State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1715

State of Minnesota,
Respondent,

vs.

Dale David Smith,
Appellant.

Filed July 10, 2023
Affirmed
Connolly, Judge

Stearns County District Court
File No. 73-CR-18-131

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
SYLLABUS
When a defendant convicted of first-degree criminal sexual conduct (penetration,
victim under 16, significant relationship, multiple acts over time) has a probation condition
of no contact with females under 18, and that defendant has repeated contact with a female
under 18, a district court does not abuse its discretion when it determines that the
defendant’s need for confinement outweighs the policies favoring probation because
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confinement is necessary to protect the public from further criminal activity by the
defendant.
OPINION
CONNOLLY, Judge
Appellant challenges the revocation of his probation and execution of his sentence,
arguing that the district court abused its discretion by failing to provide factual reasons and
providing legally incorrect reasons for the revocation. Because we see no abuse of
discretion, we affirm.
FACTS
Between 2014 and 2017, appellant Dale Smith, then in his mid-sixties, lived with
child A, then about 10 to 13 years old, and her mother. On multiple occasions, appellant
digitally penetrated, performed oral sex on, and rubbed h is genitals on Child A. In 2018,
appellant pleaded guilty to first-degree criminal sexual conduct. The presumptive sentence
was 144 months in prison; appellant intended to ask for a dispositional departure.
In accordance with the recommendation of the presentence investigation and
pursuant to appellant’s motion, the district court granted a dispositional departure and
sentenced him to the presumptive 144 months in prison, stayed, and placed him on
supervised probation for up to 30 years. As a condition of the stayed prison sentence, the
district court ordered appellant to serve 364 days in custody in 30-day segments, at 90-day
intervals. His probation conditions included completing an adult sex offender program;
having no contact with Child A.; having no unsupervised contact with females under 18;
and not owning, using, or possessing any sexually explicit materials.
3
In August 2022, a ppellant’s probation agent received a letter from CORE
Professional Services explaining why it was terminating appellant from its outpatient sex-
offender-treatment program. The first reason was that
[Appellant] has reported repeated contact with a minor female
that visits his neighbor. He reported he has contact with this
minor female when they are outside visiting. This is
concerning as [appellant] has failed to set an appropriate
boundary with this neighbor indicating he is not allowed to
have contact with [female] minors. . . . [Appellant] has engaged
in sexually abusive behavior against a prepubescent female.
Therefore, having unsupervised contact with a minor female is
extremely high risk and unsafe.

Based in part on this letter from CORE, appellant’s probation agent drafted a
probation-violation report alleging three violations of probation conditions: (1) appellant
had violated the no -contact-with-females-under-the-age-of-18 condition by having
repeated contact with a minor female who visited his neighbor, having contact with a minor
granddaughter, and being alone with a minor female on a camping trip in the summer of
2021; (2) appellant had failed to complete the adult sex offender program because he had
been terminated at CORE Professional Services for failing to work up to his abilities and
make adequate progress toward discharge; and (3) appellant had used sexually explicit
material by watching the movie Drive Angry knowing that it contained sexually explicit
material. The probation agent recommended that probation be revoked and appellant’s
sentence be executed.
At the contested revocation hearing, appellant’s probation agent testified about
appellant’s repeated unsupervised contact with the minor female who was visiting a
neighbor.
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[T]he concern lies with [appellant] having contact –
unsupervised contact with a minor female. This has been
ongoing, and that boundary was not established early on in
which [appellant] should have . . . indicated to . . . the child’s
parent that he cannot have contact with minor females. It gives
the impression that that’s grooming behavior.

. . . .

[Appellant] also reported to his treatment provider that he had
repeated contact with a minor female that visits – that resides
next to him.

. . . .

. . . [I]t would appear from a therapeutic standpoint . . .
that this is potentially grooming a victim. And the neighbor
minor appears to be about the same prepubescent age as
[appellant’s] victim, so that’s obviously concerning that . . .
this could result in further criminal activity.

When asked if appellant admitted that he knew he was not supposed to be having contact
with minor females when he was having contact with them, he answered, “Yes.”
After the hearing, the district court concluded that the state met its burden of proving
that appellant’s repeated contact with a minor female who visited his neighbor, his failure
to complete sex-offender treatment, and his use of sexually-explicit material were
intentional and inexcusable violations of his probation conditions and that the need for
appellant’s confinement outweighed the policies favoring probation. The district court
therefore revoked appellant’s probation and ordered that his sentence of 144 months in
prison be executed.
ISSUE
Did the district court abuse its discretion in revoking appellant’s probation?
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ANALYSIS
“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.2 d 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 determinations 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 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”).
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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. Therefore, district courts must make “thorough, fact-specific records” and
“seek to convey their substantive reasons for revocation and the evidence relied upon.” Id.
Appellant argues that the district court “failed to give an explicit, valid reason for
revocation,” specifically that its “finding on the third Austin factor [that the need for
confinement outweighs the policies favoring probation] is insufficient” because “the only
reason it did give was listing the number and type of violations.” We disagree. The district
court’s analysis of appellant’s probation violations demonstrates that probation, in
appellant’s case, was not an effective or reliable deterrent of further criminal activity.
Most significantly, the district court found that: (1) appellant had had “repeated
contact with a minor female that visits his neighbor”; (2) the probation agent had testified
that appellant and others in treatment had been taught that, “the first time this type of
‘unavoidable’ contact occurred, . . . they must be honest with neighbors and advise
neighbors they simply cannot have any contact with minors, thereby setting appropriate
boundaries”; (3) the probation agent’s “testimony was consistent with the representations
by CORE”; (4) the probation agent also testified “how these types of contacts readily turn
into grooming behavior when young children are involved”; (5) a ppellant “offered no
testimony/evidence that he did not know how to address this situation after the first
contact”; and (6) the probation officer’s testimony supports the finding that “the second
and subsequent contacts with the minor [female] constitute an intentional and/or
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inexcusable violation of probation.” 1 These findings support the determination that
appellant’s need for confinement outweighed the policies favoring probation because it
was necessary to protect the public from further criminal activity.
The district court also found that appellant had failed to complete sex offender
programming in almost four years on probation, relying on the letter concerning appellant’s
discharge from the CORE program; it also found that appellant had used sexually explicit
material, relying on the probation agent’s testimony that appellant admitted he knew the
movie “Drive Angry” was sexually explicit and watched it for that reason. These findings
further support the determination that appellant’s need for confinement outweighs the
policies favoring probation.
Finally, appellant objects to the district court’s statement that appellant had “three
violations, none of which are technical in nature.” He argues that his violations were
technical under Minn. Stat. § 244.196, subd. 6, defining a technical violation as “any
violation . . . except an allegation of a subsequent criminal act” and that the district court
relied on the accumulation of three of them to revoke his probation, in violation of Austin,
295 N.W.2d at 251, (“[Revocation] cannot be a reflexive reaction to an accumulation of
technical violations.”).
2

1 The district court did find that neither appellant’s contact with his minor granddaughter
nor the incident on a camping trip in 2021 had been shown to be intentional or inexcusable
and noted that they were not a basis for the revocation.
2 But Austin does not reference Minn. Stat. § 244.196, subd. 6 (2022), and Riley v. State,
792 N.W.2d 831 (Minn. 2011), reconsideration granted and denied (Minn. April 22,
2011), which appellant cites in support of the applicability of that statute, does not include
the word “technical.”
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But when the district court described appellant’s violations as “not technical in
nature,” it was observing that all appellant’s violations were relevant to the crime of which
he had been convicted, i.e., First Degree Criminal Sexual conduct — Penetration—Victim
under 16—Significant Relationship —Multiple Acts Over Time, as opposed to mere
violations of probation procedure, such as failing to meet with a probation officer or report
for a scheduled test. In contrast, all of appellant’s violations, particularly his repeated
contact with a juvenile female and his failure to establish appropriate boundaries by
notifying his neighbor that appellant was prohibited from any contact with minor females,
support the district court’s determinations that appellant’s confinement is necessary to
protect the public, Modtland, 695 N.W.2d at 607, and that his need for confinement
outweighs the policies favoring probation, Austin, 295 N.W.2d at 250.
We close with one final note. Appellant at one point states, “F or many, the result
of watching Drive Angry was a disappointing trip to the theater. For [appellant,] it’s twelve
years in prison.” We feel compelled to point out that appellant was not sent to prison for
merely watching a movie. Appellant was convicted of repeatedly raping a child. He
received probation and was ordered to have no contact with minors. He repeatedly had
contact with a minor. If there is a more textbook application of the Modtland subfactor
that confinement is necessary to protect the public from further criminal activity by
appellant, we are hard pressed to think of one.
DECISION
Because a ppellant has not shown that the district court abused its discretion in
revoking his probation on the basis of his violations of the conditions of probation, we
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affirm the revocation. Furthermore, we hold that when a defendant has been convicted of
criminal sexual conduct involving a minor and is placed on probation that includes as a
condition that the defendant have no contact with a minor, the very fact that he continues
to have contact with a minor satisfies the Austin factor that his need for confinement
outweighs the policies favoring probation.
Affirmed.