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This opinion is nonprecedential except as provided by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
A20-0900

State of Minnesota,
Respondent,

vs.

David Devon Bryant,
Appellant.

Filed March 1, 2021
Affirmed
Reyes, Judge

Steele County District Court
File No. 74-CR-18-1619

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

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from an order revoking his probation, appellant argues that the district
court (1) abused its discretion by finding that failing to revoke appellant’s probation would

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unduly depreciate the seriousness of his violations and (2) erred by failing to explicitly find
that the need for confinement outweighs the policies favoring probation. We affirm.
FACTS
During a disagreement with S.W. at S.W.’s house, appellant David Devon Bryant
pushed S.W. up against a garage and held a box cutter to S.W.’s neck. While at S.W.’s
house, appellant also violated a harassment restraining order (HRO) by coming into contact
with his ex -girlfriend M.B. and being near her home. Respondent State of Minnesota
charged appellant with second-degree assault with a dangerous weapon under Minn. Stat.
§ 609.222, subd. 1 (2018), and felony violation of an HRO under Minn. Stat. § 609.748,
subd. 6(d)(1) (2018).
Appellant pleaded guilty to fifth-degree assault under Minn. Stat. § 609.224, subd.
4(b) (2018), and the HRO-violation charge. Consistent with the plea agreement, appellant
sought a downward dispositional departure to probation while the state sought a bottom -
of-the-box sentence on each charge at the sentencing hearing . The district court granted
the downward dispositional departure by sentencing appellant to five years of probation
and staying execution of concurrent 28-month and 32-month sentences on the two charges.
The conditions of probation relevant to this case include that appellant must (1) maintain
contact with his probation officer as directed; (2) complete the Park Avenue Center
chemical-health aftercare program , where he had already completed inpatient and
outpatient treatment programs; (3) enter a dialectical behavioral therapy (DBT) program;
and (4) sign information releases for each treatment provider to allow probation access to
records.

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On October 14, 2019, appellant’s probation officer filed a probation-violation report
indicating that appellant failed to (1) maintain contact with probation ; (2) complete the
Park Avenue aftercare program ; (3) enter a DBT program; and (4) sign information
releases. The district court issued a warrant for appellant’s arrest. Appellant tried to
negotiate dismissing the warrant with his probation officer, but she told him to turn himself
in. Instead, appellant went to Iowa and stopped contacting his probation officer. In Iowa,
appellant was arrested for public intoxication. Appellant signed a waiver of extradition
and returned to Minnesota around February 17, 2020.
At the initial probation-violation hearing, appellant proceeded pro se and entered a
denial. At the contested -revocation hearing, appellant’s probation officer testified that ,
although appellant made some phone contact with her, he missed all in -person
appointments, and failed to contact her at all from October 2019 t o February 2020 . She
also testified that Park Avenue discharged him because of absences and that she never
received evidence of appellant entering a DBT program. Appellant argued that he missed
appointments because of mental-health and physical-health issues and timing conflicts with
employment, other appointments, and transportation.
The district court found that (1) appellant violated the terms of his probation by
failing to maintain contact with his probation officer, complete the Park Avenue aftercare
program, begin a DBT program , and sign information releases ; (2) the violations were
intentional and inexcusable; and (3) it would unduly depreciate the seriousness of
appellant’s violation s if probation were not revoked. It therefo re revoked appellant ’s

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probation and executed his concurrent 28 -month and 32 -month sentences. This appeal
follows.
DECISION
“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). But we review de
novo whether a district court made the requisite findings to revoke probation. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005). We review the district court’s findings of
fact for clear error. Erickson v. State, 702 N.W.2d 892, 895 (Minn. App. 2005).
Before revoking probation, the district court must “(1) designate the specific
condition or conditions that were violated; (2) find the violation was intentional or
inexcusable; and (3) find that need for confinement outweighs the policies favoring
probation” (the Austin factors). Austin, 295 N.W.2d at 250. The district court’s decision
to revoke probation cannot be a “reflexive r eaction to an accum ulation of technical
violations” but rather must show that the “offender’s behavior demonstrates that
he . . . cannot be counted on to avoid antisocial activity.” Austin, 295 N.W.2d at 251
(quoting United States v. Reed, 573 F.2d 1020, 1024 (8th Cir. 1978)).
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” (the Modtland

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subfactors). 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. The district court may also consider a prior “grant
of a downward dispositional departure when deciding whether to revoke probation.” State
v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (citing Minn. Sent. Guidelines 3.B
(2012) (stating that the district court may give “[l]ess judicial tolerance” for offenders
convicted of more severe offenses)) (other citation omitted), aff’d, 883 N.W.2d 790 (Minn.
2016).
I. The district court did not abuse its discretion by revoking appellant’s
probation.

Appellant argues that the district court implicitly found that appellant did not meet
the second Modtland subfactor and that the evidence does not support the district court’s
finding that he met the third Modtland subfactor. We disagree.
We need not decide whether the district court implicitly found that appellant did not
meet the second Modtland subfactor because we conclude that the district court did not
abuse its discretion by finding that he met the third Modtland subfactor. In so finding, the
district court emphasized that appellant obtained a downward dispositional departure
despite a serious original offense. It noted that appellant required oversight through
probation, which he avoided, and left Minnesota after learning of the warrant for his arrest.
The district court expressed concern that appellant would exhibit similar disregard for hi s
probation conditions if it reinstated probation.

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Appellant argues that these were his first probation violations, that he maintained
phone contact with his probation officer, and that he attended eight of 12 meetings for his
aftercare program. And throughout probation, he struggled with mental -health and
physical-health issues, homelessness, lack of transportation, employment demands, and the
deaths of four friends and family members.
While appellant’s arguments are sympathetic, and it is true t hat this is his first
probation violation, the record also shows that he failed to attend a single in-person meeting
with his probation officer and did not provide notice or reason for his absence on at least
three occasions. Park Avenue discharged him fr om the aftercare program because of
absences, and the record reveals no evidence of appellant’s participation in other therapy
or a DBT program. Finally, when he learned of the warrant, appellant fled Minnesota and
did not contact his probation officer for approximately four months. These violations were
serious, and given the district court’s concern that appellant would repeat this behavior if
again placed on probation, it did not err by finding that appellant met the third Modtland
subfactor.
Appellant argues that the district court could have imposed intermediate sanctions,
such as ordering additional jail time or mental -health programming. He cites State v.
Cottew, in which the supreme court noted that intermediate sanctions are appropriate when
a defendant violates probation but rehabilitation is still possible. 746 N.W.2d 632, 637
(Minn. 2008).
Here, after discharging appellant in June 2019 because of absences, Park Avenue
allowed him a second opportunity to participate in its aftercare program. But it again

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discharged him because of absences in October 2019. He also had a therapist but failed to
provide releases of information so that probation could track compliance . He repeatedly
missed appointments without excuse and absconded from probation. This case is similar
to Austin, in which the supreme court noted that “appellant has been offered treatment but
has failed to take advantage of the opportunity or to show a commitment to rehabilitation.”
Austin, 295 N.W.2d at 251. We conclude that the district court did not abuse its discretion
by revoking appellant’s probation.
II. The district court did not err by failing to explicitly state that the need for
confinement outweighs the policies favoring probation.

Appellant argues that the district court committed reversible error by failing to
explicitly find that he met the third Austin factor. Appellant’s argument is misguided.
In Modtland, the supreme court stated that mere recitation of the Austin factors is
insufficient. 695 N.W.2d at 608. Instead, the district court must make factual findings to
ensure that it “create[s] [a] thorough, fact -specific record[]” and “convey [s] [its]
substantive reasons for revocation.” Id. Here, the district court made extensive findin gs
of fact specifically on the Modtland subfactors, which are considerations under the third
Austin factor. In doing so, it conveyed its substantive reasons for revocation and therefore
satisfied its duty to address the third Austin factor.
Appellant relies on State v. Hill for his argument. No. A19-0313, 2019 WL 5107465
(Minn. App. Oct. 14, 2019). In Hill, we reversed the district court’s order revoking
probation because it s findings did “not adequately address the third [ Austin] factor” and

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because “[c]aselaw is clear that district courts must explicitly make the three required
findings before revoking probation.” Id. at *5 (citing Modtland, 695 N.W.2d at 608).
Appellant’s reliance on Hill is misguided for three reasons . First, Hill is only
persuasive because it is a nonprecedential decision of this court. Minn. R. Civ. App. P.
136.01, subd. 1(c). Second, as discussed above, the district court conveyed its substantive
reasons for revoking probation. Modtland, 695 N.W.2d at 608. Third, Hill is
distinguishable. In Hill, the district court’s findings on all three Austin factors amounted
to just four sentences. Hill, 2019 WL 5107565, at *5 . In contrast, here, following an
extensive discussion of the evidence spanning approximately six transcript pag es, the
district court explicitly found that the first and second Austin factors were met . And
following approximately four pages of discussion on the Modtland subfactors that relate to
the third Austin factor, the district court found that appellant met the third Modtland
subfactor. We therefore conclude that the district court did not err by failing to recite
explicitly the language of the third Austin factor in finding that factor met.
Affirmed.