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This opinion will be unpublished and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
A20-0452

State of Minnesota,
Respondent,

vs.

Amonte Dajon Pate,
Appellant.

Filed December 28, 2020
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CR-18-4065

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Smith, T., Presiding Judge; Hooten, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant argues that the district court abused its discretion in revoking his
probation because it erred by finding both that he intentionally and inexcusably violated

2
his probation and that the need for his confinement outweighed the policies in favor of
continuing his proba tion. Appellant also argues that the district court plainly erred by
allowing his therapist to testify at the probation revocation hearing in violation of the
therapist-client privilege. We affirm.
FACTS
In 2015, Appellant Amonte Dajon Pate was charged w ith first -degree criminal
sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h)(ii) (2014) after being
accused of repeatedly sexually assaulting an underage family member. Appellant entered
a plea of guilty to that charge on February 25, 2016. Appellant’s plea was accepted, and
on May 13, 2016, he received a sentence of 144 months of incarceration. Execution of the
sentence was stayed for 10 years. As conditions of his probation, appellant was required
to register as a predatory offender, complete sex offender treatment, and make no changes
to his residence without the approval of his probation officer.
On November 7, 2017, a probation violation report was filed, and a warrant for
appellant’s arrest was issued based on seven alleged probation violations including failure
to engage in sex -offender treatment and failure to register as a predatory offender.
Appellant was taken into custody on June 9, 2018. On August 30, 2018, appellant admitted
to violating his probation and was sentenced to a 365-day sanction at the Hennepin County
Correctional Facility. The district court ordered that appellant be furloughed to Alpha
Human Services (AHS), a residential sex offender treatment program, when a bed became
available. The stay of execution for appellant’s 144-month sentence was not revoked.

3
That same day, appellant entered a plea of guilty to a charge of knowingly violating
his predatory offender registration requirement. Appellant received a sentence of 24
months of incarceration, the execution of which was stayed for three years. Appellant also
received a 365 -day sanction with a furlough to AHS for this offense. The district court
ordered that sanction to run concurrently with the sanction for appellant’s probation
violation.
On November 1, 2018, appellant was furloughed from incarceration to AHS.
Appellant absconded from AHS on March 3 0, 2019 , and he was terminated from the
treatment program as a result. Following his termination from AHS, a probation violation
report was filed, and a warrant for appellant’s arrest was issued on April 3, 2019. Appellant
was eventually taken into custody on June 26, 2019.
The district court held a contested probation violation hearing concerning
appellant’s eight alleged probation violations. On November 19, 2019, the district court
issued an order finding that appellant had violated six terms of his probation. The district
court held a hearing concerning sanctions for those probation violations on December 27,
2019. On January 3, 2020, the district court issued an order revoking the stays of execution
for appellant’s 144-month and 24-month sentences. Pate appeals.
D E C I S I O N
Appellant argues that the district court abused its discretion by revoking his
probation. Appellant also argues that it was plain error , requiring reversal, for the district
court to allow testimony by his therapist at the p robation revocation hearing. For the
reasons that follow, both of appellant’s arguments fail.

4
I. The district court did not abuse its discretion by revoking appellant’s
probation.

First, appellant argues that the district court abused its discretion by rev oking his
probation. Specifically, appellant contends that the district court erred both in finding that
his probation violations were intentional and inexcusable and that the need for his
confinement outweighed the policies favoring probation.
A defendan t must be afforded procedural due process before his probation is
revoked. Gagnon v. Scarpelli, 411 U.S. 778, 781–82, 93 S. Ct. 1756, 1759 (1973). Before
a district court may revoke a defendant’s probation and execute a stayed sentence, “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). As to the third factor, the district court should only revoke the defendant’s probation
if it finds, “on the basis of the original offense and the intervening conduct of the offender,”
either 1) that “confinement is necessary to protect the public from further criminal activity
by the offender,” 2) that “the offender is in need of correctional treatment which can most
effectively be provided if he is confined,” or 3) that “it would unduly depreciate the
seriousness of the violation if probation were not revoked.” State v. Modtland, 695 N.W.2d
602, 607 (Minn. 2005).
The district court nevertheless “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.” Austin, 295 N.W.2d at 249–50. “A district court abuses its discretion

5
when its decision is based on an erroneous view of the law or is against logic and the facts
in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
In this case, the district court found, and appellant concedes, that appellant violated
six conditions of his probation, namely those requiring him to (1) not use any non -
prescribed mood -altering drugs; (2) complete sex offender treatment; (3) comply with
registration requirements as a predatory offender; (4) tell probation within 72 hours of any
change of address; (5) follow all state and federal laws; and (6) stay in touch with his
probation officer. The district court found that those violations were intent ional and
inexcusable. Finally, the district court found that the need for appellant’s confinement
outweighed the policies favoring probation, both because confinement was necessary to
protect the public from further criminal activity and because appellan t was in need of
correctional treatment that could most effectively be provided if he were confined. For the
reasons that follow, the district court did not abuse its discretion in concluding that there
was sufficient evidence to revoke appellant’s probation.
First, the district court found that appellant intentionally and inexcusably violated
six terms of his probation. Specifically, the district court found that appellant intentionally
and inexcusably violated the term of his probation requiring him not to use any non -
prescribed mood-altering drugs when he intentionally obtained and ingested a controlled
substance while at AHS. The district court found that the remaining five conditions “were
simultaneously violated upon Mr. Pate absconding from his tre atment facility,” and that
these violations were intentional and inexcusable. The district court explained that the
evidence supporting its findings was that the “reason [appellant] cite[d] for leaving the

6
treatment facility was taken care of within 24 ho urs,” appellant was capable of contacting
his probation officer but chose not to, and appellant’s whereabouts were unknown for
months.
These findings are supported by the record. Appellant argues that his use of a
controlled substance, and his absconding from treatment, is excusable because of the sexual
harassment he suffered while at AHS. Appellant further contends that his failure to turn
himself in after absconding is excusable because he feared that he would be forced to return
to AHS, where he did n ot feel safe. As the district court points out and appellant admits,
however, the party who sexually harassed appellant was removed from AHS within 24
hours of the harassment. Appellant’s probation officer also testified that appellant admitted
that, after the offending party was removed, he felt safe at AHS. Moreover, appellant did
not offer to the district court—and does not offer in his briefing to this court—any rationale
for failing to maintain contact with his probation officer in the months after absconding
from AHS.
Next, the district court found that the need for appellant’s confinement outweighed
the policies favoring the continuation of his probation. Specifically, the district court
concluded that confinement is “necessary to protect the public from future crimin al
activity,” because “an untreated sex offender who has repeatedly demonstrated an inability
to comply with requirements of community -based treatment puts the general public at
risk.” The district court also appears to have found that appellant is in need of correctional
treatment which can most effectively be provided if he is confined . This finding appears
to have been based on a determination that the alternative to incarceration that appellant

7
proposed—outpatient treatment —had a lower chance of succe ss than treatment
administered while appellant was incarcerated, given that appellant was unable to complete
treatment even in a controlled, in-patient setting and “demonstrates an aversion to comply
with authority.”
Appellant argues that confinement is not necessary to protect the public from further
criminal activity because, “[d]espite the fact that [he] was convicted of failing to register
as a predatory offender, he had no other convictions that would suggest the public needed
to be protected from hi m,” and he “was otherwise complying with probation and was
participating in treatment.” But appellant fails to offer any explanation for his repeated
failure to comply with the requirements of his probation. Appellant also fails to explain
why his non-compliance should not be viewed as an indication of his willingness to break
the law. Given those failures, and given the severity of his original offense, the district
court’s finding that appellant’s confinement is necessary to protect the public from further
criminal activity is supported by the record.
The district court’s finding that appellant is in need of correctional treatment that
can most effectively be provided if he is confined is also supported by the record. Although
appellant contends tha t he would succeed in outpatient treatment, the fact that he was
unable to complete treatment even in a controlled setting undercuts this argument.
Appellant relies on a psychosexual evaluation report completed by Project Pathfinders as
evidence that he w ould succeed in in -patient treatment. That report states that appellant
“presents with the capacity to meet the expectations of outpatient programming and would
be an appropriate candidate for treatment at Project Pathfinder, Inc.” But the report also

8
cautions that appellant “might experience substantial cognitive difficulty participating in a
talk-based outpatient therapy program and especially in understanding and applying the
concepts covered therein,” and that appellant would need to address certain “ life
stabilization needs” before he would even be considered for admission to outpatient
treatment at Project Pathfinder. Given that evidence, and considering the record as a whole,
the district court’s finding that appellant is in need of correctional tr eatment which can
most effectively be provided if he is confined is supported by the record.
In sum, the district court did not abuse its discretion in concluding that there was
sufficient evidence to revoke appellant’s probation.
II. The district court did not commit plain error by permitting appellant’s
therapist to testify.

Second, appellant argues that the district court erred by allowing the therapist who
treated him at AHS to testify at the probation revocation hearing in violation of the
therapist-client privilege. Appellant admits that he did not object to his therapist’s
testimony at the time of the hearing, but he nevertheless contends that this court should
reverse the order revoking his probation because the admission of his therapist’s testimony
was plain error.
Minnesota law recognizes a therapist -client evidentiary privilege. Minn. Stat.
§ 595.02, subd. 1(g) (2018); State v. Expose, 872 N.W.2d 252, 257 (Minn. 2015). Under
this privilege, a therapist may not testify to information or opinions based on treatment of
a client without the client’s consent, except in limited circumstances that are inapplicable
here. See Expose, 872 N.W.2d at 257. A defendant who fails to object to the violation of

9
an evidentiary privilege before the district court forfeits that issue for purposes of appeal.
State v. Penkaty, 708 N.W.2d 185, 203–04 (Minn. 2006).
We nevertheless have discretion to consider the violation of an evidentiary privilege
not raised before the district court if that violation constitutes plain error. Id. at 204. The
United States Supreme Court has established a three-prong test for plain error. Johnson v.
United States, 520 U.S. 461, 466–67, 117 S. Ct. 1544, 1549 (1997). Under this test, before
we may correct an error that was not objected to there must be (1) error, (2) that is plain,
and (3) the error must affect substantial rights. Id. If these three prongs are met, we must
then assesses whether we should address the error to ensure the fairness and integri ty of
judicial proceedings. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Appellant argues that it was plain error to allow testimony by his therapist in
violation of his therapist-client privilege and that, because that error was not harmless, this
court should reverse the order revoking his probation. The state replies that, even assuming
the district court erred by permitting appellant’s therapist to testify, that error was harmless.
Specifically, the state contends that this alleged error was harmless because the state could
have presented the same evidence through the testimony of appellant’s probation officer,
who had spoken to appellant’s therapist about appellant’s performance in treatment and
could present hearsay evidence based on their conversations.
The state is correct; any error the district court may have made in admitting the
therapist’s testimony did not affect appellant’s substantial rights. The substantial rights
analysis under the third prong of the plain error test is equivalent to harmless error analysis.
State v. Matthews, 800 N.W.2d 629, 634 (Minn. 2011). Accordingly, a plain error affects

10
an appellant’s substantial rights when there is a reasonable likelihood that the error affected
the outcome of the proceeding. See id. In this case, it is not reasonably likely that the
therapist’s testimony affected the outcome of appellant’s probation revocation proceeding.
Appellant relies on Expose as support for the proposition that admission of his
therapist’s testimony affected h is substantial rights. In Expose, the Minnesota Supreme
Court held that the district court’s erroneous admission of testimony by the defendant’s
therapist was not harmless error, even though that testimony was corroborated by the
testimony of other witnes ses, because the therapist “was the [s]tate’ s first and primary
witness and the only witness with first -hand knowledge ” of the conduct at issue. 872
N.W.2d at 261. In so holding, the Expose court concluded that allowing the therapist to
testify substantially influenced the verdict. Id. at 260.
This case is distinguishable from Expose in several key respects. First, Expose dealt
with a criminal trial, while this case deals with a probation revocation hearing. The rules
of evidence are more relaxed in a probation revocation hearing than they are at trial,
perhaps most importantly in that hearsay evidence is admissible in a revocation hearing .
State v. Johnson, 679 N.W.2d 169, 174 (Minn. App. 2004). Appellant’s probation officer
could thus have given testimony relating to hearsay statements that appellant’s therapist
made to her about appellant’s performance at AHS. Crucially, those statements would not
have been excluded by appellant’s therapist-client privilege. Expose, 872 N.W.2d at 260.
The importance of the testimony in determining the outcomes of the two
proceedings is also different. In Expose, the therapist’s testimony was the only first-hand
account of the conduct at issue. Here, appellant’s probation officer g ave testimony that

11
could have served as an independent basis for finding several probation violations —
appellant’s having absco nded from AHS and his failure to provide his probation officer
with his current address after doing so.
Appellant correctly points out that his therapist was the state’s first and primary
witness at the revocation hearing. It was also appellant’s therapist alone who provided a
first-hand account of appellant’s performance in treatment. Appellant also emphasizes that
the district court appears to have relied on findings that appellant “was unable to thrive in
a controlled, in-patient setting,” and “may be better treated in a secured and confined prison
facility,” in revoking appellant’s prob ation—findings that would likel y have been based,
at least in part, on his therapist’s testimony.
Those findings, however, were likely also based on the fact that appellant absconded
from AHS. The therapist’s testimony was not required to establish that fact, because
appellant’s probation officer also testified at the revocation hearing. The probation
officer’s testimony covered much of the same ground as the therapist’s, especially by
relating statements the therapist made to the probation officer concerning a second incident
when appellant absconded from AHS prior to March 30, 2019, appellant’s rule-breaking at
AHS, and various interactions between appellant and therapists and other participants at
AHS. And the probation officer’s testimony could itself have served as evidence of several
probation violations—most importantly appellant’s having absconded from AHS on March
30, 2019. That violation alone could have led the district court to revoke appellant’s
probation.

12
On balance, it is not reasonably likely that the district court’s admission of the
therapist’s testimony affected appellant’s substantial rights by impacting the outcome of
his probation revocation hearing. Because the admission of the therapist’s testimony did
not affect appellant’s substantial rights, the admission was not plain error, see Johnson,
520 U.S. at 466–67, and we need not reverse.
Affirmed.