State of Minnesota v. Ryan Emmett Moore

This opinion is nonprecedential except as provided by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
A23-1258

State of Minnesota,
Respondent,

vs.

Ryan Emmett Moore,
Appellant.

Filed April 22, 2024
Affirmed
Reyes, Judge

Pope County District Court
File No. 61-CR-19-106

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

Neil Nelson, Pope County Attorney, Glenwood, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ede, Presiding Judge; Reyes, Judge; and Larson, Judge.

NONPRECEDENTIAL OPINION

REYES, Judge

Appellant argues that the district court abused its discretion by revoking his

probation after determining that the need for confinement outweighed the policies favoring

probation. We affirm.
 FACTS

In September 2020, appellant Ryan Emmett Moore pleaded guilty to soliciting to

engage in sexual conduct through electronic communications with someone he reasonably

believed to be a child under Minn. Stat. § 609.352, subd. 2a(1) (2018). The district court

ordered that the Minnesota Department of Corrections prepare a presentence investigation

(PSI) report and that appellant complete a psychosexual assessment prior to sentencing.

Appellant’s PSI report, which incorporated findings from the psychosexual

assessment, stated that appellant has a long criminal history, he is “an untreated level 3

sexual offender,” his “predation is of immense community concern,” and his behavior

“represents a clear and convincing public safety risk.” The PSI report recommended that

appellant receive a stay of execution of sentence and be placed on supervised probation for

three years. It also recommended that he complete “inpatient group sexual offender

treatment” and abstain from using or possessing “alcohol or controlled substances” based

on the psychosexual assessment noting that their use would “impede [appellant’s ability]

to progress in sex offender treatment” by increasing his impulsivity and impairing his

judgment. The psychosexual assessment concluded that, under various sex-offender

screening assessments, appellant was a “well above average risk,” a “[h]igh priority for

sexual and violence recidivism,” and “a [h]igh priority for general criminal recidivism.”

The examiners noted that appellant had never completed sex-offender treatment because

of his self-reported “failure to abide by rules and conditions of supervision.”

In April 2021, the district court accepted appellant’s guilty plea, sentenced him to

25 months in prison, and stayed execution for three years subject to placing him on

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supervised probation. Appellant’s probation conditions included that he complete the

outpatient 1 sex-offender treatment program at CORE Professional Services (CORE),

abstain from using or possessing unprescribed alcohol or drugs, and submit to random drug

testing.

In September 2022, appellant’s corrections agent filed a probation-violation report,

alleging that appellant had tested positive for amphetamines; admitted to smoking

methamphetamine; and that CORE had terminated appellant from treatment because of his

failure to abstain from methamphetamine use, attend therapy sessions, or progress

adequately with treatment. The report stated that “[appellant’s] use of mood-altering

chemicals is a significant concern, as he acknowledged all his sexual offenses were

committed while he was under the influence.”

The district court held a probation-violation hearing, at which appellant admitted to

the violations. At his disposition hearing, the state presented testimony from CORE’s

clinical director, who was also one of the examiners who completed appellant’s

psychosexual assessment, and appellant’s corrections agent. Both explained that

appellant’s assessments scored him at the highest risk level to reoffend, and CORE’s

clinical director opined that appellant was not amenable to treatment programming in the

community.

Appellant also presented testimony from several witnesses. Appellant’s

dispositional advisor testified on appellant’s behalf. Appellant’s mother testified that she

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The district court required appellant to undergo outpatient treatment because he could not
afford inpatient treatment.

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has leukemia, that appellant is her caregiver, and that he had missed a couple of his CORE

therapy sessions due to factors outside of his control. Appellant also testified that CORE

did not meet his needs but that he thought he could be successful at another program if

given another chance. The district court ordered appellant to serve 150 days in jail and

reinstated his probation, adding the conditions that appellant enter an outpatient sex-

offender treatment program within 45 days of his release and that he could not miss more

than one therapy session per month.

Appellant began attending a different outpatient sex-offender treatment program,

Project Pathfinder, in January 2023. However, in May 2023, appellant’s corrections agent

filed a second probation-violation report after appellant tested positive for

methamphetamine.

The district court held a second probation-violation hearing, during which appellant

admitted to the violation. The state relied on the testimony presented at the first disposition

hearing to support its request that the district court execute appellant’s sentence.

Appellant’s corrections agent also testified and reiterated his prior testimony that appellant

presented a high risk to reoffend but acknowledged that the only violation appellant had

committed since the last hearing was the methamphetamine use. Appellant testified that

he was otherwise doing well with his sex-offender treatment program and that his mother’s

deteriorating health supported the district court giving him another chance.

The district court revoked appellant’s probation and executed his sentence. This

appeal follows.

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 DECISION

Appellant argues that the district court abused its discretion by revoking his

probation because (1) it failed to weigh the policies favoring probation and (2) the record

does not support its determination that the need for confinement outweighed the policies

favoring probation. The state has not filed a brief in this matter, and we therefore decide

this case on the merits. Minn. R. Civ. App. P. 142.03.

When a district court finds that a probation violation has occurred, it has the

discretion to continue the defendant on probation, order intermediate sanctions, or revoke

probation and execute the sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b). However,

before a district court can revoke probation, “the court must 1) designate the specific

condition or conditions that were 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); see also State v. Modtland,

695 N.W.2d 602, 606 (Minn. 2005). These findings are known as the Austin factors.

Appellant acknowledges that the first two Austin factors are met and only disputes

the district court’s determination on the third factor. For that factor, “courts must balance

the probationer’s interest in freedom and the state’s interest in [ensuring their]

rehabilitation and the public safety.” Modtland, 695 N.W.2d at 607 (quotation omitted).

When evaluating the third Austin factor, district courts should consider 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 he is confined,” or (3) “it would unduly

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depreciate the seriousness of the violation if probation were not revoked.” Id.; State v.

Smith, 994 N.W.2d 317, 320 (Minn. App. 2023), rev. denied (Minn. Sept. 27, 2023). “Only

one Modtland subfactor is necessary to support revocation.” Smith, 994 N.W.2d at 320.

“[W]e review de novo whether the district court made the required findings to revoke

probation.” Id.

A district court’s decision to revoke probation “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). District courts must “create thorough, fact-specific

records setting forth their reasons for revoking probation” and “the evidence relied upon.”

Modtland, 695 N.W.2d at 608. However, a transcript of oral findings and reasoning by the

district court can satisfy the “written findings” requirement. Id., n.4. Appellate courts

review a district court’s determination that there is sufficient evidence to revoke probation

for an abuse of 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. Fortner, 989 N.W.2d 368, 374 (Minn. App. 2023)

(quotation omitted).

Here, the district court relied on the first Modtland subfactor by stating that, “while

I would like to see rehabilitation, the goal is public safety.” The district court further stated

that it relied on testimony from the corrections officer and the CORE clinical director,

appellant’s use of methamphetamine significantly increasing his likelihood to reoffend,

and appellant’s already high risk of recidivism. The district court noted that appellant’s

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“carelessness to engage in risky activity that would lead to re-offense [was] an extreme

public safety concern.”

Appellant argues that the district court abused its discretion by failing to make

explicit findings regarding the policies favoring probation. 2 However, as noted above, a

finding that one Modtland subfactor has been met satisfies the third Austin factor. Smith,

994 N.W.2d at 320.

Appellant also argues that the record does not support the district court’s

determination 3 because the district court (1) relied solely on his substance use to support

revocation and (2) took judicial notice of irrelevant prior testimony by the CORE clinical

director that did not consider appellant’s progress in the Project Pathfinder treatment

program.

Here, the record shows that the district court also relied on other evidence, including

both the CORE clinical director’s and the correction officer’s testimony that appellant

presented the highest risk-level for reoffending. Further, new criminal charges or

documented dangerous conduct is not required for a district court to revoke probation. See

State v. Rottelo, 798 N.W.2d 92, 95 (Minn. App. 2011), rev. denied (Minn. July 19, 2011).

2
Appellant cites to nonprecedential cases, State v. Sayers, No. A15-1345, 2016 WL
1619389 (Minn. App. Apr. 25, 2016) and State v. Hill, No. A19-0313, 2019 WL 5107465
(Minn. App. Oct. 14, 2019). But nonprecedential cases are not binding on us.
3
Appellant also argues that the record doesn’t support findings on the second and third
Modtland subfactors that appellant “is in need of correctional treatment that could be
provided most effectively while he was confined” or that “it would unduly depreciate the
seriousness of the violation if [his] probation were not revoked.” 695 N.W.2d at 607.
Because the district court did not make findings regarding these subfactors, and because
the record supports the district court’s finding on the first subfactor, we decline to address
appellant’s argument.

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 Appellant further argues that the district court abused its discretion by basing its

revocation on his substance use because it did not previously order that he obtain a

chemical-health assessment or participate in chemical-dependency programming. This

argument is unavailing because appellant’s probation conditions required him to abstain

from possessing or using unprescribed drugs.

As to appellant’s second argument, in deciding whether revocation is appropriate,

the district court may consider the “original offense and the intervening conduct of the

offender.” Fortner, 989 N.W.2d at 375 (emphasis added). The CORE clinical director’s

testimony related to appellant’s psychosexual-assessment report and his risk to reoffend,

factors which maintained their relevance despite appellant entering a new treatment

program. Furthermore, the district court also heard and relied on testimony from

appellant’s corrections agent, who had supervised appellant throughout the case and on

previous sex offenses.

We conclude that the district court did not abuse its discretion by revoking

appellant’s probation.

Affirmed.

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