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This opinion is nonprecedential except as provided by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
A24-0039

State of Minnesota,
Respondent,

vs.

Mark David Nasi,
Appellant.

Filed August 26, 2024
Affirmed
Harris, Judge

St. Louis County District Court
File No. 69DU-CR-20-615

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

Kimberly J. Maki, St. Louis County Attorney, Jon D. Holets, Deputy St. Louis County
Attorney, Duluth, Minnesota (for respondent)

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

Considered and decided by Harris, Presiding Judge; Bratvold, Judge; and Cleary,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HARRIS, Judge
Appellant challenges the revocation of his probation, arguing that the district court
abused its discretion by revoking probation because the record does not establish that the
need for confinement outweighed the policies favoring probation. Because the district
court made sufficient findings supported by the record, we affirm.
FACTS
In February 2020, respondent State of Minnesota charged appellant Mark David
Nasi with first-degree criminal sexual conduct involving sexual penetration of a child under
the age of 13. The complaint alleged that in October 2018, Nasi was intoxicated and
sexually assaulted his four-year -old daughter while she was in his care. Nasi entered a
Norgaard plea1 in exchange for a downward dispositional departure. During the plea
hearing, Nasi testified that he did not remember what happened because he was under the
influence of alcohol during the offense. Nasi agreed that if the matter proceeded to trial
there was a substantial likelihood that he would be found guilty based on the state’s
evidence.
In April 2021, the district court imposed a 144-month sentence with ten years of
conditional release. Pursuant to the plea agreement, the district court stayed execution of

1 In a Norgaard plea, “the defendant asserts an absence of memory on the essential
elements of the offense but pleads guilty because the record establishes, and the defendant
reasonably believes, that the state has sufficient evidence to obtain a conviction.” Williams
v. State, 760 N.W.2d 8, 12 (Minn. App. 2009), rev. denied (Minn. Apr. 21, 2009); see also
State ex rel. Norgaard v. Tahash, 110 N.W.2d 867, 871-72 (Minn. 1961).
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the sentence and placed Nasi on probation for three years. The district court determined
that Nasi was particularly amenable to probation and sex-offender treatment.
In March 2022, the probation officer filed a probation-violation report alleging that
Nasi violated probation by failing to abstain from using alcohol, failing to complete an
updated rule 25 evaluation, and failing to participate in and complete sex- offender
treatment. The probation-violation report alleged that Nasi admitted to drinking alcohol
on three occasions, and two of the incidents involved police contact due to Nasi’s behavior
while intoxicated. The probation- violation report also alleged that Nasi was terminated
from sex-offender treatment due to substance abuse. Following a contested-revocation
hearing, the district court ordered Nasi to serve one year at Northeast Regional Corrections
Center (NERCC) to complete sex-offender and substance-use programming, and extended
Nasi’s probation for a total of five years.
In October 2023, the probation officer filed a second probation-violation report
alleging that Nasi violated probation by failing to abstain from using alcohol. The
probation-violation report alleged that Nasi was intoxicated at a hotel and the hotel clerk
called police to have Nasi removed from the hotel. Nasi was “extremely uncooperative,
kicking/punching the interior of [the] squad and ripped [the] light from the ceiling of the
squad.” The fire department transported Nasi to the hospital on an emergency hold.
Nasi admitted the probation violation. Specifically, Nasi admitted he used alcohol
to the point of intoxication, he did not follow the recommendations of the chemical-
dependency evaluation, he did not avail himself to all the resources in the community, and
his alcohol use impacted his ability to participate in sex-offender treatment.
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At a contested-disposition hearing, Nasi’s counsel informed the district court that
Nasi completed an updated chemical-use assessment and argued for Nasi to be released
from custody directly to a high intensity residential-treatment program as soon as a bed
was available. The state and probation argued that Nasi’s probation should be revoked due
to his ongoing use of alcohol and high risk to public safety.
The district court agreed with the state and probation and determined that Nasi was
“incredibly dangerous” when drinking, that Nasi had not accepted responsibility for the
damage he caused when drinking, that “it has not shown itself to be true” that Nasi is
particularly amenable to probation and sex-offender treatment, and that “the public is not
safe when [Nasi is] out and untreated . . . and drinking.” When addressing Nasi, the district
court stated, among other comments, “I could not, in good conscience, let you go and hurt
someone again, and hurt someone different potentially in any of the ways that people do
things when they lose complete control of themselves because of alcohol.” The district
court revoked probation and executed the stayed 144-month sentence. Nasi appeals.
DECISION
Nasi argues the district court abused its discretion by revoking probation because
the record does not support that the need for confinement outweighed the policies favoring
probation. We disagree.
Before a district court may revoke probation, it must: (1) identify the condition that
was violated; (2) find that the violation was intentional or inexcusable; and (3) find that the
need for confinement outweighs the policies favoring probation. State v. Austin, 295
N.W.2d 246, 250 (Minn. 1980). “The [district] court has broad discretion in determining
5
if there is sufficient evidence to revoke probation” and this court will reverse “only if there
is a clear abuse of that discretion.” Id. 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. Fortner, 989 N.W.2d 368, 374 (Minn. App. 2023) (quotation
omitted).
Nasi challenges the third Austin factor— whether the need for confinement
outweighs the policies favoring probation. When analyzing this factor, the district court
“must balance the probationer’s interest in freedom and the state’s interest in insuring his
rehabilitation and the public safety.” State v. Modtland, 695 N.W.2d 602, 606-07 (Minn.
2005) (quotation omitted). Specifically, the district court must find that one of the
following subfactors is met: (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 he 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; see also State v. Smith, 994 N.W.2d 317, 320 (Minn. App. 2023) (“Only
one Modtland subfactor is necessary to support revocation.”).
First, Nasi argues that the record does not show that confinement is necessary to
protect the public from further criminal activity. Nasi argues that the “only probation
violation was for consumption of alcohol” and “[t]here is no indication that the probation
violation found created a need to protect the public from [Nasi] committing further criminal
acts.” In determining that this factor was met, the district court stated, “the primary purpose
of confinement when we are talking about a sentence to prison is incapacitation or keeping
6
other people safe, because you are not able to damage them.” And the district court
determined that Nasi is “incredibly dangerous” when drinking alcohol. The record
supports the district court’s determination that the public is at risk when Nasi is using
alcohol. Nasi committed the underlying offense while under the influence of alcohol.
Further, the underlying probation violation involved police contact due to Nasi’s behavior
while intoxicated in the community, and Nasi’s alcohol use continuously prevented him
from engaging in sex-offender treatment.
Second, Nasi argues that the district court abused its discretion because Nasi
completed an updated chemical -use assessment that recommended high intensity
residential treatment, and “revocation should be used only as a last resort when treatment
has failed.” Modtland, 695 N.W.2d at 606 (quoting Austin, 295 N.W.2d at 250). Although
Nasi still had treatment options available in the community, the Minnesota Supreme Court
has held that it is not unreasonable to conclude treatment has failed when a probation
offender failed to take advantage of treatment opportunities or “show a commitment to
rehabilitation.” Austin , 295 N.W.2d at 251. The district court made a similar finding,
stating, “you were given the opportunity to avail yourself of lots of different treatment
options, and you didn’t do it. That’s why you’re going to prison and I want to make it
crystal clear.” The district court also stated,
you’ve had a lot of opportunity to work on how you were going
to manage fixing and addressing it, and you have not been . . .
willing to do it. You do as much as you can to try to get to
wherever, and then . . . you don’t accept responsibility for the
damage . . . that you’ve done. So I cannot, in good conscience,
place you back on probation with . . . what has happened.

7
The district court also found that Nasi failed to begin sex-offender treatment after he was
released from local confinement. These findings are supported by the record. The record
shows that, at the time of the disposition hearing, Nasi was not engaged in sex-offender
treatment and relapsed after a prolonged period of sobriety following substantial treatment
at NERCC and in the community, which hindered his ability to engage in sex -offender
treatment.
Third, Nasi argues that it would not unduly depreciate the seriousness of the
violation if Nasi’s probation were not revoked. Nasi argues that he had high intensity
treatment available in the community and the district court could have addressed the
seriousness of the violation by imposing intermediate sancti ons. However, the district
court has broad discretion in determining whether to impose intermediate sanctions or
revoke probation. State v. Cottew, 746 N.W.2d 632, 637-38 (Minn. 2008). And the district
court may consider the probationer’s original offense and intervening conduct, and a prior
“grant of a downward dispositional departure when deciding whether to revoke probation.”
Austin, 295 N.W.2d at 251; State v. Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015),
aff’d on other grounds, 883 N.W.2d 790 (Minn. 2016). The district court addressed this
factor when it found that Nasi is no longer amenable to probation and noted that the
presumptive sentence on the underlying offense was 144 months in prison. The district
court stated,
and the reality is, the presumptive sentence on this was 144
months with the Commissioner of Corrections because of the
things that you . . . did at the time that you did them, and you
pled guilty. And I recognize that you did that not remember[]
what was happening, because you were in a blackout state, but
8
also, I would expect that you should recognize that the
evidence was pretty substantial, which is why I suspect that
you did that. You had the opportunity to prove yourself that
you were going to be able to be supervised, and safe, to the
public, and you haven’t done it.

In sum, “[t]he ultimate decision whether to order revocation and imprisonment lies
solely within the district court’s discretion.” Fortner, 989 N.W.2d at 377. The record
demonstrates that revoking probation was not a “reflexive reaction to an accumulation of
technical violations.” Austin, 295 N.W.2d at 251 (quotation omitted). Instead, the district
court carefully considered Nasi’s alcohol use and his ability to successfully engage in
treatment in the community alongside the risk he posed to public safety. See Fortner, 989
N.W.2d at 376-77 (concluding that district court did not abuse its discretion when it
revoked probation after having previously granted departure because treatment failed and
not revoking probation would unduly depreciate seriousness of violation, even when
community treatment was available). And the district court clearly conveyed its reasons
to revoke probation on the record. See Modtland, 695 N.W.2d at 608 (stating that before
revoking probation, district court must “create [a] thorough, fact-specific [record] setting
forth [its] reasons for revoking probation,” and “must seek to convey [its] substantive
reasons for revocation and the evidence relied upon”). Therefore, the district court did not
abuse its discretion when it revoked Nasi’s probation.
Affirmed.