Donald Gordon Moore, petitioner, Appellant,

This opinion will be unpublished and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
A20-0891

Donald Gordon Moore, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 28, 2020
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-10-42630

Cathryn Middlebrook, Chief Appellate Public Defender, V eronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jordan W. Rude, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the district court’s denial of his pet ition for postconviction
relief. Because the district court did not abuse its discretion when it revoked appellant’s
probation, we affirm.
FACTS
In September 2010, respondent State of Minnesota charged appellant Donald
Gordon Moore with two counts of first -degree criminal sexual conduct for touching the
bare vagina of the victim, a four-year-old girl. In January 2011, appellant entered a plea
of guilty to one count of criminal sexual conduct and the state dismissed the second charge.
During the factual-basis portion of the plea, appellant admitted that he touched the victim’s
vagina with his hand on 5-10 occasions for the purpose of sexual gratification. The district
court sentenced appellant to 144 months in prison, stayed for 10 years. As a condition of
his probation, the district court required appellant to “enter and successfully complete a sex
offender-specific treatment program and aftercare as directed and approved by [his]
supervising probation officer .” The district court also prohibited appellant from using
alcohol or non-prescribed mood-altering drugs.
Appellant entered outpatient sex -offender treatment at Alpha Human Services
(Alpha) in March 2011. In July 2016, probation filed a violation report alleging that
appellant committed two probation violations by failing to remain law -abiding and by
failing to abstain from alcohol. Alpha discharged a ppellant from sex-offender treatment
two weeks later. In August 2016, probation filed an addendum to the probation violation

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report adding two new violations for failing to successfully complete court -ordered sex-
offender treatment and for failing to inform probation of his significant relationships.
In October 2016, the state sought to revoke appellant’s probation. The district court
held a probation-violation hearing, at which appellant admitted to all four violations. The
district court determined that appellant violated probation and ordered him to serve 365
days in jail, complete chemical -dependency treatment, and continue probation under the
same terms and conditions . Alpha agreed to take appellant back into the program at a
higher level of care. In 2017, the district court issued an amended sentence releas ing
appellant from jail with instructions to turn himself in to Alpha.
In February 2018, probation filed a second violation report alleging that appellant
failed to successfully complete sex -offender treatment at Alpha . Alpha termin ated
appellant from the treatment program because of his “failure to make adequate progress.”
Appellant’s probation officer recommended that the district court revoke appellant’s stay
and execute his sentence.
The district court held a revocation hearing in July 2018. Appellant’s probation
officer testified that appellant violated his condition to successfully complete sex-offender
treatment. The probation officer described appellant’s progress in treatment as “painfully
slow,” and noted that he continued to blame others for his sexual offenses. The probation
officer testified that appellant “struggled to make any progress” after he returned to Alpha
following the first revocation hearing, and refused to complete his assignments in
treatment. The probation officer testified that, in her professional opinion, appellant was
not amenable to treatment in the community.

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Appellant called a witness to testify that he was an appropriate candidate for
treatment in the community. After Alpha terminated appellant, Skipped Parts LLC
completed a risk assessment for him. Skipped Parts is a private practice that operates on
an outpatient basis and provides assessments for adults who have engaged in sexual -
offending behavior. One of the owners of Skipped Parts testified that she completed a risk
assessment on appellant and believed he was at a low - to moderate -level risk of
reoffending.
Following the hearing, the district court vacated appellant’s stay of execution and
committed him to the commissioner of corrections for the rest of his sentence. The district
court determined that appellant violated the conditions of his probation, that his violations
were intentional and inexcusable, and that the need for confinement outweighed the
policies favoring probation. Appellant filed a motion for a downward durational departure.
The district court denied the motion, keeping in place the 144-month prison sentence.
In January 2020, appellant filed a postconviction petition arguing that the district
court abused its discretion by revoking probation and executing his prison sentence. The
district court denied the petition and held that appellant’s claims were procedurally barred
and failed on the merits.
This appeal follows.
D E C I S I O N
Minnesota’s postconviction statute allows a person convicted of a crime to petition
the court for relief when the sentence “violate[s] the person’s rights under the Constitution
or laws of the United States or of the state.” Minn. Stat. § 590.01, subd. 1 (2018). A district

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court must grant a hearing on a petition for postconviction relief “[u]nless the petition and
the files and records of the proceeding conclusively show that the petitioner is entitled to
no relief.” Minn. Stat. § 590.04, subd. 1 (2018). We review the denial of a petition for
postconviction relief for an abuse of discretion. Andersen v. State, 913 N.W.2d 417, 422
(Minn. 2018). “A postconviction court abuses its discretion when its decision is based on
an erroneous view of the law or is against logic and the facts in the record, or exercises its
discretion in an arbitrary or capricious manner.” Crow v. State, 923 N.W.2d 2, 9 (Minn.
2019) (quotation omitted).
Appellant argues that the district court abused its discretion by revoking probation .
Before revoking 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). “The purpose of probation is rehabilitation
and revocation should be used only as a last resort when treatment has failed.” Id. “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.” Id. at
249-50. Whether the district court made the required findings to revoke probation is a
question of law, which we review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn.
2005).
Here, a ppellant does not challenge the first Austin factor and concedes that the
district court properly designated the specific conditions that appellant violated. Appellant
challenges only the second and third Austin-factor findings, arguing that his violations were

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not intentional or inexcusable, and the need to confine him does not outweigh the policies
favoring probation.
I. Appellant’s probation violations were intentional and inexcusable.
Appellant argues that the record does not support the district court’s finding that the
violations were intentional and inexcusable under the second Austin factor. We disagree.
The district court determined that appellant “failed to complete his assignments.” The
district court noted that “[appellant] clearly did not want to be in residential treatment, so
he declined to participate in the treatment. Even after [being] warned he would be
terminated if he failed to make progress, [he] continued his refusal to do the treatment
work.”
The record supports the district court’s determination. The district court made its
findings in the context of appellant’s probation violations. Probation filed the first
violation report in July 2016, alleging that appellant fail ed to remain law -abiding and
abstain from alcohol. Alpha discharged appellant from treatment two weeks later due to
the “lack of insight and significant thinking errors” displayed by these violations.
Probation later filed an addendum to the probation violation report , adding two new
violations for failing to successfully complete court-ordered sex-offender treatment and for
failing to inform probation of his significant relationships. Appellant admitted to all four
violations, and Alpha agreed to take appellant back into the program at a higher level of
care. In February 2018, probation filed a second violation report alleging that appellant
failed to successfully compl ete sex-offender treatment. Alpha terminated appellant from

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sex-offender treatment a second time for failing to “make adequate progress.” Appellant
failed to successfully complete his treatment as of the second probation violation hearing.
Appellant argu es that the district court improperly relied on hearsay evidence
because the probation officer testified about statements appellant made to Alpha’s staff.
But the rules of evidence do not preclude the admission of hearsay evidence in probation
revocation proceedings. Minn. R. Evid. 1101(b)(3). “[W]hen the defendant has had ample
opportunity to present evidence in a probation revocation proceeding, the rules of evidence
do not preclude admission of hearsay evidence.” State v. Johnson, 679 N.W.2d 169, 174
(Minn. App. 2004). “Affording the defendant the opportunity to present evidence ensures
that the defendant can expose potential flaws in the evidence.” Id. Thus, “[t]he reliability
of the hearsay evidence will be weighed against other evidence and the risk of relying on
untrustworthy hearsay evidence will be greatly minimized.” Id.
Here, appellant had a chance to present evidence and cross -examine the state’s
witnesses, including his probation offic er. Appellant also called a witness from Skipped
Parts to testify that he was at a low - to moderate-level risk of reoffending, to counter his
probation officer’s testimony. The district court found the probation officer more credible
than appellant’s witness, based on Alpha’s method of scoring and Alpha’s “extensive
work” with appellant. We defer to these credibility findings. See State v. Dickerson, 481
N.W.2d 840, 843 (Minn. 1992) (recognizing that “credibility of witnesses and the weight
to be given their testimony are determinations to be made by the factfinder” and district
court’s credibility determinations are “accord[ed] great deference” (quotation omitted)).
We conclude that the district court did not improperly consider hearsay testimony.

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Appellant also argues that his violations were not intentional or inexcusable because
he was making progress in treatment. This argument is not persuasive. The district court
ordered appellant to complete treatment, not merely to attend treatment. And we have
previously affirmed the revocation of probation based on a probationer’s failure to
complete the required treatment program. See State v. Rock , 380 N.W.2d 211, 212 -13
(Minn. App. 1986) (affirming revocation when probationer 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 probationer was discharged from o ne
treatment program and not accepted into another).
The probation officer testified that appellant failed to complete even the first part of
Alpha’s treatment regimen in over six months in the program. The district court received
evidence from Alpha that appellant’s “avoidance in making the changes necessary to live
as a safe member of society [is] also problematic and [has] made it exceptionally difficult
for Alpha’s staff to treat him.” The probation officer stated that in her expert opinion,
appellant remained a risk to the community and was not a suitable candidate for
probationary treatment. The district court found the witness’s testimony credible, and we
defer to those credibility determinations. We conclude that the district court did not abuse
its discretion by determining that appellant intentionally and inexcusably failed to complete
treatment.
II. The need for confinement outweighs the policies favoring probation.
The district court determined that the need for confinement outweighed the policies
favoring probation under the third Austin factor. When evaluating this factor, the district

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court must “balance the probationer’s interest in freedom and the state’s interest in insuring
his rehabilitation and the public safety.” Modtland, 695 N.W.2d at 607 (quotation omitted).
The district court considers 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.” Id. (quotation
omitted). Only one sub factor is necessary to support revocation. See Goldman v.
Greenwood, 748 N.W.2d 279, 283 (Minn. 2008) (recognizing that “we normally interpret
the conjunction ‘or’ as disjunctive rather than conjunctive”). The district court found that
all three subfactors supported revocation. The record supports these findings.
As for the first subfactor, appellant’s confinement is necessary to protect the public
from further criminal activity by appellant. Appellant’s probation officer stated in the 2018
violation report that “[a]s an untreated sex offender, this defendant is a risk to public
safety.” The probation officer testified at the hearing that she was “concerned about public
safety” and appellant’s risk of reoffending because he “lacks so much insight into his own
arousal pattern [and] sexual interest.” The district court credited this evidence, and we
defer to those credibility determinations. The record supports the district court’s finding
that confinement is necessary to protect the public.
As for the second subfactor, the record establishes that appellant needs correctional
treatment. Appellant had multiple opportunities to complete programming in outpatient
and inpatient settings at A lpha. Alpha discharged appellant tw ice for his refusal to
participate in treatment. The probation officer testified that she did not believe appellant

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was amenable to treatment in the community: “after the attempts were made for many,
many years in an outpatient treatment program, and then he was given [a] subsequent
opportunity to do the highest level of care, which would be in a residential program, that
was unsuccessful.” And while Skipped Parts was willing to work with appellant, the
district court noted that Skipped Parts “is not a correction treatment program.” The record
supports the district court’s finding that appellant failed to succeed in treatment in the
community, and that confinement is necessary.
As for the third subfactor, declining to revoke probation would unduly depreciate
the seriousness of appellant’s violations. The state afforded appellant “two distinct chances
to complete the one affirmative requirement of his probation” in the community. After his
first violation report in 2016, the district court warned appellant that he had one “last
chance” to complete his sex -offender treatment at a higher level of care in a residential
setting. Appellant did not complete his treatment with Alpha and was terminated from the
program in 2018 for failing to make progress. Appellant argues that the district court could
have imposed other alternatives to executing the sentence, such as local jail time or
community supervision, to convey the seriousness of the violation. But the district court
did not have to provide appellant with additional opportunities to seek outpatient treatment
before revoking his probation. See State v. Osborne , 732 N.W.2d 249, 255 -56 (Minn.
2007) (concluding that district court di d not abuse its discretion by revoking defendant’s
probation without allowing defendant to seek more probationary resources).
The district court determined that the need for confinement outweighs the policies
favoring probation under the third Austin factor. Because sufficient evidence in the record

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supports the district court’s factual findings , we conclude that the district court did not
abuse its discretion when it revoked appellant’s probation and executed his sentence. As a
result, the district court did not abuse its discretion by denying his petition for
postconviction relief on the merits.1
Affirmed.

1 Because we conclude that the district court did not abuse its discretion by denying the
petition on the merits, we do not reach appellant’s argument that his petition was proper
under State v. Knaffla, 243 N.W.2d 737 (Minn. 1976).