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This opinion is nonprecedential except as provided by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
A20-1420

State of Minnesota,
Respondent,

vs.

Joseph Harold Specht,
Appellant.

Filed August 23, 2021
Affirmed; motion granted
Johnson, Judge

Lac Qui Parle County District Court
File No. 37-CR-17-153

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

Richard G. Stulz, Lac Qui Parle County Attorney, Madison, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2017, Joseph Harold Specht was convicted of second -degree criminal sexual
conduct. The district court imposed a prison sentence but stayed execution of the sentence
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and placed Specht on probation. In 2020, Specht’s probation agent alleged that he had
violated conditions of his probation. After a hearing, the district court found that Specht
committed four violations and, as a consequence, revoked his probation and executed his
sentence. We affirm.
FACTS
In July 2017, the state charged Specht with second -degree criminal sexual conduct,
in violation of Minn. Stat. § 609.343, subd. 1(a) (2016). The complaint alleged that Specht
touched the genital area of a 10-year-old friend of his daughter during a sleepover at
Specht’s home . In November 2017, Specht pleaded guilty pursuant to State ex rel.
Norgaard v. Tahash , 110 N.W.2d 867 (Minn. 1961), based on his statement that he was
intoxicated at the time of the incident . The district court imposed a sentence of 36 months
of imprisonment but stayed execution of the sentence for 20 years, ordered Specht to serve
120 days in jail, and placed him on probation, with conditions.
In July 2020 , Specht’s probation agent alleged that Specht had committed three
violations of the conditions of his probation. Specifically, the probation agent alleged that
Specht failed to complete a sex -offender treatment program , accessed and possessed
pornography, and failed to disclose all of his internet-accessible electronic devices. Using
monitoring software installed on Specht’s cell phone, the agent fo und more than 80
photographs of Specht’s genitalia, chest, and a sex toy, as well as sex-related text messages
from Specht to his wife. The agent also found two photo graphs of Specht’s daughter that
were pointed toward her groin area, which was clothed . The agent also found several
photographs and a video -recording of his three minor children and two minor nieces at a
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public pool, with other children in the background , which indicated that Specht had had
unsupervised contact with minors.
That same month, Specht was terminated from an outpatient sex-offender treatment
program. Specht’s treatment provider terminated his treatment because he had been
“engaging in hypersexual, high -risk behavior, which he has been withholding from
treatment,” and because his “unhealthy behavior, secret -keeping and ‘double life’ parallel
his pattern of sexual offending, and place him at an increased risk to the community. ”
Specht’s treatment provider stated that Specht “does not seem to possess the internal
motivation to change at the present time” but could resume treatment after receiving
“behavioral consequences.”
The district court conducted a revocation hearing in late July 2020. The probation
agent testified about each of the alleged violations. Specht admitted that he had not
completed sex-offender treatment but denied the other alleged violations. After the
hearing, the district court filed a n order in which it found that Specht intentionally and
inexcusably violated the conditions of his probation in four ways: “[1] by failing to
complete the sex-offender treatment program, [2] by possessing pornographic mat erial on
his phone, [3] by having unsupervised contact with juvenile females, and [4] by using his
daughter’s smart phone to access the internet.”
The district court conducted a dispositional hearing in August 2020 . T he district
court orally found that “the need for confinement outweigh s the policies favoring
probation.” The district court revoked Specht’s probation and executed his sentence.
Specht appeals.
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DECISION
Specht argues that the district court erred by revoking his probation. H is argument
has two main parts. He first challenges two of the district court’s four findings of violations
of probation conditions. He then challenges the district court’s decision to revoke his
probation based on the premise that only two of the violations are valid.
If a probationer violat es one or more conditions of probation, a district court may
either continue the probationer on probation or revoke probation and execute the
underlying sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v). The supreme court
has prescribed a three-step analysis for deciding whether to revoke probation. A revocation
is proper only if a district court (1) designates the specific conditions of probation that have
been violated, (2) finds that the violations were “intentional or inexcusable,” and (3) finds
“that need for confinement outweighs the policies favoring probation.” State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980); see also State v. Modtland, 695 N.W.2d 602, 606 (Minn.
2005). In making these findings, district courts “must seek to convey their substantive
reasons for revocation and the evidence relied upon.” Modtland, 695 N.W.2d at 608. “The
trial court has broad discretion in determining if there is sufficient evidence to re voke
probation and should be reversed only if there is a clear abuse of that discretion.” Austin,
295 N.W.2d at 249-50.
A. Findings of Violations
Specht first argues that the district court erred by finding that he committed two of
the four probation violations identified by the district court. Specifically, he challenges the
second and third violations. H e does not challenge the first and fourth violations.
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1. Second Violation: Possession of Pornography
The district court imposed a condition that Spech t “ not access or possess
pornography.” T he district court found that Specht violated that condition “by possessing
pornographic material on his phone.” Specht argues that the condition is unconstitutional
as applied to his sharing photographs of himself with his wife.
In response, the state argues that Specht did not preserve this argument by
presenting it to the district court at the revocation hearing. The state is correct. Specht did
not make a constitutional argument to the district court. Instead, Specht argued simply that
the photographs of himself did not constitute pornography. “It is an elementary principle
of appellate procedure that a party may not raise an issue or argument for the first time on
appeal and thereby seek appellate rel ief on an issue that was not litigated in the district
court.” Doe 175 ex. rel. Doe 175 v. Columbia Heights Sch. Dist. No. 13, 842 N.W.2d 38,
42 (Minn. App. 2014) (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)). “[I]f an
appellant fails to pre serve an argument or issue in district court proceedings, the issue or
argument is forfeited and may not be asserted in an appellate court.” Id. at 43. The
preservation-or-forfeiture rule applies at a probation -revocation proceeding. State v.
Beaulieu, 859 N.W.2d 275, 278-79 (Minn. 2015). Specht forfeited his constitutional
challenge to the probation condition that prohibited him from possessing the photographs
that were found on his cell phone .
In his reply brief, Specht argues in the alternative that this court should apply the
plain-error rule to his constitutional argument s. See Minn. R. Crim. P. 31.02 . The plain -
error rule may apply to a probation-revocation proceeding. Beaulieu, 859 N.W.2d at 279.
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But t he state moved to strike the part of Specht’s reply brief that argues for plain-error
review. The state contends that Specht’s plain-error argument should not be considered
because it was raised for the first time in a reply brief, which effectively prevents the state
from responding to Specht’s constitutional arguments.
Under the rules of appellate procedure, a reply brief must be confined to new matters
raised in the respondent ’s brief. Minn. R. Civ. App. P. 128.02, subd. 3. If an argument is
not raised in an appellant’s principal brief and is raised for the first time in the reply brief,
appellate courts will not consider the issue. Moorhead Econ. Dev. Auth. v. Anda , 789
N.W.2d 860, 887 (Minn. 2010); State v. Yang, 774 N.W.2d 539, 558 (Minn. 2009); Hunter
v. Anchor Bank, N.A. , 842 N.W.2d 10, 17 (Minn. App. 2013), review denied (Minn. Mar.
18, 2014). In this case, Specht could have raised the plain-error rule in his principal brief.
Doing so would have given the state a n opportunity to present responsive arguments on
Specht’s various constitutional theories and on each of the four requirements of the plain -
error test. In the absence of any mention of plain -error review, t he state reasonably
refrained from arguing the merits of Specht’s constitution al arguments in its responsive
brief. For this court to apply the plain-error test to Specht’s constitutional arguments would
be unfair to the state because the state has not been heard on those issues , either in the
district court or in this court . Accordingly, we grant the state’s motion to strike Specht’s
plain-error argument from his reply brief.
Specht argues further in the alternative in his reply brief that, if this court does not
analyze his constitutional arguments under the plain-error rule, the court should “construe
them as a challenge to the sufficiency of the evidence and conclude that the evidence fails
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to establish a probation violation.” This argument is contrary to the principle that an
appellant may not make an argument for reversal in a reply brief that was not included in
the principal brief. See Hunter, 842 N.W.2d at 17. Specht could have made a sufficiency-
of-the-evidence argument in his principal brief, but he did not do so. To construe Specht’s
principal brief to have raised a challenge to the sufficiency of the evidence would be unfair
to the state, which justifiably did not perceive such an argument in Specht’s principal brief
and, thus, did not respond to such an argument. Furthermore, the construction urged by
Specht is not a reasonable construction of the first part of Specht’s principal brief.
Accordingly, we decline Specht’s request to construe his principal brief in that manner.
Thus, because all of Specht’s arguments are not properly raised, we conclude that
the district court did not err by finding that Specht violated a cond ition of his probation by
possessing pornography on his cell phone.
2. Third Violation: Unsupervised Contact wi th Minors
The district court imposed a condition that Specht have “no unsupervised contact
with unrelated female minors.” The district court found that Specht violated that condition
“by having unsupervised contact with juvenile females.” The district co urt’s finding is
based on Specht’s statements ; the photographs on Specht’s cell phone indicating that he
was at a public pool with his children, his sister’s children, and other children ; and on the
probation agent’s testimony about th e photographs and the restrictions that were imposed
on Specht.
Specht argues that he did not violate the condition because his nieces are not
“unrelated” to him. Specht’s probation agent testified that , based on her review of the
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photographs found on Specht’s cell phone, Specht was at a public pool with his own
children and his nieces as well as other children who are not related to him. The
photographs were introduced into evidence as exhibits, and they are c onsistent with th e
probation agent’s testimony. Specht’s argument ignores the evidence that children other
than his own children and his sister’s children were present at the public pool when he was
present there.
Thus, the district court did not err by finding that Specht violated a condition of his
probation by having unsupervised contact with unrelated female minors at a public pool.
B. Revocation of Probation

Specht next argues that the district court erred by revok ing his probation as a
sanction for his violations of probation conditions.
Specht challenges the district court’s determination at the third step of the Austin
analysis that the need for confinement outweighs the policies favoring probation. See
Austin, 295 N.W.2d at 250. A district court may find that the third Austin factor is satisfied
if it finds that any of three sub -factors are present: (1) confinement is needed to “‘protect
the public from further criminal activity by the offender,’ ” (2) confinement is necessary to
provide treatment, or (3) a furthe r stay of the sentence “‘would unduly depreciate the
seriousness of the violation.’” Id. at 251 (quoting A.B.A. Standards for Criminal Justice,
Probation § 5.1(a) (Approved Draft 1970)). This court applies an abuse -of-discretion
standard of review to a district court’s decision to revoke probation. Id. at 249-50.
The district court found that all three sub-factors support revocation . With respect
to the first sub-factor, the district court found that confinement is necessary to protect the
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public. The district court determined that, after Specht’s first sex offense, he was given
multiple opportunities for sex -offender treatment but did not complete the treatment
program. The district court noted that Specht was given another chance to complete sex-
offender treatment after his second offense but did not make progress. The record supports
the district court’s analysis. Specht’s sex-offender therapist terminated Specht’s treatment
because he had engaged in “hypersexual high risk behavior” by taking graphic photographs
of himself, which the therapist described as “a secret double life that parallels his sex
offending behavior.” The district court also stated that Specht’s confinement is necessary
to protect his family in light of the photographs he took of his daughter’s groin area, which
the district court described as “very disturbing.” The photographic exhibits support the
district court’s concerns.
With respect to the second sub -factor, the district court found that Specht needs
treatment that can be provided most effectively in prison. The district court found that
Specht demonstrated “either an unwillingness or an inability to complete a program on the
outside.” The record sup ports the district court’s finding. As noted , Specht was given
multiple opportunities to complete a sex-offender treatment program but was unable to do
so. Specht received outpatient sex -offender treatment for two years but still was in the
primary porti on of treatment. Specht’s probation agent testified that she was concerned
about Specht’s behavior because it was recent, despite his familiarity with treatment.
Specht’s treatment provider testified that Specht “does not seem to possess the internal
motivation to change at the present time, and he would benefit from an external motivator,
such as behavioral consequences.”
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With respect to the third sub -factor, the district court found that it would unduly
depreciate the seriousness of the violations if Specht’s probation were not revoked. The
district court described Specht’s violations as “very serious.” Specht’s treatment provider
described his behav ior as “hypersexual” and “high risk.” Specht’s probation agent
similarly described his behavior as “escalating” and stated that his lack of treatment places
him at “an increased risk to the community.” The facts in the record support the conclusion
by the district court that continued probation would unduly depreciate the seriousness of
the violation.
In sum, the district court did not err by revoking Specht’s probation and executing
his prison sentence in response to his four violations of the probation conditions.
Affirmed; motion granted.