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This opinion is nonprecedential except as provided by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
A21-1038

State of Minnesota,
Respondent,

vs.

Trejuan Dominic Miller,
Appellant.

Filed May 16, 2022
Affirmed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-17-24839

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Gaïtas, Pres iding Judge; Frisch, Judge; and Halbrooks,
Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Trejuan Dominic Miller challenges the district court’s decision to revoke
his probation. We affirm.
FACTS
In November 2017, Miller ente red into a plea agreement with respondent State of
Minnesota. He pleaded guilty to third-degree criminal sexual conduc t, admitting that he
sexually penetrated a 15-year-old girl by putting his penis in her mouth. See Minn. Stat.
§ 609.344, subd.1(b) (2016). In exchange for his plea, the state recommended a
probationary sentence, which was a downward dispositional departure from the sentencing
guidelines. The district court followed the pa rties’ plea agreement, staying execution of
the presumptive 48-mont h prison sentence, a nd placing Miller on probation for three to
five years. Among the conditi ons of probation, the district court ordered Miller to serve
six months of local jail time, to follow all state and federal laws, to complete sex-offender
treatment, and not to use or possess any firearms or ammunition.
While on probation, Miller was convicted of three new felony offenses. The first of
these offenses was felony theft from the person of another. See Minn. Stat. § 609.52, subds.
2(a)(1), 3(3)(d)(i) (2016). At the trial in that matter, the state’s evidence showed that Miller
followed a woman to a dark, isol ated street and stole her walle t in April 2018, just four
months after he was placed on probation. A jury found him guilty, and the district court
stayed execution of a 21-month prison senten ce and furloughed him to treatment. Two
weeks after starting treatment Miller absconded for over two months. During this period,
3
he failed to register as a predatory offend er and missed court appe arances. The police
finally apprehended him after a high-speed car chase spanning seven miles. In addition to
Miller, who was driving, there was a female passenger and a one-year-old child present in
the vehicle.
These events led to Miller’s second and third felony convictions while on probation.
He pleaded guilty to failure to register as a predatory offender and was sentenced to 24
months in prison. See Minn. Stat. § 243.166, subd. 5(a), (b) (2018). And he pleaded guilty
to fleeing a peace officer in a motor vehicle and was sentenced to a concurrent prison term
of 17 months. See Minn. Stat. § 609.487, subd. 3 (2018).
In addition to committing new felony offenses, Miller violated other conditions of
his probation. Between December 2017 and December 2018, his probation officer filed
three probation violation reports. The first of these reports, filed in April 2018, alleged that
Miller had been arrested for the theft-from- person offense, that he had engaged in
nonconsensual dissemination of private sexual images, that he had committed a domestic
assault, and that he had used nonprescribed medications. Given the unresolved theft-from-
person charge, the district court deferred resolution of the probation violation matter
pending disposition of that charge. Severa l months later, in August 2018, Miller’s
probation officer filed a second probation violation report alleging that Miller had
continued to use drugs while residing at a sober living house and had left his drug treatment
program. The district court again deferred resolution of the probation violation because
the theft-from-person case was st ill pending. When the distri ct court finally sentenced
Miller for the theft-from-person offense in October 2018, it opted to again defer any action
4
on the probation violations because Miller had been char ged with another new offense—
failure to register as a predatory offender. At the sentencing hear ing for the theft-from-
person conviction, the district court ordered Miller to complete drug treatment, and Miller’s
probation officer withdrew his earlier request to execute Miller’s 48-month sentence to
give Miller another chance at treatment. But less than two months later, in December 2018,
Miller’s probation officer filed a third probation violation report alleging that Miller had
failed to complete drug treatment and that he had absconded from probation. The report
also alleged that Miller had failed to register as a predatory offender.
Notwithstanding Miller’s new crimes and multiple probation violations, the district
court allowed him to remain on probation following the third violation report—even while
he served intervening prison sentences for failing to register as a predatory offender and
fleeing police in a motor vehicle. Miller ultimately admitted to violating his probation by
failing to remain law abiding. As a sanc tion, the district c ourt extended Miller’s
probationary term by five years or until he completed sex-offender treatment, whichever
came first.
In December 2020—just eight months after Miller’s release from prison for his new
convictions—his probation officer filed a fourth violation repor t. The report alleged that
Miller had again failed to remain law abidi ng, citing numerous ne w charges, including
first-degree drug sale, Minn. Stat. § 152.021, subd. 1(1) (2020), seco nd- and fifth-degree
drug possession, Minn. Stat. §§ 152.022, subd. 2(a)(1), .025, subd. 2(1) (2020), possession
of ammunition and firearms, Minn. Stat. § 6 24.713, subd. 1(2), (10)(i) (2020), and two
counts of third-degree criminal sexual c onduct, Minn. Stat. § 609.344, subd. 1(c), (d)
5
(2020). Additionally, the report alleged that Miller had failed to complete sex-offender
treatment and had possessed firearms. Miller requested a contested revocation hearing,
which was held in May 2021.
Three witnesses testified for the state at the revocation h earing. First, Miller’s
probation officer detailed Miller’s poor history of compliance on probation, including his
three prior violations, his cont inued drug use, and his repeated failure to complete sex-
offender treatment despite mu ltiple opportunities. The prob ation officer explained that
Miller was again discharged from treatment in November 2020 because he missed half of
the required sessions. Given Miller’s inability to complete sex-offender treatment on an
outpatient basis, the probation of ficer opined that there were no other outpatient options
available. Due to Miller’s chronic noncompliance with the conditions of his probation, and
his continued criminal activity, the probation officer recommended revocation of probation
and execution of the stayed prison sentence.
Next, a sheriff’s deputy testified about a search of Miller’s apartment, which
occurred while Miller was presen t. In a bedroom where Mille r appeared to be staying
officers found approximately 32 grams of cocaine; nearly 10 grams of methamphetamine;
four guns, including an assault rifle; and liv e ammunition. Officers also seized evidence
of drug sales, such as cash, digital scal es, small plastic bags, and 13 cell phones.
Subsequent DNA testing connec ted Miller to the assault ri fle. DNA evidence also
connected Miller to a fifth firearm that was seized from a storage locker rented by another
resident of the apartment.
6
The state’s final witness was a sergeant with the Minneapolis police department
who had investigated allegati ons that Miller and another su spect had sexually assaulted
two intoxicated women after accompanying th em home from a bar. According to the
sergeant, Miller’s DNA matched sperm cells found in one complainant’s vaginal swab and
in one complainant’s oral swab.
Miller also testified at the revocation hear ing. He explained that he had missed
some of his sex-offender-treatment sessions, which had been held remotely, because his
access to a phone and the intern et had been limited. Mille r expressed his willingness to
participate in sex-offender treatment going forw ard. He admitted that he resided in the
apartment where the police found the drugs and guns.
Following the hearing, the district court issued an order finding that Miller had
violated his probation by failing to complete sex-offender treatment and by possessing
firearms and ammunition. The district court concluded that the state did not satisfy its
burden of proving that Miller failed to remain law abiding by virtue of his new charges for
drug and sex offenses. But it found that he failed to remain law ab iding because he was
convicted of three crimes—theft, failure to register as a predatory offender, and fleeing
police in a motor vehicle—while on probation. The district court determined that Miller’s
violations were intentional and inexcusable and that the need for confinement outweighed
the rehabilitative policies favoring probation. Accordingly, the district court revoked
Miller’s probation, executed the previously stayed 48-month sentence, and ordered a ten-
year conditional-release period to follow the prison sentence.
Miller appeals.
7
DECISION
Before revoking a criminal defendant’s probation, a district court must address three
factors that the Minnesota Supreme Court articulated in State v. Austin, 295 N.W.2d 246
(Minn. 1980). 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.” Austin, 295 N.W.2d at
250 (Minn. 1980). The third factor requires a district court to further consider whether
“(i) confinement is necessary to protect th e public from further cr iminal 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. at 251. A district court must meaningfully
address the three Austin factors and not merely recite them or give “general, non-specific
reasons for revocation.” State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005).
Miller argues that the district court’s de cision to revoke his probation was unlawful
because the district court made de ficient findings on each of the Austin factors. Whether
the district court made the findings required to revoke probation is a question of law, which
we review de novo. Id. at 605. But a district court “has broad discretion in determining if
there is sufficient evid ence to revoke probation and should be reversed only if there is a
clear abuse of that discretion.” Austin, 295 N.W.2d at 249-50.
A. The district court did not abuse its discretion by finding that Miller’s probation
violations were established by clear and convincing evidence.

Miller first argues that the district court abused its discretion by finding sufficient
evidence of the alleged probation violations. The state must prove by clear and convincing
8
evidence that a defendant violated the terms and conditions of probation. See Minn. R.
Crim. P. 27.04, subds. 2(1)(c)(b), 3(1), (2)(b) (permitting probation revocation when a
district court finds clear and convincing ev idence of a probation violation). Here, the
district court found that the evidence established three separate violations: Miller failed to
complete sex-offender treatment, he possessed firearms and ammunition, and he failed to
remain law abiding.
1. Failure to complete sex-offender treatment.
Miller contends that the district court erred in determining that he failed to complete
sex-offender treatment because there was ad ditional time remaining in his probationary
period for him to satisfy that condition. But he cites no authority to support his claim that
the failure to comply with an affirmative probation requir ement cannot be a violation if
compliance can occur at a later time during the probationary period.
Moreover, the evidence at the revocation hearing established that the problem was
not simply a matter of timing. The discharg e report from Miller’s most recent treatment
program, which was introduced as an exhibit at the revocation hearing, stated that Miller
was terminated from treatment because he missed three of six mandatory treatment
sessions, “lacked follow through regarding treatment expectations, externalized blame for
his actions, and was avoidant of assuming personal responsi bility.” It concluded that,
“[g]iven his lack of motivation and diff iculty maintaining treatment/supervisory
expectations as an outpatient client, . . . Mill er is not amenable to outpatient treatment at
this time. As such, he remains an untreated sexual offender.”
9
The district court also found that Mille r’s probation officer “testified credibly
regarding . . . Miller’s lack of motivation to abide by probation and change his behavior.”
And the district court rejected Miller’s testimony regarding hi s inability to participate as
not credible. We must defer to the district court’s credibility determinations. See State v.
Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (r ecognizing that witness credibility and
the weight of witness testimony are matters for the factfinder, and such determinations are
given “great deference” on appeal).
Based on the record, the district court did not abuse its discretion in finding that
Miller violated his probation by failing to complete sex-offender treatment.
2. Possession of firearms and ammunition.
Miller also argues that the evidence wa s insufficient to establish by clear and
convincing evidence that he possessed firearms and ammunitio n. He contends that the
district court applied the wrong standard of proof. And he argues that the evidence did not
satisfy the proper—and more onerous—standard of proof.
Miller’s argument is primarily based on the following finding in the district court’s
order: “The evidence ties . . . Miller, by a preponderance of the evidence, to at least two
of the firearms found at his residence.” (Emphasis added.) He correctly observes that the
standard of proof for a probatio n violation is clear and conv incing evidence, and not the
lower preponderance-of-the-evidence standard. See Minn. R. Crim. P. 27.04, subds.
2(1)(c)(b), 3(1), (2)(b); State v. Cottew, 746 N.W.2d 632, 638 (Minn. 2008) (“[T]he district
court must determine whether there is clear and convincing evidence that a condition of
probation has been violated.”).
10
The district court erred by citing the wro ng standard in its order. But, for two
reasons, we are convinced that the district c ourt was aware of the standard and correctly
applied it in finding that Miller possessed fir earms and ammunition in violation of his
probation.
First, the district court repeatedly cited to the correct clear-and-convincing-evidence
standard throughout its order, including in its discussion of the firearms violation. It stated,
“The State established by clear and convinci ng evidence that . . . Miller violated his
probation when weapons and ammunition were found at his residence . . . . [He] was
specifically instructed at sentencing that, while on probation, he was prohibited from using
or possessing firearms, ammunition, or explosives.”
Second, the evidence at the probation revocation hearing amply supported a finding
that clear and convincing ev idence established Miller’s possession of firearms and
ammunition. Four guns and ammunition were found in the bedroom of Miller’s apartment
while he was present. The firearms were mos tly in plain view. At least one of them was
next to his social security ca rd. The guns were also near Miller’s gold tooth, which he
asked the police to retrieve during the search. One gun from the bedroom and another gun
from an associated storage locker containe d a mixture of DNA that included Miller’s
DNA.1

1 The DNA analysis report notes that a thir d gun was tested but did not contain a DNA
profile that met the minimum criteria for inte rpretation. DNA test results on a fourth
firearm were not available at the hearing b ecause the gun had been sent to a different
laboratory for analysis.
11
We also reject Miller’s argument that th e more stringent circ umstantial-evidence
standard of review, which an appellate court applies in reviewing the sufficiency of the
evidence underlying a conviction based on circumstantial evidence, applies in this context.
There is no authority for this proposition. And we note that a criminal trial and a probation
revocation hearing are not analogous proceedings. The state bears a higher burden of proof
to obtain a conviction. See State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017) (applying
circumstantial-evidence standard of revi ew to consider whet her state’s evidence
established defendant’s guilt beyond a reasonable doubt).
The record supports the district court’s finding that there was clear and convincing
evidence that Miller possessed firearms and ammu nition. Thus, the di strict court did not
abuse its discretion by determining that Miller violated this condition of his probation.
3. Failure to remain law abiding.

Finally, Miller argues that the district cour t abused its discretion by relying on his
convictions for theft, failure to register as a predatory offender, and fleeing police in a
motor vehicle as a basis for revoking his proba tion. He argues that he was not provided
notice before the revocation hearing that these convictions would be used to prove that he
failed to remain law abiding. Miller also contends that because the convictions were
previously used to establish a probation violation that resulted in sanctions, it was improper
for the district court to again rely on thes e convictions to estab lish a violation here—a
practice that potentially implicated the constitutional proscription against double jeopardy.
See U.S. Const. amend. V; Minn. Const. art. I, § 7; State v. Hanson, 543 N.W.2d 84, 86
(Minn. 1996) (“The Double Jeopardy Clauses of the Unite d States Constitution and the
12
Minnesota Constitution protect a criminal defendant from . . . multiple punishments for the
same offense.”). At oral argument, the state conceded that it was improper for the district
court to again rely on the convictions as a basis for a violation here.
Even if we assume without deciding that the district court erred in this respect, the
error would not require reversal of the district court’s ultimate decision to revoke Miller’s
probation. The record fully supports the district court’s determination that Miller violated
two other conditions of his probation. Given the serious nature of those violations, and the
district court’s remarks in considering wh ether revocation was wa rranted under the third
Austin factor, we have no concern that the error affected the district court’s decision to
revoke Miller’s probation.2
B. The district court did not abuse its discretion by finding that Miller’s probation
violations were intentional or inexcusable.

Miller next challenges the district court’s determination on the second Austin factor.
This factor requires the district court to find that a probation violation was “intentional or
inexcusable” before revoking probation. Austin, 295 N.W.2d at 250. Miller argues that
the record does not support a finding that his failure to complete sex-offender treatment

2 Miller argues that a remand to the district c ourt is necessary because the district court
may have decided not to revoke his probation had there been just two violations. In support
of this argument, he cites a nonprecedentia l opinion where we re manded to allow the
district court to reconsider its disposition after concluding that there was insufficient
evidence to support one of three probation violations. We are not bound by
nonprecedential opinions. See Jackson ex rel. Sorenson v. Options Residential, Inc. , 896
N.W.2d 549, 553 (Minn. App. 2017) (“[W]e are bound by precedent established in the
supreme court’s opinions and our own publis hed opinions.”). None theless, we have
reviewed the case cited and c onclude that it is factua lly distinguishable from the
circumstances in Miller’s case.
13
was intentional or inexcusable. And he contends that the district court failed to explicitly
find that his possession of firearms was intentional or inexcusable.
We disagree with both arguments advanced by Miller. The district court found that
Miller “presented no credible legal excuse for the probation violations in this matter,” and
the record supports this finding. Although Miller offered excuses for his failure to attend
sex-offender-treatment sessions, the district court did not find his testimony credible.
Instead, the district court accepted the testim ony of Miller’s probation officer that Miller
simply lacked motivation to change his beha vior. The district court also referenced
Miller’s discharge report—one of the state’ s exhibits—which desc ribed Miller’s general
lack of engagement with sex-offender treatm ent. As to Miller’s firearms possession, the
district court observed that the record established that Miller “was specifically instructed”
that “he was prohibited from using or possessing fi rearms.” But, the district court noted,
law enforcement found multiple guns in Miller’s apartment, including a gun with Miller’s
DNA. Because the district court adequately addressed the second Austin factor, and the
record supports its finding that Miller’s probation violations were inexcusable, the district
court did not abuse its discretion.3

3 Miller also argues that, to the extent the district court found that his failure to remain law
abiding was intentional or inexcusable, the district court erred. We do not address this
argument because we have concluded that Miller’s two other violations of probation—his
failure to complete sex-offe nder treatment and his possessi on of firearms—provided the
district court with sufficient bases for revoking his probation.
14
C. The district court did not abuse its di scretion by finding that the need for
confinement outweighed the policies favoring probation.

Finally, Miller argues that the district cour t abused its discretion in addressing the
third Austin factor—whether the need for confin ement outweighed any policies favoring
continued probation. See Austin, 295 N.W.2d at 250. As not ed, this factor requires a
district court to consider several subfactors—specifically, 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. at 251. A district court must also appreciate that “[t]he purpose of
probation is rehabilitation and revocation should be used only as a last resort if treatment
has failed.” Modtland, 695 N.W.2d at 606.
Regarding the third Austin factor, the district court stated:
Given the volume and repetitive nature of . . . Miller’s criminal
conduct (all occurring in a relatively short period of time while
he was out of custody since December 19, 2017), the need for
confinement outweighs the rehabilitative policies favoring
probation. It is clear to the Co urt that treatment has failed in
this case. Modtland, 695 N.W.2d at 606. The Probation
Violation Report dated Dece mber 21, 2020, details the
extensive history of this case. In sum, many attempts have
been made to rehabilitate . . . Miller: to abstain from drugs, to
abide by State and Federal crim inal laws, and to get him on a
legitimate path. The range of interventions over three years
include various treatment pr ograms (in-patient and out-
patient), sober housing, jail time, individual and group therapy
at Alpha, chemical health assessments, and more.

. . . Miller began breaking the law just months after he was
released from jail in this case and he has repeatedly returned to
destructive and anti-social behavior.

15
Miller first argues that the district court abused its discretion because it did not
expressly discuss the three subfactors. While the district court may not have cited to the
exact language of the subfactors, we conclude that its findings implicitly addressed each of
them. The district court emphasized Miller’s continued destructive and antisocial behavior
despite multiple interventions, touching on the public-safety ri sk of continued probation.
The district court remarked on Miller’s repeated treatment fa ilures and noted that “it is
clear . . . that treatment has failed in this case.” And the district court observed that, despite
many attempts at rehabilitation, Miller “began breaking the law just months after he was
released from jail” and never stopped, reco gnizing that continue d probation would not
adequately address Miller’s noncompliance.
Miller also argues that the record does not support the district court’s ultimate
determination that the need for confinement outweighed the policies favoring probation.
We disagree. Based on our review of the reco rd, the district court was well within its
discretion to conclude that the need for conf inement after Miller’s fourth violation of the
conditions of his probation outweighed any policies favoring continued probation. Thus,
the district court did not abuse its discretion in revoking Miller’s probation.
Affirmed.