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This opinion will be unpublished and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
A19-1713

State of Minnesota,
Respondent,

vs.

Corey Rashad Culberson,
Appellant.

Filed May 26, 2020
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-15-6985

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

Michael O. Freeman, Hennepin County Attorney , Jean Burdorf, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bjorkman, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Corey Rashad Cu lberson pleaded guilty to th ird-degree criminal sexual
conduct after police discovered him having sexual contact with a 15-year-old girl. While

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on probation, Culberson partic ipated in multiple sex-offender-treatment programs, but
each program discharged him based on his behavior. Following his third probation
violation, the district court revoked his proba tion and ordered execution of his sentence.
Culberson challenges this revocation, arguing that the record does not support the district
court’s findings. Because there is ample evid ence in the record to support the district
court’s decision to revoke Culberson’s probation, we affirm.
FACTS
In March 2015, police discovered appellant Corey Rashad Culberson having sexual
contact with a 15-year-old girl in his car, park ed in a graveyard. Bo th he and the victim
admitted to the police that they had sexual intercourse. The state charged Culberson, then
age 35, with third-degree criminal sexual conduct.
Culberson pleaded guilty. He submitted to a presentence psychosexual evaluation
and a presentence investigation. After reviewing these reports, the district court sentenced
Culberson pursuant to the plea agreement: a three-year stay of imposition, 180 days in jail
with work release, and othe r conditions including no co ntact with the victim and
completion of a sex-offender-treatment program.
Nearly three years later, probation filed a violation report alleging that Culberson
had failed to complete sex-offender treatm ent. Specifically, Culberson had been
discharged from two different programs: outpatient treatment with Alpha Human Services
(Alpha) and Turning Leaf individual therapy. And his discharges from the programs were
due to insufficient progress and excessive absences and tardiness. At the violation hearing,
Culberson admitted that he faile d to complete the two treatm ent programs. The district

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court extended his probation term by three years and ordered him to serve 120 days in the
workhouse, but permitted his furlough to Alpha’s residential treatment program.
Almost four months later, probation filed a second report alleging two new
violations. First, that Culberson failed to complete treatment because he had been
suspended from Alpha. In the report, the pr obation officer described how Culberson had
been doing poorly in treatment, including making rude and disrespectful comments about
women and girls, telling stories that disrupted group sessions, being antagonistic with his
female therapist, and forging staff initials on a document for another client. The report also
alleged that Culberson was having contact with his victim (now 18), that she had moved in
with him several months prior, and that the two were having an ongoing sexual
relationship. At the second hearing, Culberson admitted to the violations, and the district
court ordered him to serve 90 days in jail.
About six months after his second violation, probation filed a third violation report,
alleging that Culberson again failed to comp lete sex-offender treatment after being
discharged from Alpha. The report descri bed how Culberson was “returning to old
behaviors” in treatment and making only marginal progress. Staff at Alpha intercepted a
note drafted by Culberson comparing the breasts of a female therapist with those of another
woman. After that incident, Culberson continue d to interfere with staff and other clients,
which affected their therapeu tic progress, and he had “not advanced beyond the most
preliminary phase” of treatment. The state submitted the discharge summary from Alpha
to the court for consideration and requested revocation of Culberson’s probation.

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At the violation hearing, Cu lberson again admitted to the violation. The district
court found that his violation was intenti onal and inexcusable. And it found that
confinement was necessary to prevent future crim inal conduct and that treatment could
only be effectively delivered in confinement. After argument from the parties as to
disposition, the district court revoked Culb erson’s probation and ordered him to serve
36 months in prison. Culberson appeals.
D E C I S I O N
Culberson argues that the di strict court abused its di scretion by revoking his
probation. District courts have broad discretion to determ ine whether there is sufficient
evidence to revoke probation, and we will not reverse unless the court clearly abused that
discretion. State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). And we review findings
of fact for clear error. State v. Evans, 756 N.W.2d 854, 870 (Minn. 2008).
When deciding whether to revoke probation, the Minnesota Supreme Court has
adopted a three-step framework that district courts must follow. Austin, 295 N.W.2d at
250. The three Austin factors require a district court to: “1) designate the specific condition
or conditions that were violated; 2) fi nd that the violation was intentional or
inexcusable; and 3) find th at need for confinement ou tweighs the policies favoring
probation.” Id. Culberson admitted to violating his probation, and he does not contest the
first Austin factor in this appeal. Rather, he cha llenges the district court’s determinations
on factors two and three. We review each finding in turn.

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Intentional or Inexcusable
After designating the specific probation cond ition that was violated, district courts
must find that the probationer’s violation was “intentional or inexcusable.” Id. Here, the
district court’s conclusion that Culberson’s violation was intentional or inexcusable is
supported by the record. Culb erson did not put forth the e ffort necessary to complete
treatment, or even progress past the “preliminary phase” after six months of programming
at Alpha. He attempted treatment a tota l of three times—including in outpatient,
individual, and residential settings—and was discharged based on his poor behavior, which
persisted each time he restarted treatment. Alpha provided him se veral opportunities to
complete treatment, but he failed to do so each time. His final discharge was due to his
repeated unwillingness to change his poor beha vior, interference with therapy, failure to
take treatment seriously, and ongoing disrespect to staff and other clients.
The district court also gave Culberson several chances to complete treatment. When
he violated probation the two previous times, the court declined to revoke probation. And
after the second violation, at a review he aring, the court warned Culberson that he
“need[ed] to succeed” and “pull it together” because he was “holding on by a thread,” and
still in the treatment program “but it sounds like barely.” Despite this warning, Culberson
continued to not make progress in treatment and was discharged from the program a few
months later. Culberson’s failure to coopera te with treatment and make progress in the
program was intentional and inexcusable. The district court’s finding on this factor is
amply supported by the record.

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Yet, Culberson advances three arguments as to why the district court’s conclusion
that his failure to complete treatment was intentional and inexcusable was erroneous. First,
according to Culberson, his failu re to complete treatment wa s not intentional because he
was still participating in treatment. But the requirement was that Culberson complete
treatment, not merely attend and participate. And this court has previously affirmed the
revocation of probation based on a probationer’s failure to complete his required treatment
program. See State v. Rock , 380 N.W.2d 211, 212-13 (M inn. App. 1986) (affirming
revocation when the probationer was not ac cepted into two treatment programs and
consequently failed to complete sex-offender treatment), review denied (Minn.
Mar. 27, 1986); State v. Hemmings , 371 N.W.2d 44, 47 (Minn. App. 1985) (affirming
revocation when the probationer was discha rged from one treatment program and not
accepted into another). More to the point, at the time of the revocation hearing, it does not
appear that Culberson was participating in any treatment program.
Second, Culberson contends that he ma y have been more successful in other
community-based programs. He suggests that he did not get along with his therapist at
Alpha and that this contributed to his struggle to make progress. But Culberson’s probation
officer noted that he had five different therapists throughout his various treatment attempts
and had difficult relationships with all of them, which sugges ts that the difficulty rested
with Culberson and not the providers.
Finally, Culberson asserts that he had no control over Alpha discharging him,
meaning that his failure to complete its pr ogram was not intentional. But Culberson’s
behavior is what caused Alpha to discharge him, as is made clear from the court’s findings,

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which are supported by the record. Overall, the district court’s conclusion that Culberson’s
failure to complete treatment was intentional and inexcusable is supported by the record.
Comparing the Need for Confinement with the Policies Favoring Probation
Next, we turn to the third factor, in which the district court must find that the “need
for confinement outweighs the policies favoring probation.” Austin, 295 N.W.2d. at 250.
In doing so, “courts must balance the probati oner’s interest in freedom and the state’s
interest in insuring his rehabilitation and th e public safety, and base their decisions on
sound judgment and not just their will.” State v. Modtland , 695 N.W.2d 602, 607
(Minn. 2005) (quotations omitted). The supr eme court outlined three subfactors a court
should consider in this analysis.
Revocation followed by imprisonment should not be the
disposition, however, unless the court finds on the basis of the
original offense and the interv ening 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
(iii) it would unduly deprec iate the seriousness of the
violation if probation were not revoked.

Austin, 295 N.W.2d at 251 (quotation omitted). The district court found that the first and
second subfactors above were met here. These findings are supported by the record.
With regard to the first subfactor, Culberson’s confinement was necessary to protect
the public. In his psychosexual evaluation, Culberson was considered a moderate to high
risk to reoffend. And the Alpha discharge summary concluded that, based on assessments
of Culberson’s psychological, interpersonal, and sexual functioning, he was at a high risk

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to reoffend at the time of his discharge. These reports indicate that the public would likely
be at risk if Culberson were not confined.
Turning to the second subfac tor, the record demonstrates that Culberson was in need
of treatment that could be most effectively provided while he is confined. It is well
documented that Culberson failed to complete community-based treatment multiple times,
even in increasingly more restrictive settings. He struggled with absences and tardiness in
outpatient settings, and he str uggled with appropriate beha viors and compliance when
programming was delivered in a residential setting. Alpha’s discharge summary opined
that Culberson acted like he was “above therapeutic involvement” and viewed “treatment
as if it were a joke.” The record supports the district court’s finding that Culberson failed
to succeed in treatment outsid e of confinement, inviting its conclusion that the most
effective way to provide treatment here was through confinement.1
Still, Culberson challenges the district c ourt’s findings under th is factor on three
grounds. First, according to Culberson, an intermediate sanction would have been more
appropriate. While it is true that re vocation is generally a last resort, State v. Osborne ,
732 N.W.2d 249, 253 (Minn. 2007), the district court only revoked probation after
Culberson’s third violation. And the supreme court has held that it is reasonable to
conclude that treatment has failed when a probationer has “been offered treatment but has

1 Culberson also addressed the last subfact or, about depreciating the seriousness of the
violation, in his brief. But the district c ourt made no findings on this subfactor, and the
subfactors are separated by “or” so findings about two of the three subfactors are sufficient
to sustain the revocation. See State v. Loge , 608 N.W.2d 152, 155 (Minn. 2000)
(concluding that “or” is generally disjunctive).

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failed to take advantage of th e opportunity or to show a commitment to rehabilitation.”
Austin, 295 N.W.2d at 251.
Second, Culberson contends that confin ement was not necessary to protect the
public because he committed no new offenses while he was on probation. But he cites no
authority for the assertion that he must have committed a crime for the district court to
determine that his confinement was necessary to protect public safety. See State v. Rottelo,
798 N.W.2d 92, 95 (Minn. App. 2011) (a ffirming probation revocation despite the
appellant’s assertion that he committed no new crimes while on probation), review denied
(Minn. July 19, 2011). And the record indica tes that Culberson is at a moderate to high
risk of reoffending, further u nderscoring the risk to the pub lic if he remained in the
community untreated.
Finally, according to Culberson, while the district court found that treatment could
be most effectively delivered while he was confined, there was no proof in the record that
treatment was available in prison. But Culb erson fails to provide legal support for his
assertion that there must be proof in the record that specialized treatment in prison is certain
to sustain a district court’s finding. And his repeated failures to complete treatment while
out of prison sufficiently demonstrate that treatment in the community would not succeed.
Even if the district court were unsure whet her treatment would be available to Culberson
in prison, it did not abuse its discretion by concluding that in-prison treatment would be
more effective when out-of-prison treatment had failed.
In sum, Culberson admitted to violating his probation by failing to complete a
sex-offender-treatment program. The district court did not abuse it s broad discretion by

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finding that this violation was intentional and inexcusable and that the need for his
confinement outweighed the policies favoring probation. And the court’s findings are
supported by the record. Accordingly, we affirm.
Affirmed.