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This opinion is nonprecedential except as provided by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
A21-1738

State of Minnesota,
Respondent,

vs.

Alfonso Carillo Buenaventura,
Appellant.

Filed August 8, 2022
Affirmed
Slieter, Judge

St. Louis County District Court
File No. 69VI-CR-19-322

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

Kim Maki, St. Louis County Attorney, Aaron Welch, Assistant County Attorney, Virginia,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges the revocation of his probation, arguing that the evidence does
not support one of the two alleged violations, and that the district court abused its discretion
by concluding that the need for confinement outweighs the policies favoring probation.
2
The record supports the district court’s finding that appellant violated two conditions of
probation, and it properly considered the Modtland subfactors. Therefore, we affirm.
FACTS
In December 2019, appellant Alfonso Carillo Buenaventura pleaded guilty to
second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(b)
(2018). The district court accepted the plea and stayed execution of a 36-month prison
term for five years, subject to several conditions.
Among his conditions of probation, Buenaventura was required to “enter,
participate in, and successfully complete a sex offender treatment program” and was
prohibited from “use of or access to the internet through any technology or third party for
social networking sites, dating sites, or sexually explicit/pornographic materials as
determined by probation unless specifically approved by probation.”
In February 2020, Buenaventura’s probation officer filed a first probation-violation
report alleging that Buenaventura violated the conditions of his sentence by accessing
sexually explicit materials on the internet. Based on this report, the district court revoked
his probation and issued an order for his apprehension. After Buenaventura admitted to
this violation, the district court reinstated his probation.
In May 2021, Buenaventura’s probation officer filed a second probation-violation
report, which alleged that Buenaventura violated probation by failing to complete sex-
offender treatment and by accessing social media. The report recommended revoking
probation “due to his inability to complete [treatment] while being out in the community,”
and that treatment “would most effectively be provided if he is confined.”
3
During a contested probation-violation hearing, the probation officer testified and
the district court received the probation officer’s notes as well as records from
Buenaventura’s sex-offender treatment provider. The district court found that
Buenaventura had vio lated the conditions of his probation, revoked Buenaventura’s
probation, and executed the 36-month prison term. Buenaventura appeals.
DECISION
“The trial court has broad 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. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019)
(quotation omitted). 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 policies favoring
probation.” Austin, 295 N.W.2d at 250.
Buenaventura argues that the district court abused its discretion in revoking his
probation because “there was no direct evidence that [he] personally accessed the
. . . internet” and “there was simply no showing that the need for confinement in prison
outweighed the alternatives.” We are not persuaded.
Buenaventura violated two conditions of probation.
Probation violations must be proved by clear and convincing evidence. Minn. R.
Crim. P. 27.04, subd. 2(1)(c)(b). The clear and convincing “standard is met when the truth
4
of the facts sought to be admitted is highly probable.” State v. Miller, 754 N.W.2d 686,
701 (Minn. 2008) (quotation omitted).
Buenaventura does not challenge the district court’s finding that he failed to
successfully complete sex-offender treatment. This failure alone would have been a
sufficient basis to find a violation of the express conditions and consider revoking
probation. See Austin, 295 N.W.2d at 248-5 2 (affirming revocation of probation where
failure to follow through with chemical -dependency treatment was the only violation
alleged).
A separate condition of his probationary sentence prohibited Buenaventura from
accessing “the internet through any technology or third party for social networking
sites . . . unless specifically approved by probation.” And contrary to Buenaventura’s
argument, the state did not have to prove that he accessed social media “personally.”
The record supports the district court’s finding that clear and convincing evidence
demonstrates Buenaventura accessed a social networking site, either directly or indirectly.
Buenaventura’s probation officer testified that she observed that Buenaventura’s Facebook
profile picture had changed at least three times while he was subject to the conditions of
probation, and one profile picture was of a Kobe Bryant trading card with the victim’s
name written on it. Records from Buenaventura’s sex-offender treatment also show that
he admitted to “logging into” Facebook.

5
The district court properly considered the Modtland subfactors before revoking
probation.

The third Austin factor reflects the policy considerations favoring revocation of
probation “only as a last resort when treatment has failed,” which balances “the
probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and
the public safety.” Austin, 295 N.W.2d at 250-51. Revoking probation “cannot be a
reflexive reaction to an accumulation of technical violations but requires a showing that
the offender’s behavior demonstrates that he or she cannot be counted on to avoid antisocial
activity.” Id. at 251 (quotation omitted). When determining if these policy considerations
favor revoking probation, the district court should consider 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.

State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quoting Austin, 295 N.W.2 d at
251). We refer to these as the Modtland subfactors.
The district court concluded that Buenaventura’s repeated failure to comply with
the terms of his sentence and “deflection for every circumstance” showed that he was “in
need of correctional treatment that can only be completed in a correctional facility, and
more importantly it would diminish the seriousness[] of the ultimate violations if the Court
were not to execute the sentence .” Thus, contrary to Buenaventura’s claim, the district
court properly considered two Modtland subfactors and, moreover, the record supports its
conclusions.
6
Buenaventura was terminated from outpatient treatment “due to his lack of progress
and investment in treatment along with his social media presence.” Before the district court
announced its disposition, Buenaventura stated that he “believe[d] that [he] didn’t do
anything wrong,” blamed his lack of success in sex-offender treatment on difficulties posed
by COVID-19-related restrictions, and alleged that being barred from using the internet
violated his constitutional rights.
The district court properly exercised its sound discretion and did not revoke
Buenaventura’s probation in a “reflexive reaction to an accumulation of technical
violations.” Austin, 295 N.W.2d at 251 (quotation omitted).
Affirmed.