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This opinion is nonprecedential except as provided by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
A21-1641

State of Minnesota,
Respondent,

vs.

Antone David Davis,
Appellant.

Filed August 22, 2022
Affirmed
Bratvold, Judge

St. Louis County District Court
File No. 69DU-CR-20-3324

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

Kimberly J. Maki, St. Louis County Attorney, Nichole J. Carter, Assistant County
Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Kirk,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges a probation-revocation decision, contending that the district
court abused its discretion because (1) the record does not support the district court’s
findings, and (2) the district court relied on evidence not in the record when it revoked
appellant’s probation. After a careful review of the record, we affirm.
FACTS
The facts summarize the record, including transcripts of the plea and
probation-revocation hearings.
As part of the Lake Superior Drug and Violent Crime Task Force’s investigation
into a drug-trafficking network, law enforcement executed a search warrant on appellant
Antone David Davis’s home in August 2020. According to the complaint, law enforcement
recovered “thirteen bindles of heroin,” “each arranged for individual sale.” Respondent
State of Minnesota charged Davis with six counts of controlled-substance crimes under
Minn. Stat. § 152.021 (2018).
At the February 2021 plea hearing, the parties informed the district court that they
reached a plea agreement. Davis agreed to plead guilty to one count of first-degree sale of
a controlled substance in violation of Minn. Stat. § 152.021, subd. 1(3). Davis also agreed
to testify for the state in its prosecution of a leader of the drug-trafficking network. T he
state promised to dismiss the other five counts, to withdraw “any motions seeking
sentencing enhancement,” and not to refer Davis’s case for federal prosecution. The state
also agreed to recommend the following terms favorable to Davis: a downward
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dispositional departure if Davis received “a top-of-the-box sentence”; “[t]he sentence
[would be] stayed for a period of five years’ probation with no provision for early
discharge”; and Davis “would serve one year at either jail” or the Northeast Regional
Correction Center (NERCC).
At the March 2021 sentencing hearing, the district court granted a downward
dispositional departure based on evidence of “Davis’s specific . . . amenability to
treatment” and sentenced him to 138 months in prison, stayed for five years, and one year
in local confinement to be served at NERCC. Davis’s probation conditions included that
he would “follow all institution/program rules.”
About six months later, probation filed a violation report alleging Davis failed to
follow institution or program rules. At a contested revocation hearing in October 2021,
Davis admitted that he violated rules at NERCC and that his violations of NERCC rules
meant he violated the conditions of his probation. The parties also stipulated to place
certain facts “in the record in lieu of formal testimony, ” which facts Davis agreed were
correct.
The stipulated facts included the following:
• On July 31, 2021, Davis “received a major rule violation for harassment . . . and
disruptive behavior” for saying, “[F]--k you,” to a bunk mate, who also received a
major rule violation for instigating and disruptive behavior (July incident). Davis
believed “that the instigator made derogatory, race-based comments during the
incident.”
• On September 1, 2021, Davis “received a major rule violation for physical assault,
harassment, theft, disobeying staff directives, instigating, and disruptive behavior”
(September incident). The other individual involved also received a major rule
violation for this incident, in part for instigating. Davis believed this incident was
also race-based.
4
• Davis was involved in four other incidents at NERCC. None of the four incidents
resulted “in disciplinary action against . . . Davis,” “NERCC records establish that
on those occasions, the instigator was either the other person or not determined,”
and Davis was not found to be the instigator.
• NERCC did not discharge Davis because of either major rule violation.
• North Star Behavioral Treatment in the Twin Cities accepted Davis, and “several
family members were willing to provide transportation, either a ride or a bus ticket
for . . . Davis.”
• Davis completed many objectives while at NERCC, including obtaining various
identification documents, participating in programming to find post-release
housing, attending therapy, submitting a federal -housing-assistance application,
starting and leading an AA/NA group, completing a parenting class, completing
“decision points, ” graduating from mental-health recovery, “meet[ing] with
SOAR,”1 and engaging in peer recovery.

During the probation-revocation hearing, Davis’s probation officer expanded upon
some of the information in the stipulated facts. He stated that, according to the NERCC
reports, “there was no mention of any kind of racial comment that staff heard or that
witnesses stated [they] heard during the [July] incident.” The probation officer highlighted
that, while at NERCC, Davis was in a controlled environment, underwent programming to
help address his volatility, and still “didn’t practice what he learned.”
The probation officer questioned how Davis would act in the community if similar
situations arose. The September incident was “the most concerning,” according to the
probation officer, because Davis “got physical with another inmate” by “clobber[ing] and
chok[ing]” him, and NERCC staff had to pepper-spray Davis to gain control. While
NERCC did not discharge Davis, the probation officer noted that NERCC would not permit
Davis back at the facility “because of his volatility.”

1 SOAR is a re-entry program that provides services like mentoring, case management, and
employment services to help people successfully transition after incarceration.
5
Davis addressed the district court and explained that he suffered “blow after blow”
while at NERCC, including the deaths of four family members and his own “health issues.”
Still, Davis said his time at NERCC helped him “tremendously.” Davis acknowledged that
he made mistakes but also stated that he “us[ed] a lot of the tools [he] gained at NERCC”
to identify how his thoughts and attitudes impacted his behavior. Despite some setbacks,
Davis said he was “reaching for still more opportunities to better [himself] at North Star
Behavior.”
The district court accepted Davis’s admission of his probation violations and
determined that Davis’s violations were intentional and inexcusable and “that the need for
[Davis’s] confinement outweighs the policies favoring probation.” After an off-the-record
discussion with the attorneys, the district court vacated Davis’s 138 -month sentence and
instead imposed and executed a bottom-of-the-box 98-month sentence.
Davis appeals.
DECISION
Davis contends that the district court abused its discretion by revoking his probation
for two reasons: (1) the record does not support the district court’s findings, and (2) the
district court “relied on evidence that was not in the record.” We consider each argument
in turn.
I. The district court did not abuse its discretion by revoking Davis’s probation ,
and the record supports the district court’s factual findings.
A district court may revoke probation if the probationer violates any condition of
probation. Minn. Stat. § 609.14, subd. 1(a) (2020). “The [district] court has broad
6
discretion in determining if there is sufficient evidence to revoke probation and should be
reversed only if there is a clear abuse of that discretion.” State v. Austin, 295 N.W.2d 246,
249-50 (Minn. 1980). “A district 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.” State v.
Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
District courts must consider three factors before revoking probation and make
specific findings about each factor. Austin, 295 N.W.2d at 250. The “Austin factors”
require a district court to (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.” Id. Whether a district
court has made the required findings for each Austin factor is a question of law that t his
court reviews de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005). In making
its findings, the district court must provide substantive reasons and describe the evidence
on which it relied. Id. at 608.
Davis contends that the record does not support the district court’s findings on the
second and third Austin factors. We discuss each of these two Austin factors in turn.
A. The violations were intentional or inexcusable.
Under the second Austin factor, to justify revocation, the district court must find the
violations were intentional or inexcusable. Austin, 295 N.W.2d at 250. “A violation is
mitigated where it was unintentional or excusable.” State v. Cottew, 746 N.W.2d 632, 636
(Minn. 2008); see also Bearden v. Georgia, 461 U.S. 660, 668-69 (1983) (stating that
where a violation is committed “through no fault of [the defendant’s] own,” the court
7
should “consider[] whether adequate alternative methods of punishing the defendant are
available” before revoking the defendant’s probation).
Davis contends “the record does not support a finding that” his violations were
intentional or inexcusable because he was provoked by “race-based derogatory comments
from his peers,” and because of his completion of so many programs and overall progress
while at NERCC.
The district court considered this evidence, stating it was “difficult to hear that these
[incidents] were racially motivated.” The district court also commended Davis, stating that
he “clearly [did] some good work at NERCC.” Even so, the district court rejected Davis’s
claim and determined Davis’s conduct was “inexcusable, particularly in a controlled
environment and after a lengthy period of programming.” The district court found Davis’s
“violations were both intentional and inexcusable.”
The record supports the district court’s findings. As the probation officer stated
during the contested hearing, the NERCC reports made “no mention” of racial comments
or provocation. Also, during the July incident, Davis “displayed aggression toward another
inmate that required NERCC staff to intervene.” During the September incident, Davis
“got physical” by “clobber[ing] and chok[ing] another inmate” severely enough that
NERCC staff believed the situation was life-threatening, and Davis could not be subdued
until he was pepper-sprayed. The record also shows Davis committed these violations after
receiving over six months’ worth of therapy, peer recovery, and programming for anger
management and volatility.
8
The district court’s comments show it considered Davis’s claim of racial
provocation and his accomplishments while at NERCC but found neither persuasive on
this issue. See State v. Xiong, 638 N.W.2d 499, 503 (Minn. App. 2002) (determining the
district court did not err by finding Xiong’s violation intentional and inexcusable where
Xiong provided his explanation and argument on the matter to the district court, and the
district court listened to the argument and explanation “but did not find it persuasive”), rev.
denied (Minn. Apr. 16, 2002). It is “the district court’s role” to hear testimony, “judge the
credibility of the witnesses,” and weigh evidence, so we defer to the district court’s findings
when based on the record. State v. Losh, 694 N.W.2d 98, 102 (Minn. App. 2005), aff’ d,
721 N.W.2d 886 (Minn. 2006).
Thus, the district court did not abuse its discretion when it considered the stipulated
facts and the probation officer’s statements during the hearing and found Davis’s violations
to be intentional and inexcusable.
B. The need for confinement outweighed the policies favoring probation.
In assessing the third Austin factor, a district court “must balance the probationer’s
interest in freedom and the state’s interest in insuring probationer’s rehabilitation and the
public safety.” Modtland, 695 N.W.2d at 606-07 (quotation omitted). The decision to
revoke probation “cannot be a reflexive reaction to an accumulation of technic al
violations,” but this concern is alleviated when the evidence shows “the offender’s
behavior demonstrates that he or she cannot be counted on to avoid antisocial activity.”
State v. Fleming, 869 N.W.2d 319, 330 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn.
2016). To make a finding on the third Austin factor, a district court weighs the three
9
“Modtland factors”: whether (1) “confinement is necessary to protect the public from
further criminal activity by the offender,” (2 ) “the offender is in need of correctional
treatment which can most effectively be provided if the offender is confined,” or (3) “it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Modtland, 695 N.W.2d at 607 (quotation omitted). Only one Modtland factor is necessary
to support revocation. See Goldman v. Greenwood, 748 N.W.2d 279, 283 (Minn. 2008)
(stating that courts “normally interpret the conjunction ‘or’ as disjunctive rather than
conjunctive”).
Davis contends that the district court abused its discretion on the third Austin factor
because “the court had intermediate sanctions such as inpatient treatment available” (the
first Modtland factor), the district court did not find that incarceration was necessary to
protect the public or that treatment could most effectively be provided in custody (the
second Modtland factor), and the record does not support a finding that continuing
probation would unduly depreciate the seriousness of his violation because other
intermediate sanctions were available (the third Modtland factor).
The state contends that the record shows that Davis cannot avoid antisocial activity
and that the district court properly considered Davis’s downward dispositional departure ,
his seven other felony convictions, his “need [for] additional rehabilitative programming
in a controlled environment,” and that NERCC was no longer an option for him. Based on
these considerations, the state contends the district court “properly concluded” the need for
confinement outweighed the policies favoring probation.
10
The district court stated that “the decision to revoke an offender’s stayed sentence
should not be undertaken lightly,” and “great restraint should be used” in making that
determination. The district court also expressly considered alternatives to executing
Davis’s sentence, reasoning that “continuance of the stay and use of more restrictive and
onerous conditions such as periods of local confinement” are urged for “offenders who
were originally convicted of low severity level offenses or who have short prior criminal
histories.” The district court explained that “[l]ess judicial tolerance is urged for offenders
who are convicted of a more severe offense or who had a longer criminal history,” and “the
Court should not reflexively order imprisonment for noncriminal violations of probationary
conditions.” See Minn. Sent. Guidelines 3.B (Supp. 2019).
The district court determined, however, that Davis’s violations were “not a technical
violation” and “that the need for [Davis’s] confinement outweighs the policies favoring
probation.” The district court explained that Davis’s “behavior occurred in a controlled
environment, which is no longer an option for [Davis]” as NERCC considered him a
security risk, and that, during the September incident, Davis “clobbered this guy and
choked him.” The district court highlighted that Davis’s violations occurred recently, after
Davis received “significant programming.” The district court also found Davis had “seven
prior felonies” and received a “downward dispositional departure on a very serious
offense” based on his “particular amenability to probation.” These findings support the
district court’s determination that the need for confinement outweighed the policies
favoring probation.
11
Though the district court did not explicitly discuss the Modtland factors, explicit
reference is not required. See Losh, 694 N.W.2d at 10 2 (finding the third Austin factor
adequately supported where the district court did not expressly reference the third Austin
factor or any Modtland factor but made findings that showed the appellant’s drug use was
a danger to public interest). Yet, the district court’s findings implicitly address each of the
three Modtland factors, even though findings on only one Modtland factor are required.
The district court’s analysis implies any sanction other than revocation would unduly
depreciate the seriousness of Davis’s violation. Thus, the district court did not abuse its
discretion by determining the need for confinement outweighed the policies favoring
probation.
II. The district court did not rely on evidence outside the record to revoke Davis’s
probation.
The Minnesota Rules of Evidence, aside from rules on privileges, do not apply to
proceedings revoking probation. Minn. R. Evid. 1101(b)(3); State v. Johnson, 679 N.W.2d
169, 174 (Minn. App. 2004). Even so, a probation revocation may lead to the deprivation
of freedom, so due process is required. U.S. Const. amends. V, XIV; Minn. Const. art. I,
§ 7.
The process due at a revocation hearing is the opportunity for a hearing where the
probationer has “an opportunity to be heard and to show, if he can, that he did not violate
the conditions, or, if he did, that circumstances in mitigation suggest” revocation is not
warranted. Morrissey v. Brewer, 408 U.S. 471, 488 (1972). The minimum due-process
requirements provide probationers the right to (1) an attorney; (2) a revocation hearing to
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determine whether clear and convincing evidence supports the violation; (3) disclosure of
all evidence used to support revocation and the official records relevant to revocation;
(4) present evidence and subpoena, cross-examine, and call witnesses; and (5) present
mitigating evidence. Minn. R. Crim. P. 27.04, subd. 2(1)(c); Morrissey, 408 U.S. at 489.
Davis cites minimum due-process requirements and argues the district court
improperly relied on evidence outside the record, specifically, a video recording from
NERCC, the violation report, and the probation officer’s statements describing the video
recording. Without citing legal authority, Davis contends the district court should have
limited the record to the stipulated facts. Davis also contends that he protested the district
court’s use of the video evidence at the hearing, but his protests “went unacknowledged by
the court.”
Davis’s claim that the district court relied on a video recording is unsupported. To
be clear, no video recording was shown during the revocation hearing, nor was a video
recording filed with the district court. T he district court commented on the probation
officer’s statements— made during the hearing—about a video recording. Thus, the district
court relied on the probation officer’s statements and the violation report, both of which
were in the record.
Davis’s claim that his objections during the hearing went unaddressed is also
unsupported. After the district court heard all the evidence, it began to make Austin-factor
findings on the record. The district court noted there was a video recording showing Davis
“clobbered and choked” another inmate. Davis’s attorney interrupted and claimed that this
“was not evidence that was put on the record. Those were statements that were simply
13
made by probation, so that’s not actually evidence before the court.” Davis’s attorney then
argued that if the district court planned to consider the video recording, it should also find
that others instigated Davis’s response. The district court acknowledged this point and
stated that both the violation report and the probation officer’s statements “[were] placed
on the record and in the record.” Thus, the district court responded to Davis’s concern about
the record.
In his brief to this court, Davis acknowledges that the video recording was
referenced in the violation report. Importantly, David had access to the violation report
before his revocation hearing. Thus, Davis had notice of the video recording before the
revocation hearing and had the opportunity to present evidence, subpoena witnesses, and
question the probation officer during the hearing. In fact, Davis also presented mitigating
evidence during the hearing. See Minn. R. Crim. P. 27.04, subd. 2(1)(c) (describing the
due-process rights afforded at probation-revocation hearings). We conclude Davis received
the due process afforded probationers at his revocation hearing.
Affirmed.