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This opinion is nonprecedential except as provided by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
A22-1291

State of Minnesota,
Respondent,

vs.

Keith Melvin Baerg,
Appellant.

Filed April 24, 2023
Affirmed
Reilly, Judge

Watonwan County District Court
File No. 83-CR-18-31

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

Stephen Lindee, Watonwan County Attorney, Travis J. Smith, Special Assistant County
Attorney, Slayton, Minnesota (for respondent)

Jacob M. Birkholz, Michelle K. Olsen, Bi rkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Reilly, Presiding Judge; Segal, Chief Judge; and Florey,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
REILLY, Judge
On appeal after re mand in this probation- revocation matter, appellant argues that
the district court erred in finding that the need for his confinement outweighed the policies
favoring continued probation under State v. Austin , 295 N.W.2d 246 (Minn. 1980) .
Because the dist rict court’s findings on the third Austin factor are supported by the record
and sufficient to justify the revocation of appellant’s probation, we affirm.
FACTS
In January 2018, respondent State of Minnesota charged appellant Keith Melvin
Baerg with first -degree criminal sexual conduct and third -degree criminal sexual conduct
in violation of Minn. Stat. §§ 609.342, subd. 1(e)(i), .344, subd. 1(c) (2016). Baerg entered
a Norgaard1 plea of guilty to third -degree criminal sexual conduct , and the district court
sentenced Baerg to 117 months in prison, stayed for 15 years. The district court placed
Baerg on probation and imposed several conditions , including that he complete sex-
offender treatment and abstain from using or possessing alcohol or illegal drugs.
In September 2019, Baerg’s probation officer filed a probation violation report,
alleging that Baerg failed to abstain from alcohol use. Baerg admitted to the violation and
the district c ourt reinstated Baerg on probation. In 2020, Baerg began sex- offender
treatment at CORE Professional Services (CORE). Under the treatment agreement, if

1 A Norgaard plea may be entered into when a defendant is unable to admit facts due to
memory loss but agrees that there is sufficient evidence for a conviction. State v. Ecker,
524 N.W.2d 712, 716-17 (Minn. 1994). At the time of his plea, Baerg asserted that he was
intoxicated the night of the offense and could not remember what happened.
3
Baerg denied the underlying offense that led him to treatment, he would need to complete
a polygraph w ithin 30 days. The agreement stated that if Baerg failed the polygraph
examination and continued to deny the offense, he would be terminated from treatment. In
addition, when he entered the program, CORE informed Baerg that he would have
treatment assignments and that he was expected to complete them and present them at
every session.
Baerg continued to deny his underlying offense and submitted to a polygraph test in
September 2020. T he polygraph indicated deception. Staff informed Baerg that if he
continued denying his offense , he would be terminated from the program. Between
February and May 2021, Baerg did not consistently complete his assignments and often
forgot to bring his workbook to the sessions. In April, Baerg’s CORE counselor informed
Baerg that continuing to miss assignments would lead to his termination from the program.
She also informed Baerg that he was behind on his bill payments and that he would be at
risk of termination f rom treatment if he did not get current.
In May 2021, CORE terminated Baerg “for failure to make adequate
progress. . . . based on his unwillingness to acknowledge his sexual offense and his failure
to consistently complete the treatment assignments.” Baerg’s probati on officer filed a
second probation violation report and the district court held two hearings, a contested
probation-violation hearing and a later disposition hearing. Baerg’s probation officer,
Baerg’s CORE counselor, and the executive director for Alpha Emergence, a different
treatment program, testified at the contested probation- violation hearing. Baerg’s CORE
counselor testified about Baerg’s lack of progress during treatment. The counselor testified
4
that CORE terminated Baerg from its program “[b]ased on the presentation of the
assignment[s] and the defense mechanisms he was using and the ongoing denial of the
offense.”
At the disposition hearing, the state asked the district c ourt to execute Baerg’s
sentence, arguing that Baerg’s attitude about his offense had not changed while on
probation and he twice violated probation. Counsel for Baerg argued that Baerg had a
desire to complete treatment a t Alpha Emergence because it was a better fit for him . He
asked the court to allow Baerg to stay on probation to complete treatment there.
The district court revoked Baerg’s probation, finding that Baerg violated his
probationary conditions by failing to complete sex- offender treatment, the violation was
intentional and inexcusable, and the need for confinement outweighed the policies favoring
probation. Baerg appealed the district court’s decision arguing, in part, that the district
court failed to make adequate findings on the three Austin factors. This court determined
that the district court made adequate findings on the first and second Austin factors but di d
not make adequate findings on the third . We reversed and remanded for further
proceedings. State v. Baerg, No. A21-1517, 2022 WL 3581314, at *6 (Minn. App. Aug.
22, 2022) (Baerg I).
Following remand from this court, the district court held a hearing to make findings
on the third Austin factor. The district court noted that it would make findings based on
the existing record but would allow the parties to make arguments. Counsel for Baerg
asserted that the need for confinement did not outweigh policies favoring probation
because Baerg had been accepted into the Alpha Emergence treatment program, had no
5
violent offenses while on probation, did not have continuing problems with alcohol, the
underlying offense involved a single victim, and Baerg did not have an underlying history
of criminal-sexual-conduct offenses. Counsel asked the district court to reinstate Baerg on
probation and allow him to attend Alpha Emergence.
The district court determined that confinement was “necessary to protect the public
from further criminal activity by the offender” because the reasons for Baerg’s offense
were “drinking and criminal s exual behavior.” The district court found that Baerg first
violated probation by drinking alcohol, and then he further violated probation by failing to
complete sex-offender treatment. The district court also determined that “it would unduly
depreciate t he seriousness of the violation if probation were not revoked .” The district
court noted that after Baerg violated probation the first time, the district court gave him
another chance and “he didn’t take advantage of that other chance.” The district cour t
found that revocation was appropriate and necessary because Baerg failed to complete sex-
offender treatment wh ile on probation for a criminal-sexual-conduct offense.
This appeal follows.
DECISION
Baerg challenges the district court’s order revoking his probation. “A 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.’” State v. Modtland, 695
N.W.2d 602, 605 (Minn. 2005) (quoting Austin, 295 N.W.2d at 249-50). Before revoking
probation, the district court must make three findings: (1) “designate the specific condition
or conditions that were violated,” (2) “find that the violation was intentional or
6
inexcusable,” and (3) “find that [the] need for confinement outweighs the policies favoring
probation.” Austin, 295 N.W.2d at 250. These factors, known as the Austin factors, require
district courts to “seek to convey their substantive reasons for revocation and the evidence
relied upon.” Modtland, 695 N.W.2d at 608. “This process prevents courts from
reflexively revoking probation when it is established that a defendant has violated a
condition of probation.” Id. We review de novo whether a district court ha s made the
necessary findings under Austin. Id. at 605.
In Baerg I, we determined that the district court’s findings were adequate on the
first and second Austin factors to support revocation of his probation but that the district
court’s findings on the third factor were inadequate. 2022 WL 3581314, at *4. Thus, we
focus our analysis here on the third Austin factor. The third Austin factor requires the
district court to make a finding that the need for confinement outweighs the policies
favoring probation. Austin, 295 N.W.2d at 250. The district court may find that the need
for confinement outweighs the policies favoring probation if at least one of these three
subfactors is met: (1) that “confinement is necessary to protect the public from further
criminal activity by the offender,” (2) that “the offender is in need of correctional treatment
which can most effectively be provided if he is confined,” or (3) that another stay of the
sentence “would unduly depreciate the seriousness of the violation.” Modtland, 695
N.W.2d at 607 (quoting Austin, 295 N.W.2d at 251). The district court “must balance the
probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and
the public safety.” Id. at 606-07 (quotation omitted). The district court must also consider
7
that “[t]he purpose of probation is rehabilitation and revocation should be used only as a
last resort when treatment has failed.” Austin, 295 N.W.2d at 250.
On appeal, Baerg argues that the district court again failed to make sufficient
findings on the third Austin factor.2 We disagree and conclude that the district court’s
findings on the third Austin factor are adequate to support the revocation of Baerg’s
probation.
The district court found that the first and third Modtland subfactors were satisfied.
For the first subfactor, the district court explained that confinement was necessary to
protect the public from further criminal activity because Baerg’s offense involved alcohol
use and criminal sexual behavior , and Baerg’s probation violations involved drinking
alcohol and failing to complete sex- offender treatment. The district court reasoned that
Baerg is “a convicted sex offender who drank while he was on probation, when drinking
was a contributing factor to the underlying offense” and that Baerg “hasn’t addressed the
underlying criminal sexual behavior.” The district court found that the combination of the
drinking violation with the failure to complete sex- offender treatment created “a public
safety interest.”
As to the third Modtland subfactor, t he district court determined that “it would
unduly depreciate the seriousness of the violation if probation were not revoked,” because

2 Baerg also argues that the district court erred by failing to comply with Minn. R. Crim.
P. 27.04 because it did not create written findings of fact summarizing the evidence it relied
on after the hearing. This argument lacks merit. The district court stated its findings and
reasons on the record, which und er Modtland is enough to permit review. 695 N.W.2d at
608 n.4.
8
Baerg “had two significant opportunities to not go to prison and he didn’t take advantage
of those.” First, Baerg receiv ed a downward dispositional departure. Second, the district
court reinstated Baerg on probation after his first violation for drinking alcohol. The
district court found that Baerg “didn’t take advantage of the original plea offer and he didn’t
take advan tage of the Court giving him that second opportunity.” The district court
reasoned that if it “were to continue to give [Baerg] a chance again for not completing sex
offender treatment when he’s on probation for a sex offense, that would seriously
depreciate the seriousness of the violation because he got an opportunity.”
Baerg argues that the district court’s findings lack evidentiary support and fail to
explain how the probation violations created a risk to public safety. He contends that the
district court’s finding that he has not addressed the underlying criminal sexual behavior is
clearly erroneous because he was “actively engaged in treatment” and is willing to
participate in treatment. He also argues that the district court erred by considering his
violation for drinking because it occurred two years prior and no longer presented a risk to
public safety. We do not agree.
The record amply supports the district court’s determination that confinement is
necessary to protect the public from further criminal activity. Baerg is an untreated sex
offender who demonstrated an unwillingness to participate in sex- offender treatment : he
did not regularly attend treatment sessions, failed to complete required assignments,
continued to deny his underlying offense, and denied issues with alcohol. See Baerg I ,
2022 WL 3581314, at *4 (concluding that “there is ample record evidence that Baerg was
not satisfactorily completing the treatment program and lacked the intent to complete it”).
9
As the district court correctly noted, Baerg is a convicted sex offender whose underlying
offense involved heavy alcohol use. And Baerg’s two probation violations included the
failure to complete sex -offender treatment and the use of alcohol. The district court
properly conveyed its reasonings as required by Modtland and the record supports the
findings. Thus, the district court did not abuse its discretion when it found that
“confinement is necessary to protect the public from further criminal activity.”
Although the district court only needs to make findings on one Modtland subfactor,
the district court also found that it would unduly depreciate the seriousness of the violation
if probation were not revoked because Baerg had a chance to complete sex -offender
treatment and failed to do so. Baerg argues that this probation violat ion “is a technical
violation and not as serious as the trial court states it is.” He asserts that the C ORE
treatment program was not the right fit, that he was willing to participate in Alpha
Emergence, and the district court should have allowed him to do so. Again, we are not
persuaded.
Baerg was granted a downward dispositional departure to allow him to complete a
sex-offender-treatment program. See 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”). Baerg was not engaged in his
treatment program and, ultimately, was terminated before completing a sex -offender-
treatment program. While Baerg now argues that he would have had more success at a
different program, district courts have “broad discretion in determining if there is sufficient
evidence to revoke probation” and are not prohibited from revoking probation even if
10
alternative treatment options exist. Austin, 295 N.W.2d at 249. The district court
adequately conveyed its reasoning for finding that it w ould unduly depreciate the
seriousness of the violation if probation were not revoked, and the district court’s reasoning
is supported by the record . Baerg had a chance to complete sex-offender treatment and
failed to do so. Thus, the district court did not abuse its discretion in revoking Baerg’s
probation.
Affirmed.