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This opinion is nonprecedential except as provided by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
A22-0999

State of Minnesota,
Respondent,

vs.

Merwin Andrew Coleman,
Appellant.

Filed March 6, 2023
Affirmed
Cochran, Judge

Olmsted County District Court
File No. 55-CR-18-3931

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

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

Considered and decided by Cochran, Presiding Judge; Larson, 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NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal, appellant challenges the district court’s revocation of his
probation. Because the district court did not abuse its discretion by revoking appellant’s
probation, we affirm.
FACTS
In June 2018, respondent State of Minnesota charged appellant Merwin Andrew
Coleman with first-degree burglary and third- degree criminal sexual conduct in violation
of Minn. Stat. §§ 609.582, subd. 1(a), .344, subd. 1(c) (2016). The charges stemmed from
allegations that Coleman broke into a woman’s home, raped her, and stole her phone.
Following a jury trial in January 2019, Coleman was convicted of both charges. A
postconviction court reversed Coleman’s convictions after finding that he had received
ineffective assistance of trial counsel. In lieu of another trial, Coleman entered into a plea
agreement with the state.
On October 7, 2021, Coleman appeared in district court and pleaded guilty to
first-degree burglary and third- degree criminal sexual conduct by entering an Alford plea
for both charges. 1 In exchange for his guilty pleas, the state recommended that Coleman
receive a 153-month prison sentence with a 15-year stay of execution. This

1 An Alford plea allows a criminal defendant to plead guilty while maintaining their
innocence as long as (1) the state demonstrates “a strong factual basis for the plea” and
(2) the defendant clearly expresses a desire to plead guilty based on their belief that the
state has sufficient evidence to convict them. State v. Theis, 742 N.W.2d 643, 647
(Minn. 2007) (quoting North Carolina v. Alford, 400 U.S. 25, 38 (1970)).
3
recommendation represented a downward dispositional departure from Coleman’s
presumptive executed sentence. The plea agreement also provided that Coleman would
receive a psychosexual evaluation and cooperate with a presentence investigation (PSI).
After Coleman entered his guilty pleas, the district court heard from counsel regarding the
basis for the proposed dispositional departure and set the matter for sentencing in
December.
Prior to sentencing, a licensed psychologist performed a psychosexual evaluation of
Coleman and the county community corrections system completed a PSI report. The
psychologist’s evaluation noted that Coleman lacked remorse for his sex offense and that
Coleman was at high risk for reoffense. The psychologist’s evaluation also recommended
that any treatment occur in a secure setting. The PSI report reflected similar concerns. The
PSI report stated that Coleman “was not an appropriate candidate [for probation] due to his
high risk, lack of offense ownership, and the seriousness of the offense.” But the PSI report
provided probation recommendations in recognition of the plea agreement.
Sentencing
On December 16, 2021, the district court sentenced Coleman to concurrent
sentences of 88 months in prison for first-degree burglary and 117 months in prison for
third-degree criminal sexual conduct.2 In accordance with the plea agreement, the district
court stayed Coleman’s sentences and placed him on probation for 15 years.

2 Coleman’s presumptive sentence for third-degree criminal sexual conduct was reduced
from 153 months to 117 months following a favorable recalculation of his criminal-history
score.
4
The district court imposed several conditions of probation. In relevant part, these
conditions required Coleman to: (1) notify his probation officer within 72 hours of any
changes to his address, employment, or telephone number; (2) cooperate with the search
of his person, residence, and property, as directed by his probation officer; (3) attend a
sex-offender treatment program; (4) refrain from possessing alcohol; and (5) r efrain from
accessing or using the internet without approval and from “own[ing] or operat[ing] any
device that allows for internet capabilities or access to the internet.”
Probation Violations
Two months later, on February 16, 2022, Coleman’s probation officer filed a
violation report alleging that Coleman had violated his probation by failing to report a
change of address and a change of employment within 72 hours. Between mid-February
and mid-March, Coleman’s probation officer filed three addenda, each of which alleged
new probation violations. In total, Coleman’s probation officer alleged that Coleman had
violated his probation six times by (1) failing to inform his probation officer within
72 hours of a change to his address and employment; (2) possessing alcohol; (3) accessing
the internet without approval or owning or operating a device with internet capabilities;
(4) failing to cooperate with a search of his property; (5) failing to inform his probation
officer of another change to his address; and (6) failing to attend sex-offender treatment
within 72 hours.
Probation-Revocation Hearing
On April 18, 2022, the parties appeared for a contested probation-revocation
hearing. Coleman’s probation officer testified about the circumstances surrounding
5
Coleman’s alleged probation violations. Coleman’s probation officer began by explaining
that, on the day that Coleman was sentenced, Coleman stated that he would be residing at
an address on 8 1/2 Street in Rochester. In the coming weeks, the probation officer visited
that address several times but did not find Coleman there on any occasion.
Next, the probation officer encountered problems trying to schedule a meeting with
Coleman. When the probation officer suggested that they meet on February 11, 2022,
Coleman responded that he could not meet on that date because he was scheduled to work.
Coleman’s probation officer later learned that Coleman had been released from his job on
February 7, 2022, but Coleman did not inform him of this change in employment.
Around this time, Coleman’s probation officer became concerned that Coleman was
not residing at his reported address on 8 1/2 Street. The probation officer learned through
the monitoring software on Coleman’s phone that Coleman had ordered groceries to an
address on 16th Avenue. Coleman’s probation officer went to this address and confirmed
with the property manager that Coleman was leasing an apartment in the building. One
week later, Coleman’s probation officer visited the 16th Avenue apartment accompanied
by another probation officer and Rochester police. After knocking repeatedly, the officers
let themselves into the apartment using a key that the landlord had provided. As they
entered, Coleman came out of a back bedroom and spoke with the officers. A woman also
came out of the bedroom.
During their search of the apartment, the officers found a bottle of Schnapps on the
kitchen counter, several cans of malt liquor in the refrigerator, and a bottle of rum in the
freezer, as well as a cell phone in the kitchen, two other cell phones in the back bedroom,
6
and a computer “tablet.” Upon request, Coleman provided a password for the tablet but
not the cell phones. Coleman was arrested that night and transported to jail.
While Coleman was in jail, Coleman’s probation officer monitored Coleman’s
phone calls from jail. During some of these calls, the officer heard Coleman describe
another apartment and learned that Coleman had a set of keys to that apartment. The officer
investigated further and discovered that the keys were for a n apartment located at “Mile
Manor” in Rochester. The officer also learned from the property manager at Mile Manor
that Coleman had sub-leased the apartment in December 2021 and that the lease was up at
the end of February 2022. The officer visited the Mile Manor apartment and found several
items with Coleman’s name including inmate property sheets and mail.
Lastly, Coleman’s probation officer testified that Coleman was “terminated as
unsuccessful” from the outpatient sex-offender treatment program that he attended after
his arrest. Coleman’s probation officer recommended that Coleman’s sentences be
executed to protect the public from further criminal activity and to ensure that Coleman
received the sex-offender treatment he need ed. Coleman chose not to testify at the
probation-violation hearing.
District Court Findings and Conclusions
On April 25, 2022, the district court issued a written order revoking Coleman’s
probation. Crediting the testimony of Coleman’s probation officer, the district court found
that the state had proven by clear and convincing evidence that Coleman intentionally
violated the following conditions of his probation: (1) the condition requiring Coleman to
notify his probation officer within 72 hours of any changes to his address or employment;
7
(2) the condition prohibiting Coleman from possessing alcohol; and (3) the condition
prohibiting Coleman from accessing or using the internet without approval and from
owning or operating an internet-capable device.3
In its order, the district court also discussed the legal standard for probation
revocation. The district court concluded that the standard was met because Coleman had
intentionally violated several conditions of his probation and “the need for confinement
outweigh[ed] the policies favoring probation.” In reaching this decision, the district court
concluded that confinement was necessary to protect the public and to ensure that Coleman
received sex-offender treatment. Accordingly, the district court revoked Coleman’s
probation and executed his sentences.
Coleman appeals.
DECISION
When a district court finds that a probation violation has occurred, the district court
has the discretion to continue the probationer on probation or revoke probation and execute
the underlying sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(v). But, before revoking
probation and executing the underlying sentence, the district court must find that: (1) the
probationer violated at least one specific condition of their probation, (2) “the violation
was intentional or inexcusable,” and (3) the “need for confinement outweighs the policies
favoring probation.” State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). These findings
are commonly known as the Austin factors. In making findings on the Austin factors, a

3 The district court also found that the state did not prove by clear and convincing evidence
the two remaining alleged violations. Those alleged violations are not at issue on appeal.
8
district court “must seek to convey [its] substantive reasons for revocation and the evidence
relied upon.” State v. Modtland, 695 N.W.2d 602, 608 (Minn. 2005). The district court’s
decision to revoke 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.” Austin, 295 N.W.2d at 251 (quotation
omitted).
District courts have “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.”4
Id. at 249- 50. 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.” Riley v. State,
819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted).
Coleman challenges the district court’s findings on the first and third Austin factors,
but not the second. We address his arguments on each factor in turn.

4 Additionally, when a district court is considering whether to revoke a stayed sentence,
the Minnesota Sentencing Guidelines urge “[l]ess judicial tolerance . . . for offenders who
were convicted of a more severe offense.” Minn. Sent’g Guidelines 3.B (Supp. 2017).
This is especially true when, as is the case here, an offender’s sentence represents a
downward dispositional departure. See State v. Moot, 398 N.W.2d 21, 24 (Minn. App.
1986) (affirming a district court’s decision to revoke probation where “the presumptive
sentence was commitment to prison and the downward departure was solely to permit one
last attempt to succeed at treatment”), rev. denied (Minn. Feb. 13, 1987);
cf. State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015) (providing that a district
court may consider a “grant of a downward dispositional departure when deciding whether
to revoke probation”).
9
I. The district court did not abuse its discretion by finding that the first Austin
factor was met.

To satisfy the first A ustin factor, the district court must “designate the specific
condition or conditions” that the probationer violated. 295 N.W.2d at 250. Here, the
district court found that Coleman intentionally violated three conditions of his
probation: (1) the condition requiring Coleman to notify his probation officer within
72 hours of any changes to his address or employment; (2) the condition prohibiting
Coleman from possessing alcohol; and (3) the condition prohibiting Coleman from
accessing or using the internet without approval and from owning or operating an
internet-capable device. The district court found that Coleman violated the first of these
conditions by failing to report his 16th Avenue apartment, failing to report his layoff from
his employer, and failing to report his Mile Manor apartment.
On appeal, Coleman does not challenge the district court’s finding that he violated
the first of these conditions. Nor does he dispute the district court’s finding that he violated
this condition multiple times. Instead, Coleman argues that the district court abused its
discretion by finding that he violated two other conditions of his probation—namely, the
conditions prohibiting him from possessing alcohol and from accessing the internet without
approval or owning or operating an internet-capable device.
We begin our analysis by noting that the district court’s finding that Coleman
violated the first of these three conditions is sufficient to satisfy the first Austin factor. A
district court need only find that one condition of probation was violated to support its
decision to revoke probation. Id. (requiring the district court to “designate the specific
10
condition or conditions that were violated” (emphasis added)). Thus, even if the district
court had abused its discretion with regard to its findings on the other two probation
conditions, any such abuse of discretion would not require reversal. See id. Regardless,
as discussed below, the record demonstrates that the district court did not abuse its
discretion by finding that Coleman also violated two other conditions of probation by
(1) possessing alcohol and (2) owning or operating an internet-capable device.
A. The record supports the district court’s finding that Coleman
constructively possessed alcohol.

Coleman contends that the district court abused its discretion when it found that he
possessed alcohol in violation of his probation conditions because the evidence presented
by the state at the revocation hearing was insufficient to prove that he possessed alcohol.
We are not persuaded.
The state bears the burden of proving a probation violation by clear and convincing
evidence. Minn. R. Crim. P. 27.04, subds. 2(1)(c)(b), 3(3); State v. Losh, 694 N.W.2d 98,
101 (Minn. App. 2005), aff’d, 721 N.W.2d 886 (Minn. 2006). The clear-and-convincing
standard “requires more than a preponderance of the evidence but less than proof beyond
a reasonable doubt” required for a criminal conviction. State v. Kennedy, 585 N.W.2d 385,
389 (Minn. 1998) (quotation omitted). This “standard is met when the truth of the facts
sought to be admitted is highly probable.” Id. (quotation omitted). As the factfinder in
probation-revocation hearings, a district court assesses witness credibility, and this court
defers to district court credibility determinations. Losh, 694 N.W.2d at 102.
11
The state may prove possession through evidence of actual or constructive
possession. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). To prove constructive
possession of a substance, the state must demonstrate that either (1) “police found the
substance in a place under defendant’s exclusive control to which other people did not
normally have access, or” (2) “there is a strong probability (inferable from other evidence)
that defendant was . . . consciously exercising dominion and control over” the substance,
even though others had access to the place where it was found. State v. Onyelobi,
879 N.W.2d 334, 343 (Minn. 2016) (quoting State v. Florine, 226 N.W.2d 609, 611
(Minn. 1975)). “Proximity is an important consideration in assessing constructive
possession,” and constructive possession may be shared. State v. Smith, 619 N.W.2d 766,
770 (Minn. App. 2000), rev. denied (Minn. Jan. 16, 2001). We consider the totality of the
circumstances in determining whether the state has proved constructive possessi on.
State v. Denison, 607 N.W.2d 796, 800 (Minn. App. 2000), rev. denied (Minn. June 13,
2000). Thus, the question before us is whether the totality of the circumstances establishes
that the state has proven constructive possession by clear and convincing evidence. See
id.; Losh, 694 N.W.2d at 101.
Coleman contends that the evidence that the district court relied on —namely, the
fact that Coleman came out of the back bedroom of the 16th Avenue apartment and the fact
that there was alcohol in several locations in the kitchen of that apartment— does not
establish that Coleman consciously or knowingly exercised dominion and control over the
alcohol. We disagree.
12
Even if we assume that the 16th Avenue apartment was accessible to others, as
Coleman asserts, the evidence shows that Coleman consciously exercised dominion and
control over the alcohol. Coleman was leasing and residing at the 16th Avenue apartment
where the alcohol was found . Police found the alcohol in three different locations
throughout the kitchen—on the counter, in the refrigerator, and in the freezer—all of which
Coleman had control over. And one of these locations, the kitchen counter, was near his
court-approved phone. From this evidence, it is logical to infer that Coleman was in
constructive possession of the alcohol, as the district court found.
Coleman’s citation to State v. Lorenz, 368 N.W.2d 284, 288 (Minn. 1985), does not
persuade us otherwise. In Lorenz, the Minnesota Supreme Court stated that, in general,
“the mere fact that a defendant is one of two or more occupants of an apartment does not
justify convicting the defendant of possessing controlled substances found in a common
area of the apartment.” Id. Coleman’s reliance on Lorenz is misplaced because Lorenz
involved a challenge to the sufficiency of the evidence to support a criminal conviction for
drug possession, not a challenge to a factual finding in a probation-revocation proceeding.
Id. at 287-88. And, as discussed above, the burden of proof in a criminal trial is higher
than in a probation-revocation proceeding. Similarly, the standard of review on appeal
from a probation-revocation decision is more deferential. Compare Austin, 295 N.W.2d at
249-50 (explaining that district courts have “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”), with State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (explaining
that an appellate court “will not disturb the verdict if the jury, acting with due regard for
13
the presumption of innocence and the requirement of proof beyond a reasonable doubt,
could reasonably conclude that the defendant was guilty of the charged offense”).
Moreover, while the record does reflect that there was an unidentified female in the
bedroom with Coleman when the police arrived, there is no evidence that another person
was on the lease for the 16th Avenue apartment or otherwise occupying it. And there is no
evidence to suggest that the female was the owner of the two bottles of alcohol and multiple
cans of malt liquor found in the apartment where Coleman was residing or that Coleman
did not exercise dominion or control over the alcohol. Thus, Lorenz does not compel us to
conclude that the district court abused its discretion by finding that Coleman constructively
possessed the alcohol found in his apartment, and we decline to do so based on the record
before us. In sum, the district court did not abuse its discretion by finding that Coleman
violated a condition of his probation by possessing alcohol.
B. The record supports the district court’s finding that Coleman owned or
operated an internet-capable device.

Coleman next argues that the district court abused its discretion by finding that he
violated the condition of his probation relating to internet access and “own[ing] or
operat[ing] any device that allows for internet capabilities or access to the internet.”
Coleman contends that this probation-violation finding must be reversed because the
district court only found that he had “access to an internet device, specifically a tablet,”
and “no evidence showed Coleman accessed the internet.” This argument misses the mark.
The probation condition at issue provides in full: “No access to or use of internet
without approval; must not own or operate any device that allows for internet capabilities
14
or access to the internet through any technology or third party.” (Emphasis added.) The
district court found that Coleman constructively possessed an internet-capable device
based on the probation officers’ testimony that police discovered a tablet in Coleman’s
bedroom at his 16th Avenue apartment, and that Coleman knew the password for the tablet.
Accordingly, the district court found that the state had proven by clear and convincing
evidence that Coleman had violated the condition of his probation prohibiting him from
owning or operating an internet-capable device.
The district court’s finding that Coleman violated this probationary condition is
supported by the record. The record shows that Coleman owned an internet-capable
device. Police found a tablet in the bedroom of Coleman’s 16th Avenue apartment, and
Coleman provided police with the password to the tablet. This evidence shows, at a
minimum, that Coleman jointly exercised dominion and control over the tablet, and
therefore constructively possessed it. See, e.g., Denison, 607 N.W.2d at 800. Accordingly,
the district court did not abuse its discretion when it found that Coleman violated the
probationary condition prohibiting him from owning or operating an internet-capable
device.
In sum, we discern no abuse of discretion with regard to the district court’s findings
on the first Austin factor.
II. The district court did not abuse its discretion when it found that the third
Austin factor was met.

Coleman next challenges the district court’s determination that the third Austin
factor was met—namely that “the need for confinement outweighs the policies favoring
15
probation.” 295 N.W.2d at 250. He contends that the district court’s findings regarding
this factor are not supported by the record. Once again, we discern no abuse of discretion
by the district court.
When evaluating whether the need for confinement outweighs the policies favoring
probation, the district court must “balance the probationer’s interest in freedom and the
state’s interest in insuring his rehabilitation and the public safety.” Modtland, 695 N.W.2d
at 606-07 (quoting Austin, 295 N.W.2d at 25 0). In balancing these interests, t he district
court considers (1) whether “confinement is necessary to protect the public from further
criminal activity” by the offender; (2) whether “the offender is in need of correctional
treatment which can most effectively be provided if he is confined;” or (3) whether “it
would unduly depreciate the seriousness of the violation if probation were not revoked.”
Id. at 607 (quoting Austin, 295 N.W.2d at 251). Revocation is justified even if the district
court finds that only one subfactor is satisfied. See id.; see also Goldman v. Greenwood,
748 N.W.2d 279, 283 (Minn. 2008) (explaining that “we normally interpret the conjunction
‘or’ as disjunctive rather than conjunctive”).
Here, the district court found that the first two subfactors were satisfied. Therefore,
if the record supports the district court’s determination with respect to either, we will not
disturb the district court’s decision to revoke probation. See Modtland, 695 N.W.2d at 607;
Greenwood, 748 N.W.2d at 283.
With respect to the first subfactor, the district court determined that confinement
was necessary to protect the public from further criminal activity. In reaching this
conclusion, the district court explained that Coleman’s lack of accountability for where he
16
was living suggested that he wanted to “live life on his own terms without any
rehabilitation.” The district court emphasized that, without proper monitoring, Coleman
“present[ed] a danger to the community.”
Coleman argues that the district court abused its discretion by finding that
confinement is necessary to protect the public from further criminal activity because
“nothing about the [probation] violations suggests that Coleman engaged in any criminal
activity that put the public at risk.” He also argues that a lesser sanction such as GPS
monitoring could adequately protect the public from any risk. We are not persuaded.
The record amply supports the district court’s determination that confinement is
necessary to protect the public from further criminal activity. Coleman is an untreated sex
offender who concealed two different residences from his probation officer. Notably,
Coleman failed to disclose one residence after his probation officer had already discovered
the other. A sex offender’s failure to report a change of address is prohibited by law. Minn.
Stat. § 243.166, subds. 1b(a)(1)(iii), 3(b) (2020). And, as the district court correctly noted,
Coleman’s failure to report these new addresses was not a mere technical violation —it
impeded Coleman’s probation officer from monitoring his behavior and protecting the
public. Coleman’s repeated attempts to evade monitoring support the district court’s
finding that confinement is necessary to protect the public from further criminal activity.
GPS monitoring is not a sufficient alternative because a GPS monitor can be removed.
Thus, the district court did not abuse its discretion when it found that “confinement is
needed to protect the public from further criminal activity.”
17
With regard to the second subfactor, the district court determined that Coleman’s
“need for treatment [was] great” and that it could “only be accomplished in a correctional
setting.” In support of this finding, the district court emphasized that Coleman’s “deceitful
choices” demonstrated that he was “not interested and/or capable of availing himself of the
resources he need[ed] to change his behavior and be rehabilitated.” Thus, the district court
concluded, “confinement [was] the only choice.”
Coleman contends that the district court abused its discretion when it found that the
second subfactor (relating to treatment) was met. He argues that “nothing in the record
showed that he was in need of treatment that could only be provided in a correctional
setting.” Coleman further argues that “[t]he district court had other, better options available
to it.” Because we have already concluded that the district court did not abuse its discretion
when it found that the first subfactor was met, we need not address Coleman’s arguments
regarding the second subfactor, but we do so briefly. See Modtland, 695 N.W.2d at 607;
Greenwood, 748 N.W.2d at 283.
The district court’s determination that Coleman was in need of sex-offender
treatment in a correctional setting is supported by the record. Although the district court
acknowledged that Coleman “may” be able to receive sex-offender treatment in the
community, the record shows that Coleman was resistant to sex-offender treatment and is
at high risk of reoffense. In addition, Coleman’s evasive conduct supports the district
court’s finding that Coleman seeks “to live life on his own terms without any
rehabilitation.” Thus, the district court did not abuse its discretion when it found that the
need for confinement outweighs the policies favoring probation.
18
In summary, the record supports the district court’s findings on the Austin factors
challenged by Coleman. Accordingly, we discern no basis for concluding that the district
court abused its discretion by revoking Coleman’s probation.
Affirmed.