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This opinion is nonprecedential except as provided by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
A21-0291

State of Minnesota,
Respondent,

vs.

M.N.M,
Appellant.

Filed November 22, 2021
Affirmed; motion denied
Reilly, Judge

Hennepin County District Court
File Nos. 27-JV-20-1315, 27-CR-21-1167

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reilly, Judge; and Jesson, Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant argues that the district court abused its discretion by revoking her
extended jurisdiction juvenile status and executing her stayed sentence for first -degree
aggravated robbery . Appellant also argues that the district court violated her equal -
protection rights. Because the district court did not abuse its discretion when it revoked
2
her extended jurisdiction juvenile status and execut ed the stayed sentence, and because
appellant failed to support her equal-protection argument, we affirm. Based on this ruling,
we deny respondent’s motion to strike portions of appellant’s reply brief as moot.
FACTS
In March 2020, the victim gave his friend, appellant M.N.M., a ride to her home.
Upon arriving at appellant’s home, at least three people confronted the victim and took his
belongings, including his car keys . One person held an axe to the victim’s neck , and
another pointed a gun at him. Appellant and two other people took the victim’s car. The
victim later identified appellant as one of the people who robbed him.
Respondent State of Minnesota filed a juvenile delinquency petition against
appellant. The petition alleged that appellant committed first -degree aggravated robbery
by conspiring with others to take personal property from the victim by threatening the use
of force. Appellant was 17 years old at the time of the offense, and the state filed a motion
for adult certification and a notice of intent to prosecute. A ppellant agreed to admit to
committing the crime, and the state agreed that appellant could be designated as an
extended jurisdiction juvenile (EJJ).1 Appellant waived her right to a certification hearing
and admitted facts showing that she committed the offense.

1 “An EJJ prosecution is a blending of juvenile and adult criminal dispositions that extends
jurisdiction over a young person to age twenty-one and permits the court to impose both a
juvenile disposition and a criminal sentence.” State v. J.E.S., 763 N.W.2d 64, 67 (Minn.
App. 2009) (quotation omitted). In an EJJ case, the district court imposes an adult sentence
but stays the sentence “so long as the offender does not violate the provisions of the juvenile
disposition and does not commit a new offense.” Id.
3
The district court adjudicated appellant delinquent and placed her on supervised EJJ
probation until September 2023. The district court placed appellant at Woodland Hills for
inpatient treatment and imposed a stayed sentence of 58 months. The district court advised
appellant that she was considered an adult because she was over 18 at the time of the
hearing, and that the “prison sentence is going to be hanging out there.” The district court
told appellant that “if [she] couldn’t make this probation work, [she was] going to Shakopee
[prison] for 58 months.”2
Appellant began her treatment at Woodland Hills in September 2020. Two months
later, Woodland Hills terminated a ppellant’s placement for fail ing to complete the
program. The termination report reflected that there were 13 “serious incidents” in October
and November 2020 . In November 2020, the department of community corrections and
rehabilitation filed a probation violation report alleging that appellant violated the
conditions of her probation. Following a contested probation -revocation hearing , the
district court issued a determination in January 2021 finding that appellant violated the
terms of her probati on. The district court revoked appel lant’s EJJ status, executed her
stayed sentence, and committed her to the commissioner of corrections for 58 months.
This appeal follows.

2 The Minnesota Correctional Facility in Shakopee (Shakopee) is a secure facility for
female offenders.
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DECISION
I. The district court did not abuse its discretion by revoking appellant’s EJJ
status and executing her stayed prison sentence.
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 polici es favoring
probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The Austin factors apply
to the revocation of EJJ status. State v. B.Y., 659 N.W.2d 763, 768 -69 (Minn. 2003); see
also Minn. R. Juv. Delinq. P. 19.11, subd. 3(C)(1), (2). “The [district] court has broad
discretion in determining if there is sufficient evidence to revoke probation.” Austin, 295
N.W.2d at 249-50. Without a clear abuse of that discretion, we will affirm a probation
revocation order and disposition in a juvenile-delinquency case. In re Welfare of R.V., 702
N.W.2d 294, 298 (Minn. App. 2005). 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).
Appellant does not challenge the di strict court’s findings on the first Austin factor.
But appellant argues that her violations were not intentional or inexcusable, and that the
need for confinement does not outweigh the policies favoring probation.
a. Appellant’s probation violations were intentional or inexcusable.
Appellant argues that the record does not support the district court’s determination
that her probation violations were intentional or inexcusable under the second Austin factor.
To support revocation under this factor, the district court need only find that the violation
5
was intentional or inexcusable. Austin, 295 N.W.2d at 250. Here, the district court found
that appellant “failed t o successfully complete placement,” and that this violation “was
both intentional and inexcusable.” The district court found that appellant “regularly
exhibited concerning, disruptive and sometimes volatile behaviors which hindered her
progress and succes s.” The district court also found that Woodland Hills terminated
appellant from the program over “concerns regarding the safety of both [appellant] and the
other Hills clients.”
These findings are amply supported by the record. At her initial intake meet ing,
appellant met with her probation officer and Woodland Hills staff to discuss her treatment
goals and expectations. The Woodland Hills unit manager testified that appellant did well
in a one -on-one setting but displayed troubling behavior and interact ions with other
residents. The manager described appellant as “very antagonistic” toward her peers and
noted that “by the end of her stay [at Woodland Hills], she had made herself a target from
the clients on the unit here for both verbal and physical ass ault.” The manager stated that
“[a]nytime [appellant] was on the unit, she needed one-to-one staffing . . . to keep both her
and the others safe.” Appellant spent the last 10 days of her stay separated from the rest of
her peers.
The termination report also revealed that appellant did not follow the rules; ignored,
attacked, and berated the staff; incited violence among her peers; and destroyed property.
One time, appellant ran around the entire facility, “banging on doors of other units . . .
pretty late at night” and causing a disruption. This incident required Woodland Hills staff
to call the police to place appellant in restraints and return her to her own unit . Appellant
6
had 13 “serious incidents” in a 10 -week period. These incidents included phys ical and
verbal attacks against peers and staff, absence from required activities, disruptive behavior
in the facilities, and inappropriate sexual behavior with a younger peer. The Woodland
Hills program director testified that Woodland Hills ultimately t erminated appellant from
treatment following the last issue of inappropriate sexual contact.
Appellant argues that the district court’s findings were erroneous because she was
terminated from the program for factors outside her control. Specifically, appellant argues
that she was terminated based on unsubstantiated allegations of sexual assault, and that she
“has no control over allegations made by others.” 3 We are not persuaded. Appellant’s
termination was not based solely on the sexual -assault allegation. The Woodland Hills
manager testified that appellant’s “progression through the program was, at best, slow.”
Appellant succeeded in only 27 of her 69 days in treatment, and she completed none of the
goals on her treatment plan. The manager testified that appellant “burned her bridges with
her peers to such a degree on the unit that it was no longer safe for her to be here.” The
manager testified that, in his opinion, appellant was terminated from the program “due to
a need for safety and [her] being unamenable to the program after her length of stay.”

3 At the hearing, appellant’s counsel objected to testimony about the sexual assault on
hearsay grounds. “[W]hen the defendant has had ample opportunity to present evidence in
a probation revocation proceeding, the rules of evidence do not preclude admissi on of
hearsay evidence.” State v. Johnson, 679 N.W.2d 169, 174 (Minn. App. 2004); see also
Minn. R. Evid. 1101(b)(3). Here, appellant had the chance to present evidence and cross-
examine the state’s witnesses. Thus, the district court did not err by con sidering such
testimony.
7
Similarly, the Woodland Hills director testified that the sexual -assault allegations
may have been “the tipping point for [her],” but stated that “[d]efinitely there were other
incidents that occurred that were concerning.” The director testified about appellant
running through the facility at night and characterized this behavior as “a pretty major
incident.” Appellant’s counsel specifically asked the director whether appellant would still
be at Woodland Hills if the sexual -assault allegations were unproven. The director
responded:
It’s kind of hard to say, to be honest with you. She did have
some out -of-bounds behaviors that co uld have resulted in
termination but did not; like, for instance, when she and two
other clients were running around here and we had to call for
the police to help assist to get her back into her room. That
could have definitely been the grounds for termi nation, but it
wasn’t at that point in time. So if those behaviors, those types
of behaviors, would have continued, then no, we would not be;
but if they did not, then yeah, we would be.
During redirect examination, the prosecutor again asked the director if appellant would
have been terminated from the program if the sexual-assault allegations had not been made.
The witness responded, “If the behaviors —the negative behaviors continued, we would
have still terminated her, yes.”
The district court acknowledged appellant’s argument that she was discharged based
only on the sexual -assault allegations. But t he district court found that appellant “had
exhibited behaviors which could have resulted in termination if they had continued,
therefore [appellant’s] h ypothetical status at Woodland Hills absent the grievance
regarding sexual conduct is speculative.” We agree with the district court’s reasoning and
8
reject appellant’s argument that she was only terminated from the program for the sexual-
assault allegation.
There is substantial evidence that appellant failed to make progress on her treatment
plan, exhibited abusive behavior toward peers and staff, and created dangerous conditions
for herself and others. And we have repeatedly affirmed district court decisions concluding
that an individual intentionally or inexcusably violates probation by failing to complete a
required treatment program. See, e.g., State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986)
(affirming probation revocation when defendant refused to comply with treatment program
and participate in recovery), rev. denied (Minn. Feb. 13, 1987); State v. Rock, 380 N.W.2d
211, 212-13 (Minn. App. 1986) (affirming revocation when probationer failed to complete
treatment), rev. denied (Minn. Mar. 27, 1986); State v. Hemmings , 371 N.W.2d 44, 47
(Minn. App. 1985) (affirming revocation when probationer failed to complete treatment
and could not get accepted into another facility). The district court carefully weighed the
testimony presented by the witnesses and found the state’s witnesses credible. We defer
to these credibility determinations. 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” (quo tation omitted)). We therefore
conclude that the district court did not abuse its discretio n by determining that appellant’s
probation violations were intentional or inexcusable under the second Austin factor.
9
b. 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, a district
court must “balance the probationer’s interest in freedom and the state’s interest in insuring
[the probationer’s] 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 crimin al activity by the offender; or (ii) the offender is in
need of correctional treatment which can most effectively be provided if [the probationer]
is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation
were not revok ed.” Id. (quotation omitted). Only one subfactor is necessary to support
revocation. Austin, 295 N.W.2d at 251.
Here, the district court determined that the first Modtland subfactor supported
revocation. The district court stated:
[Appellant] has a len gthy criminal history. The offense for
which [she] is currently on EJJ probation is such that adult
certification is presumptive, and the certification study
strongly supported adult certification. However, [she] was
given a final chance at rehabilitatio n when the State agreed to
an EJJ designation. [Appellant] allegedly engaged in predatory
behavior demonstrating a lack of amenability to probation such
that there are no longer any placements willing or able to
accept [her]. Further, [her] alleged sexua l misconduct and
negative instigation of rule breaking at The Hills combined
with the Aggravated Robbery charge for which she is on
probation indicates a substantial risk to public safety.
The record supports these findings. Because appellant was 17 years old when she
committed the robbery offense, the crime carried a presumptive adult certification and
10
prison sentence for first-degree aggravated robbery. See Minn. Stat. § 260B.125, subd. 3
(2020) (stating that certification as an adult is presumed for a 17-year-old individual who
allegedly commits a crime that involves a “presumptive commitment to prison un der the
Sentencing Guidelines”); see also Minn. R. Juv. Delinq. P. 18.06, subd. 1 (discussing
presumption of certification).
Additionally, the certification study shows that appellant has a long criminal history
and has not been successful in other treatment programs . Appellant’s case history shows
that she had over 20 other delinquency cases between 2016 and 2019 for theft, damage to
property, fleeing police, receiving stolen property, multiple assault charges, and
trespassing. Appellant has been on supervised probati on since 2017. Appellant has been
referred to both community-based and residential interventions and programs at Hennepin
County Juvenile Probation, Northp oint Health and Wellness Clinic, The Link, Hennepin
County Home School, the YMCA, Oak Park, and Bett er Together. Appellant was
terminated from previous programs for failing to complete them . A ppellant has been
placed on electronic home monitoring eight times but failed five out of those eight times.
The probation officer noted that appellant “has struggled to complete many of her court
orders, both in the community and in residential settings.” At the time of her most recent
offense, a ppellant also had six other cases pending for theft, financial transaction card
fraud, and trespassing, among others . This record shows that previous efforts at
intervention have been unsuccessful and appellant’s record is persistent, continues to
escalate in severity of her offenses, and threatens public safety.
11
The probation officer tried to find another out-of-home placement for appellant, but
there were no providers who were willing or able to take her. One provider declined to
take any out-of-county clients, and the second provider declined to accept appellant “[d]ue
to her behaviors as well as the need for one-on-one programing, which they cannot offer.”
The probation officer testified that probation “felt that [appellant] needed a higher level of
care than community -based programing could provide.” Counsel asked the probation
officer whether, in her experience, appellant would be amenable to probation in the juvenile
system. The probation officer responded, “I think her actions thus far have proven not to
be, given her time on probation before and what has happened since she’s been placed on
EJJ.” The probation officer also agreed that appellant had “exhausted her options in the
juvenile system.” The record supports the district court’s finding that confinement is
necessary to protect the public under the first Modtland subfactor. Thus, we discern no
abuse of discretion in the district court’s decision to revoke appellant’s EJJ status based on
this subfactor.
Appellant argues that the district court could have imposed another alternative to
executing the sentence, such as inpatient programming, to address her mental-health issues.
But a district court need not provide a defendant with additional opportunities to seek
treatment before revoking probation. See, e.g., State v. Osborne, 732 N.W.2d 249, 255-56
(Minn. 2007) (concluding that district court di d not abuse its discretion by revoking
12
probation without allowing defendant to seek additional probationary resources).4 And in
this case, appellant had many opportunities for treatment, as discussed above. Thus, we
reject this argument.
The district court determined that the need for confinement outweighed the policies
favoring probation under the third Austin factor. Because sufficient evidence in the record
supports the district court’s factual findings , we determine that the district court did not
abuse its discretion by revoking appellant’s EJJ status and executing her stayed sentence.
II. We do not reach appellant’s equal-protection argument.
Appellant argues that her sentence must be reversed because the state violated her
right to equal protection under the United States and Minnesota Constitutions. Appellant
argues that she is being treated differently than a male EJJ offender because a male would
have “one last chance” to avoid an adult sentence by seeking placement at the Minnesota
Correctional Facility in Red Wing (MCF-Red Wing). MCF-Red Wing is a secure facility
operated by the department of corrections. MCF -Red Wing accepts juvenile male
offenders into the facility, provided they meet the admission criteria, but it does not accept
juvenile female offenders. The district court agreed with appellant. The district court
stated in the probation -revocation order that “Counsel for [appellant] argued an equal
protection issue exists, given the disparity in state correctional juvenile placement options
between males and females.” The district court issued an order following the disposition

4 Appellant also argues that the third Austin factor is not satisfied because the state does
not provide the same level of programming for female EJJ probationers as it does for male
EJJ probationers. We address this argument below.
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hearing and found that “[a]n equal protection issue continues to exist as to correctional
placement options for female juveniles.”
We acknowledge the district court’s concern and frustration about the varying levels
of programming available to juvenile females and juvenile males. But appellant’s counsel
did not develop the record to support an equal -protection argument. For example,
appellant’s counsel did not elicit any testimony or present any evidence related to the
admissions criteria at MCF-Red Wing, the number of juvenile males rejected for admission
to MCF -Red Wing, the varying levels of programming offered at MCF -Red Wing and
Shakopee, whether MCF -Red Wing offered one -on-one programming, the number of
juvenile males who have had their EJJ status revoked while at MCF-Red Wing, and most
importantly, whether MCF -Red Wing would have accepted appellant if she had been a
male. The tra nscript of the hearing does not contain a single reference to “equal
protection,” and only briefly mentions “fairness” in the closing argument.
Appellant bears the burden of establishing an equal-protection violation. The record
does not contain any factual support for appellant’s equal-protection argument. Reviewing
appellant’s equal-protection argument would require this court to make findings of fact on
appeal, and it is not the role of this court to do so. See In re Welfare of M.D.O., 462 N.W.2d
370, 374-75 (Minn. 1990) (recognizing that role of appellate courts is to correct errors, not
to find facts); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The function of the
court of appeals is limited to identifying errors and then correcting them.”). Because the
record does not contain any factual support for appellant’s equal -protection claim, we
cannot reach it.
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III. The state’s motion to strike is moot.
The state moved to strike a portion of appellant’s re ply brief for referencing a
document outside the record. Because we affirm the district court’s decision, we deny the
state’s motion to strike as moot.
Affirmed; motion denied.