 18-CR-16-776, 18-CR-16-840

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

Donald F. Ryan, Crow Wing County Attorney, Candace Prigge, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Kirk,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the district court’s decision to revoke his probation and to
execute his prison sentences, arguing that the district court erred in concluding that the
need for confinement outweighed the policies favoring continued probation because the
court did not inquire as to whether appellant had the ability to pay restitution, and because
appellant had completed chemical-dependency treatment while on probation. We affirm.
FACTS
In January 2017, appellant Kristopher Paul Poignee pleaded guilty to first -degree
burglary, unauthorized use of a motor vehicle, and two counts of third -degree burglary.
The district court sentenced Poignee to 129 months for the first -degree burglary and 30
months for the unauthorized use of the motor vehicle, each stayed for ten years. The district
court sentenced Poignee to 36 months for each of the two third -degree burglary
convictions, each stayed for five years. The district court’s decision to stay execution and
instead place Poignee on probation was a dispositional departure. Poignee was required to
complete long-term chemical-dependency treatment at Teen Challenge and pay restitution
in the amount of $4,235 as part of his probation.
On October 12, 2018, Poignee’s probation officer filed a probation-violation report
alleging that Poignee failed to inform probation of a new residence within the required 72-
hour period. After a warrant was issued for Poignee, he appeared in district court for a
probation-violation hearing, and was ordered to submit to a urinalysis (UA). On November
20, probation amended their probation -violation report to allege that Poignee failed the

3
UA, failed to keep in contact with probation, and did not pay restitution as ordered . At a
November 21 probation-violation hearing, Poignee admitted to violating his probation.
The district court stated that “confinement is necessary to protect[] the public from
further criminal activity” and that “it would depreciate the seriousness o f these violations
if probation were not revoked” because “going off the radar and being out of contact with
probation and being dishonest with probation” were not technical violations. Accordingly,
the district court revoked Poignee’s probation and execu ted his prison sentences, to be
served concurrently. This appeal follows.
D E C I S I O N
When a probationer violates a condition of probation, the district court may continue
probation, revoke probation and execute the stayed sentence, or order interm ediate
sanctions. Minn. Stat. § 609.14, subd. 3 (2018). 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). To revoke 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, 250 (Minn. 1980). 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 t reatment 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). “The decision to revoke cannot be a

4
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.” Id. (quotations omitted). 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.” Id. at 249-50. 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).
Poignee asserts that the district court’s decision to revoke his probation was an
impermissible “reflexive reaction to an accumulation of technical violations.” Austin, 295
N.W.2d at 251 (quotation omitted). Poignee contends that he “substantially complied with
probation by completing inpatient treatment” and that the need for confinement does not
outweigh the policies favoring probation because he engaged in prosocial behavior while
on probation, has family support, and “wanted to be there for his children.” But the district
court considered these arguments at the revocation hearing, and weighed them against the
nature of Poignee’s probation violations. And w hile the district court may not
automatically revoke probation and must instead weigh the Austin factors even when there
has been a downward dispositional departure, the district court is entitled to consider
departure in a case where a defendant was convicted of an underlying case where the
legislature had dictated an executed prison sentence. See State v. Finch, 865 NW 2d 696,
705 (Minn. 2015) (stating that the district court must apply the Austin factors, but noting
that “[w]e understand the concerns of the district court when a prob ationer violates a

5
condition of his probation, especially when probation was ordered as part of a downward
dispositional departure”).
Here, t he district court specifically noted that Poignee lied to probation about
“needing to attend a daughter’s school p lay, when, in fact, neither of the daughters had a
school play,” and that while Poignee had “tried treatment programs . . . and tried to remain
sober, his history is that of committing crimes with victims when using drugs.” The district
court also noted t hat while “there may not have been victims as a result of these specific
violations . . . it’s the use of drugs that has continued.” The district court noted that Poignee
had a history of “assaultive behaviors . . . while using intoxicants” and thus, “confinement
is necessary to protecting the public from further criminal activity because [Poignee],
unfortunately, once he gets out of the treatment program, simply has not been able to
maintain, and there’s no indication that he’ll be able to maintain sobrie ty.” The district
court further explained that “it would depreciate the seriousness of these violations if
probation were not revoked” and that it “did not find going off the radar and being out of
contact with probation and being dishonest with probation . . . to be technical. You can’t
supervise somebody if you have no idea where they are, and it’s supervised probation.”
The district court also noted that it did not agree that “the use of intoxicants is a nonserious
violation, because use of intoxicant s have historically been tied to the commission of
offenses with victims. And not maintaining contact is not a technical violation because
you can’t supervise somebody who can’t be reached and is out of contact.”
Based on our review of the record, we conclude that the district court did not abuse
its discretion by revoking Poignee’s probation.

6
Poignee asserts that his case “is the rare case where policy considerations required
that the district court not revoke [his] probation, even though the facts may have allowed
it,” and that the district court abused its discretion in revoking his probation. Poignee
argues that while the district court “inquired whether Poignee knew he should have made
more than one payment,” the court did not ask why or whether Poignee had the ability to
pay more, and thus abused its discretion. But the district court acknowledged on the record
that Poignee was not expected to have completed paying restitution. And as Poignee
acknowledges, the failure to pay restitution was only one of the probation violations. In its
analysis of the Austin factors, the district court weighed the seriousness of Poignee’s other
probation violations. The record reflects that it was the nature of Poignee’s other violations
which led to the district court’s decision to revoke Poignee’s probation. The district court
did not abuse its discretion because the failure to pay restitution was not the determining
factor in whether to revoke or continue Poignee’s probation.
Affirmed.