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This opinion is nonprecedential except as provided by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
A22-1647

State of Minnesota,
Respondent,

vs.

Brandon William Soular,
Appellant.

Filed May 22, 2023
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-19-8686

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

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges the revocation of his probation, arguing that the district court
abused its discretion because its conclusions supporting the revocation were illogical and
conflicted with the record. We affirm.
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FACTS
Appellant Brandon Soular engaged in electronic communication relating to sexual
conduct with A., then 11, in 2016. In 2018, appellant, then 25, met B., then 14. In 2019,
appellant possessed videos of pornographic work involving B., who was then 15. He was
charged with and pleaded guilty to engaging in electronic communication relating to sexual
conduct with a child (count one) and possessing electronic pornographic work involving a
minor (count two), after admitting that he had asked if he could watch A. masturbate and
that he possessed videos of B. masturbating.
The district court stayed imposition of sentence and placed appellant on probation
for three years with conditions including: (1) no contact with minors and vulnerable adults,
(2) no contact with A. or B., (3) no access to or use of internet without his probation
officer’s approval, and (4) completion of sex-offender treatment programming.
Appellant remained in contact with B., who turned 18 in November 2021. In
February 2022, he was required to transition from outpatient to residential sex offender
treatment because of this contact, but he continued to maintain contact with B. while in
treatment.
Appellant’s probation officer initiated revocation proceedings based on a report
alleging that appellant had a work cell phone without the probation officer’s knowledge,
that appellant had maintained contact with B. after having been repeatedly told to stop
contacting her, and that he failed to complete sex-offender treatment. At the probation-
violation hearing in July 2022, B. testified that she was then 18 and she loved appellant,
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wanted and consented to their relationship, and sought couples therapy for the two of them.
She also testified that she had not had contact with appellant since August 2019.
The district court “did not find her testimony to be credible,” revo ked the stay of
imposition, and imposed a sentence of 20 months in prison with a five-year term of
conditional release. Appellant challenges the revocation, arguing that it was an abuse of
discretion because B. told the district court that she wants to be in a relationship with
appellant.
DECISION
“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.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980). But we review de
novo whether the district court made the required findings to revoke probation. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
A district court must consider and make specific findings on the three Austin factors
before revoking probation. See 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.
When analyzing the third Austin factor, district courts must balance “the
probationer’s interest in freedom and the state’s interest in insuring his rehabilitation and
the public safety.” Id. To make a finding on the third Austin factor, a district court weighs
the three “Modtland subfactors”: whether (1) “confinement is necessary to protect the
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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
subfactor 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”).
District courts “should not assume that they have satisfied Austin by reciting the
three factors and offering general, non-specific reasons for revocation.” Modtland, 695
N.W.2d at 608. Probation revocation “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 (quotations omitted). Moreover, a district court must be mindful that the purpose of
probation is rehabilitation and that revocation should be a last resort. Modtland, 695
N.W.2d at 606. Therefore, district courts must make “thorough, fact-specific records” and
“seek to convey their substantive reasons for revocation and the evidence relied upon.” Id.
at 608.
The district court here found that, as to the Austin factors, (1) appellant’s probation
violations included accessing the internet without approval, failing to inform probation that
he had a work cell phone, maintaining contact with B., and failing to complete sex-offender
programming; (2) the violations were intentional and inexcusable because appellant
admitted them to his probation officer and to providers at the treatment center,
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communicated with B. even while he was in residential treatment, did not tell his probation
officer about the phone he used to communic ate with B., and knew the conditions of his
probation; and (3) the need for appellant’s confinement outweighed the policies favoring
probation. As to the Modtland subfactors, it found that: (1) appellant remains high-risk as
an untreated sex offender, (2) it is likely that appellant would reoffend by having a
relationship with B. if placed on probation again, (3) appellant has continued in the conduct
that his treatment was intended to address, (4) appellant does not appreciate the seriousness
of his offense, (5) appellant lied to his probation officers and the treatment providers, (6)
appellant’s re-admission to treatment is not guaranteed, (7) appellant was resistant to
treatment and is not accountable for his offense, and (8) treatment in the community would
be unproductive for appellant.
Appellant does not refute these findings. He admits in his brief that, throughout his
time on probation, B. “met [a]ppellant at his apartment where they talked outside, hugged,
and professed their undying love for one another,” and they connected by playing video
games when they could not be together. He argues that the findings do not support
revocation because “[t]here was no rational connection between [a ]ppellant’s failure to
rebuff the romantic advances of a willing partner and the [district] court’s conclusory
assessment that their relationship presented a risk to the public and constituted a rejection
of rehabilitative programming in the community.”
But the fact that B., now 19, says she wants to be in a romantic relationship with
appellant does not alter the facts that, at the time of the offense, i.e., his possession of the
video of her, she was a minor; the sentence imposed for that offense was stayed and he was
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put on probation; he violated the conditions of his probation by maintaining contact with
B., having a phone without reporting it, and not completing sex offender treatment; he
continued to offend by maintaining contact with B.; and he gave the district court no reason
to believe he would not maintain contact with B. if he were not in prison.
Contrary to appellant’s argument, the fact that B. is no longer a minor is irrelevant.
Appellant argues that “[his] consensual contact with [B] did not pose a risk to the public
because she was old enough to consent to sex. The age of sexual consent in Minnesota is
16.” But when appellant committed the crime for which he was sentenced, B. was not 16
and could not consent. She cannot now retroactively consent to the crime. Moreover, her
desire to have contact with appellant does not alter the fact that a ppellant violated his
probation: appellant was ordered not to have contact with B. and he did in fact have contact
with her.
Affirmed.