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This opinion is nonprecedential except as provided by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
A22-1153

State of Minnesota,
Respondent,

vs.

Keith Arthur Bowers,
Appellant.

Filed April 10, 2023
Affirmed
Gaïtas, Judge

Olmsted County District Court
File No. 55-CR-19-3249

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, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Gaïtas, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Keith Arthur Bowers challenges the district court’s decision to revoke his
probation and sentence him to 36 months in prison, followed by ten years of conditional
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release. He argues that the district court abused its discretion by finding that the need for
confinement outweighed the policies favoring continued probation, and by revoking his
probation based on that finding. Because the district court’s decision to revoke Bowers’s
probation was not an abuse of its discretion, we affirm.
FACTS
In May 2019, respondent State of Minnesota charged Bowers with third-degree
criminal sexual conduct for sexually penetrating a 14-year -old girl when he was 35 years
old. See Minn. Stat. § 609.344, subd. 1(b) (2016). Bowers pleaded guilty to an amended
count of fourth-degree criminal sexual conduct in March 2020. In December 2020, the
district court stayed imposition of sentence and placed Bowers on probation for five years.
Fifteen months later, in March 2022, a probation agent filed a report alleging that
Bowers had violated his probation by failing to remain law abiding, abusing drugs, and
failing to complete sex-offender treatment. On April 12, 2022, Bowers admitted to
committing each of the alleged violations. Although the state asked the district court to
revoke the stay of imposition and to stay execution of a 36- month prison sentence, the
district court continued the stay of imposition.
A month later, on May 13, 2022, a probation agent filed a second violation report
alleging that Bowers had failed to complete chemical-dependency treatment. The report
stated that Bowers had absconded from treatment after just 14 hours. According to the
report, Bowers had contacted the probation agent for permission to leave treatment, the
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probation agent denied the request and warned that an arrest warrant would issue if Bowers
absconded, and Bowers left the treatment program a few hours later.
In addition to discussing the alleged violation, the May 13 violation report also
noted that Bowers was prone to engage in physically and sexually violent behavior,
particularly with S.S., a woman with whom Bowers had been ordered not to have contact
as a condition of probation. According to the report, S.S. claimed to have visible marks on
her neck and other bruising from a violent encounter with Bowers during which Bowers
kicked her.
Ten days later, on May 23, 2022, the probation agent filed an addendum to the
violation report adding a second violation. The addendum alleged that Bowers made two
phone calls to S.S. from jail, violating the no-contact condition of his probation.
Additionally, the report stated that, after his first appearance on the new probation
violation, Bowers had left three voice messages for the probation agent, calling her a “piece
of sh-t” and a “skinny little worm headed piece of sh-t,” and expressing his hope that she
would “burn in hell.”
Initially, Bowers denied both of the alleged violations and requested a contested
hearing. But at the contested hearing, he admitted the violations and focused his argument
on the disposition for the violations. Bowers explained to the district court that he left the
chemical-dependency treatment program because he was concerned about his belongings,
which were with an acquaintance whom he described as “a heroin addict.” According to
Bowers, because he was unable to reach the acquaintance, who had Bowers’s important
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documents, including his social security card and financial documents, he became “hyper-
focused” on his property and could not remain in treatment. Bowers stated that he sent his
probation agent a video that showed him packing his belongings, he dropped his belongings
off with another friend, and then he turned himself in. He emphasized that he passed a
drug test at the jail immediately thereafter. Bowers also noted that he had completed his
weekly registration with the sheriff as a sex offender experiencing homelessness.
As to the second violation, Bowers acknowledged that he was prohibited from
communicating with S.S. But he explained to the district court that he called S.S. from jail
because he had not spoken with anyone “for days on end,” and he “just needed to talk to
somebody positive.”
The district court found that Bowers “violated the terms of his supervised probation
. . . by leaving the treatment facility against staff advice, and for having contact with an
individual who was prohibited specifically by his agent,” and that the violations were
“intentional and inexcusable.” Then, the district court gave the parties an opportunity to
address disposition.
The probation agent and the state asked the district court to revoke Bowers’s
probation and to impose an executed prison sentence. According to the probation agent,
Bowers was just “skating by” on probation. He had been terminated from multiple
treatment programs —including domestic-violence treatment, chemical-dependency
treatment, and sex-offender treatment—due to his failure to attend and to make progress.
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Bowers missed probation appointments, a nd his therapists reported that he struggled to
“acknowledge areas that need to change in his life.”
Bowers asked for continued probation. He stated that he had made an “error in
judgment” and that he was willing to complete treatment.
The district court revoked Bowers’s probation, imposed an executed prison sentence
of 36 months, and ordered ten years of conditional release to follow the prison sentence.
In explaining the decision to revoke Bowers’s probation, the district court stated:
I am going to find that the need for confinement outweighs the
policies that favor probation and specifically that confinement
here is necessary to protect the public from further criminal
activity.

Your probation agent [’]s report[s] have been very
thorough, and I know you have had time to review them. The
failure to complete sex offender programming on at least two
options that were tried is concerning. The failure to complete
chemical dependency programming as well is concerning. The
agent describes the scenario or culmination of your life events
and that these types of clients are more dangerous and risky to
work with. And that the level of violence is concerning.
Specifically, in regard to a hyperactive sexual behavior.

I heard your attorney and you when you turned yourself
in. I heard you when you were clean after being out of
treatment. I heard that you want another chance. But I also
heard you say, if I knew I was going to go to prison, I would
have done something different. And sir, I certainly don’t find
that to be credible. You asked your agent to bet on you. And
when she violated you and you were held [accountable], you
then . . . showed your response when you were held
accountable. And that is not appropriate. That is not a safe
person to be in the community. And that is my ruling today.

Bowers appeals the district court’s decision to revoke his probation.
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DECISION
Bowers argues that the district court abused its discretion by revoking his probation
because the evidence did not establish that the need for confinement outweighed the
policies favoring probation. He contends that the district court should have imposed less-
restrictive sanctions to address the violations before resorting to the most extreme sanction
of incarceration.
In State v. Austin, the Minnesota Supreme Court directed district courts to consider
three factors (the Austin factors) before revoking probation and to make specific findings
on each of these factors. 295 N.W.2d 246, 250 (Minn. 1980). A 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.” Id. The third factor requires a district court to further
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 (quotation omitted). District courts must clearly 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). And district courts must be cognizant of
the fact that “the purpose of probation is rehabilitation and revocation should be used only
as a last resort [if] treatment has failed.” Id. at 606 (quotation omitted).
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“The [district] 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.” Austin, 295 N.W.2d at 249-50. But whether the district court made the
findings required to revoke probation is a question of law, which an appellate court reviews
de novo. Modtland, 695 N.W.2d at 605.
Bowers challenges the district court’s finding on the third Austin factor—that the
need for confinement outweighed the policies favoring continued probation. He notes that,
although the district court relied on the third subfactor to make that finding—determining
that confinement was necessary to protect the public from further criminal activity—the
district court did not sufficiently explain how his conduct implicated that subfactor. And
he contends that the factual circumstances did not support the district court’s finding that
confinement was necessary to prevent additional criminal activity.
To support these assertions, Bowers points out that neither of his probation
violations involved new criminal offenses or conduct that endangered public safety. But
new criminal charges or documented dangerous conduct is not required for a district court
to revoke probation. See State v. Rottelo, 798 N.W.2d 92, 95 (Minn. App. 2011) (rejecting
the argument that the district court abused its discretion by revoking probation even though
appellant had not been charged with new crimes), rev. denied (Minn. July 19, 2011). A
district court has br oad discretion to revoke probation when a probationer violates a
condition of probation. State v. Cottew, 746 N.W.2d 632, 636- 37 (Minn. 2008). And in
deciding whether revocation is appropriate, t he district court may consider the “original
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offense and the intervening conduct of the offender.” State v. Osborne, 732 N.W.2d 249,
253 (Minn. 2007).
Here, the district court considered both the original offense and Bowers’s conduct
on probation. The district court noted that the original offense involved criminal sexual
conduct and the probation agent was concerned about Bowers’s increasingly violent
conduct and “hyperactive sexual behavior” while on probation. It considered Bowers’s
inability to complete sex-offender treatment on at least two occasions and cited Bowers’s
blatant disregard for his obligations as a probationer. Although Bowers knew that his
phone calls from the jail were being recorded, he called S.S. twice in direct violation of a
no-contact probation condition. And Bowers left profane and verbally abusive messages
for his probation agent after the probation agent “held [him] accountable.” The district
court’s analysis belies Bowers’s argument that there was no meaningful consideration of
whether confinement would protect the public from further criminal activity. Moreover,
the record supports the district court’s findings regarding Bowers’s conduct.
Bowers also argues that the district court should have imposed intermediate
sanctions because rehabilitation was still possible. See Cottew, 746 N.W.2d at 637
(“Intermediate sanctions are imposed when the district court has determined that the
defendant has violated his probation but that revocation of the defendant’s probation and
execution of the underlying sentence is not appropriate, at least in part, because
rehabilitation is still possible.”). He observes, for example, that the district court had
discretion to vacate the stay of imposition and impose a stay of execution as an intermediate
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sanction. See Minn. Stat. § 609.14, subd. 3(1) (2020) (stating that, in addressing a
probation violation for a defendant who received a stay of imposition, a district court may
“again stay sentence or impose sentence and stay the execution thereof, and in either event
place the defendant on probation or order intermediate sanctions . . . or impose sentence
and order execution thereof”).
But Bowers’s argument is unpersuasive for two reasons. First, as noted, a district
court has wide discretion in determining the appropriate disposition for a probation
violation, and absent an abuse of that discretion, this court must affirm. Cottew, 746
N.W.2d at 636-37. Second, the record amply supports the district court’s finding that
incarceration would most effectively protect the public and its implicit rejection of further
community-based rehabilitation efforts. While on probation, Bowers failed to complete
domestic-violence treatment, chemical-dependency treatment, and sex-offender treatment.
He intentionally violated the conditions of probation multiple times, failed to attend
probation appointments, failed to acknowledge that he needed to change anything about
his life, and generally appeared not to take probation seriously.
Finally, Bowers seems to argue, without citing authority, that the district court
abused its discretion by not expressly considering the availability of intermediate sanctions
to address the probation violations . Because Bowers neither develops nor provides legal
support for this argument, we do not consider it. See State v. Modern Recycling, Inc., 558
N.W.2d 770, 772 (Minn. App. 1997) (“An assignment of error based on mere assertion and
not supported by any argument or authorities in appellant’s brief is waived and will not be
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considered on appeal unless prejudicial error is obvious on mere inspection.” (quotation
omitted)).
Based on our careful review of the record, we determine that the district court made
adequate findings on the three Austin factors and that the record supports those findings.
Thus, the district court acted within its discretion by revoking Bowers’s probation. See
Modtland, 695 N.W.2d at 607 -08 (stating that, if the district court made findings on the
Austin factors, and the record supports those findings, t he district court acted within its
discretion in revoking probation).
Affirmed.