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This opinion is nonprecedential except as provided by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
A23-1875

State of Minnesota,
Respondent,

vs.

Rajiv Thomas Kjorsvig,
Appellant.

Filed July 15, 2024
Affirmed
Worke, Judge

St. Louis County District Court
File No. 69VI-CR-16-799

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

Kimberly J. Maki, St. Louis County Attorney, Bonnie Norlander, Assistant County
Attorney, Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schmidt, Presiding Judge; Worke, Judge; and Harris ,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges the revocation of his probation, arguing that the district court
abused its discretion by determining that the state showed that (1) he violated the terms of
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his probation, (2) his violations were intentional and inexcusable, and (3) the need for
confinement outweighed policies favoring probation. We affirm.
FACTS
In 2018, appellant Rajiv Thomas Kjorsvig pleaded guilty to first-degree criminal
sexual conduct and received a stay of adjudication and five years of supervised probation.
Kjorsvig indicated that he understood and agreed to follow all probationary conditions,
including completing a psychosexual evaluation.
In June 2020, a probation-violation report alleged that Kjorsvig failed to report to
probation as directed and failed to complete a sex-offender treatment program. Kjorsvig
admitted to the violation and his probation was continued. He was required to serve one
year in jail or at North East Regional Corrections Center (N ERCC) and that he enter and
complete sex-offender treatment programming while at NERCC.
In March 2022, a second probation-violation report alleged that Kjorsvig was
charged with several new offenses and also violated the no-use provision of his probation
by consuming a six pack of beer. Kjorsvig admitted the violations, and the district court
entered judgment of conviction and stayed imposition of the sentence. Kjorsvig was also
required to register as a predatory offender and remain in custody until a chemical -
dependency evaluation was completed.
In July 2022, Kjorsvig’s sentence was amended to require him to serve 45 days at
NERCC to complete chemical-dependency treatment. He was released from NERCC on
July 28, 2022.
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On October 17, 2022, a third probation-violation report alleged that Kjorsvig failed
to: (1) report to his probation officer as directed, (2) enter outpatient chemical-dependency
treatment as recommended upon his completion of his chemical-dependency treatment at
NERCC, and (3) enter and participate in sex-offender treatment.
At a contested hearing on August 29, 2023, the district court heard testimony from
Kjorsvig and his probation officer regarding each of the three alleged violations. First, the
probation officer testified that Kjorsvig attempted to contact her, but his attempts were after
hours or on the wrong day. When she tried to contact him, she could not reach him or leave
a voicemail. Second, the probation officer testified that Kjorsvig never set up the
recommended chemical-dependency-treatment aftercare. Third, both the probation officer
and Kjorsvig testified that he did not reengage with sex-offender treatment as required.
The district court found that the state proved by clear and convincing evidence that
Kjorsvig violated probation, that those violations were intentional and inexcusable, and
that the need for confinement outweighed the policy interests in favor of probation. The
district court also explicitly found that the probation officer’s testimony was credible and
that Kjorsvig’s was not.
The district court revoked Kjorsvig’s probation and imposed and executed a 144-
month prison sentence. This appeal followed.
DECISION
Kjorsvig argues that the district court abused its discretion by revoking his
probation.
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Before a district court may revoke probation, it must find that: (1) the probationer
violated a specific condition of 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 these findings, the 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).
Although a district court must make the necessary findings on the Austin factors to
revoke 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.” Austin, 295 N.W.2d 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.” State v. Lopez, 988 N.W.2d 107, 122 (Minn. 2023) (quotation omitted).
Kjorsvig challenges the district court’s findings on each of the Austin factors, which
we address in turn.
Probation violations
Kjorsvig argues that the district court abused its discretion by determining that the
state presented clear and convincing evidence that he violated the terms of his probation.
The district court determined that the state proved by clear and convincing evidence
that Kjorsvig violated probation by failing to attend required chemical -dependency and
sex-offender treatment after his release. First, the district court determined that Kjorsvig
failed to follow the recommendations from his chemical -dependency assessment for
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treatment. The probation officer testified that Kjorsvig failed to comply with the
recommended treatment. And Kjorsvig testified that he did not contact the treatment
provider after he was released. In finding that Kjorsvig failed to participate in sex-offender
treatment, the district court highlighted that the probation officer’s testimony and discharge
summary from the sex-offender treatment provider support that Kjorsvig failed to complete
treatment and again, Kjorsvig testified that he did not complete the treatment after his
release.
Based on our careful review of the record, we conclude that the record supports the
district court’s findings that Kjorsvig failed to complete the required treatment. The
evidence in the record —including Kjorsvig’s own testimony—shows that he failed to
participate in and complete the required treatment.
Intentional or inexcusable
Second, Kjorsvig argues that the district abused its discretion by determining that
the state presented clear and convincing evidence that his probation violations were
intentional and inexcusable.
Before revoking probation, the district court must find that the state proved by clear
and convincing evidence that the probation violations were “intentional or inexcusable.”
State v. Cottew, 746 N.W.2d 632, 636 (Minn. 2008) (quotation omitted). “A violation is
mitigated [when] it was unintentional or excusable.” Id.
Kjorsvig argues that the record does not support that his violations were intentional
or inexcusable because they were technical in nature. See Austin, 295 N.W.2d at 251
(providing that district court’s decision to revoke probation cannot be a “reflexive reaction
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to an accumulation of technical violations”). This argument is unavailing. In support,
Kjorsvig claims that his own testimony shows that his violations were technical in nature
and unintentional. However, the district court did not find his testimony to be credible and
we defer to the district court’s credibility determinations. See State v. Losh, 694 N.W.2d
98, 102 (Minn. App. 2005), aff’d, 721 N.W.2d 886 (Minn. 2006).
Kjorsvig next contends that the district court “did not issue a written order and it did
not specify why it found the violation intentional and inexcusable rather than the result of
repeated technical violations or the whim of the judge’s will.” However, the district court
explained at the hearing and in its written order the evidentiary and legal basis for its
conclusions. Kjorsvig does not show how the district court acted reflexively. See Austin,
295 N.W.2d at 251. In fact, our review of the record indicates that the district court
thoroughly and carefully explained its reasoning and conclusions based on the evidence in
the record at every stage of this proceeding.
Confinement outweighs probation
Third, Kjorsvig contends that the district court abused its discretion by determining
that the need for his confinement outweighed policies favoring probation.
The third Austin factor requires the district court to “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 (quotation omitted). When analyzing this factor,
district courts consider three subfactors (the Modtland subfactors): (1) whether
“confinement is necessary to protect the public from further criminal activity”; (2) if “the
offender is in need of correctional treatment which can most effectively be provided if he
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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). “Only one
Modtland subfactor is necessary to support revocation.” State v. Smith, 994 N.W.2d 317,
320 (Minn. App. 2023), rev. denied (Minn. Sept. 27, 2023).
The district court determined that the need for confinement outweighed the policies
favoring probation because treatment can be more effectively provided for Kjorsvig while
he is confined, and it would depreciate the severity of his violations if his probation were
not revoked.
Kjorsvig first argues that he has been “largely compliant” with the terms of his
probation. Again, in making this argument, Kjorsvig relies on his own testimony about the
conditions of his probation and the violations, which the district court did not find credible.
See Losh, 694 N.W.2d at 102. Moreover, the record belies this assertion. Though Kjorsvig
did not violate his probation between his conviction in 2017 and his first violation in 2020,
he has violated his probation three times since and the violation report triggering this
revocation proceeding included three separate violations.
Kjorsvig next contends that the district court abused its discretion by revoking his
stay when it was not necessary. Kjorsvig relies on Austin¸ in which the supreme court
cautioned district courts against revoking probation as “a reflexive reaction to an
accumulation of technical violations” or a decision based on “their will” rather than “sound
judgment.” 295 N.W.2d at 251 (quotation omitted).
Our careful review of the record indicates the opposite. As explained previously,
the record does not support that Kjorsvig’s violations were technical in nature. And the
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district court’s handling and consideration of this case was exemplary in many ways—it
issued multiple continuances for Kjorsvig to obtain his choice of counsel, to allow the
parties to obtain further helpful evidence, and to weigh the arguments and review the
evidence independently outside of court. At each hearing, the district court’s sound
judgment was further demonstrated by the time it spent summarizing what had happened
previously in great detail, hearing from the state, Kjorsvig’s counsel, and Kjorsvig on each
issue, stressing the importance of these proceedings to Kjorsvig’s life, and explaining each
of its decisions. Thus, we disagree that the district court failed to “take care” with its
decision to revoke Kjorsvig’s probation on this record.
In sum, the district court did not abuse its discretion in its weighing of the three
Austin factors and by revoking Kjorsvig’s probation.
Affirmed.