State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0671

State of Minnesota,
Respondent,

vs.

Jeremy Ryan Potter,
Appellant.

Filed January 11, 2021
Affirmed
Reyes, Judge

Redwood County District Court
File No. 64-CR-14-708

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

Jenna M. Peterson, Redwood County Attorney, Travis J. Smith, Special Assistant County
Attorney, William C. Lundy (certified student a ttorney), Smith & Johnson, Slayton,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Gaïtas,
Judge.

2
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from an order revoking his probation, appellant argues that the record
does not support the district court’s finding that the need for confinement outweighed the
policies favoring probation. We affirm.
FACTS
Between February 2012 and January 2014, appellant Jeremy Ryan Potter engaged
in sex with a minor female four times. Respondent State of Minnesota charged appellant
with four counts of third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd.
1(b) (2010). Appellant pleaded guilty to one cou nt. Consistent with the plea agreement,
the district court dismissed the other counts, stayed imposition of the 48-month
presumptive sentence, ordered 120 days of jail time, and placed appellant on probation for
five years beginning February 5, 2015. Among the specific terms of probati on were that
appellant must (1) complete a psychosexual assessment and follow its recommendations;
(2) complete a sex -offender-treatment program; (3) not acc ess or possess pornography;
(4) not have contact with minor females; and (5) abstain from mood-altering chemicals.
Appellant violated the terms of his probation three times. First, in August 2015, his
probation agent filed a probation -violation report stating that appellant failed to abstain
from mood-altering chemicals. At the probation -revocation hearing, a ppellant admitted
that he used marijuana twice per week . The district court reinstated probation under the
original terms, but added that appellant must complete an updated chemical -dependency
assessment. Second, in November 2019, appellant admitted to his probation agent that he

3
drove his girlfriend and her 15 -year-old daughter from Walker, Minnesota, to Bemidji,
Minnesota, despite knowing he could not have contact with minor girls. The district court
again reinstated probation under the original terms, but also imposed 20 days in jail.
Third, appellant accessed pornography on his cellphone, computer, and gaming
system beginning approximately three hours after his release from jail on January 2, 2020.
Appellant’s probation officer received a report from the monitoring software on appellant’s
computer showing that appellant accessed more than 100 pornographic images between
January 2 and January 9 . The sex-offender-treatment program appellant had attended for
about two years discharged him because of his pornography use and lack of progress . At
the probation-violation hearing, appellant admitted that he viewed pornography, that he
knew viewing pornography violated his probation terms, and that his treat ment program
discharged him.
The district court found that (1) appellant violated the terms of his probation by
accessing pornography and failing to complete sex-offender treatment; (2) the violations
were intentional and inexcusable; and (3) the need for confinement outweighed the policies
favoring probation. The district court therefore revoked appellant’s probation and executed
the remainder of his 48-month sentence. This appeal follows.
DECISION
Appellant argues that the record does not support the d istrict court’s determination
that the need for confinement outweighs polices favoring probation because the district
court merely recited facts showing that he is likely to reoffend. We disagree.

4
The district court has broad discretion in determining if there is sufficient evidence
to revoke probation , and we will reverse only if there is a clear abuse of that discretion.
State v. Austin , 295 N.W.2d 246, 249 -50 (Minn. 1980). When revoking probat ion, the
district court must “1) designate the specific cond ition or con ditions that were violated;
2) find the violation was inte ntional or inexcusable; and 3) find that the need for
confinement outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250. The
district court’s decision to revoke probati on cannot be a “reflexive reaction to an
accumulation of technical violations,” but must show that the probationer’s behavior
demonstrates “that he . . . cannot be counted on to avoid antisocial activity.” Id. at 251.
The district court cannot merely “recit[e] the three [Austin] factors and offer[] general, non-
specific reasons for revocation.” State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005).
Rather, it must create a “thorough, fact -specific record[]” and “convey [its] substantive
reasons for revocation and the evidence relied upon.” Id.
Appellant challenges only the third Austin factor. In analyzing this factor, the
district court “should refer to” whether “(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 not revoked.” Modtland, 695
N.W.2d at 607. The district court may consider the probationer’s original offense and
intervening conduct in analyzing the Modtland subfactors. Austin, 295 N.W.2d at 251.
That the record supports one Modtland subfactor may allow the district court to revoke
probation. Id.

5
In considering the Modtland subfactors, the district court here emphasized the
nature and increasing frequency of appellant’s violations. It also emphasized that, despite
being on probation for five years and in treatment for two of those years, appellant failed
to gain insight into the nature of his offense. The district court also note d that appellant
accessed pornography within hours of being released from jail on the second violation, and
that in doing so, appellant used search terms such as “daughter,” “real step-daughter,” and
“young teen.” In light of th ese facts , the district court found that (1) confinement is
necessary to protect the public from further criminal activity by appellant and (2) not
revoking probation would unduly depreciate the seriousness of appellant’s violations.
The record supports the district court’s findings on both the first and third Modtland
subfactors. We recognize that appellant made progress during probation: he obtained
stable housing and employment and participated in sex-offender treatment. However,
despite treatment, he failed to avoid the second and third probation violations. He
committed those two violations, both of which shared characteristics with his original
offense, in close succession. These violations escalated in seriousness, evidenced by the
search terms appellant used to access pornography and those terms’ relatedness to his
original offense . Appellant also used “incognito mode” and denied using his gaming
system to access pornogr aphy in an effort to hide his pornography use. Significantly,
appellant admitted that drug use, being around teenagers, feeling lonely and depressed, and
accessing pornography would increase the likelihood of reoffense. His first violation
involved drug use. His second involved being around a teenager. And his third involved

6
him accessing pornography while lonely and depressed. The record supports the district
court’s decision to revoke probation based on the first Modtland subfactor.
The state argues that appellant waived his argument on the third Modtland subfactor.
But the evidence and arguments for both the first and third Modtland subfactors are
intertwined, so we also address the third subfactor here. The record shows that appellant’s
violations were serious. Appellant did not attend treatment for the first three years of
probation and failed to progress in treatment during the remaining two years. Given the
escalating seriousness of appellant’s violations and the apparent inef ficacy of probation,
the record supports the district court’s finding that not revoking probation would unduly
depreciate the seriousness of appellant’s violations. Because the record supports the
district court’s findings on the first and third Modtland subfactors, we conclude that it did
not abuse its discretion by revoking appellant’s probation.
Affirmed.