Opinion
No. A06-1532.
Filed August 28, 2007.
Appeal from the District Court, Olmsted County, File No. K7-03-1042.
Lori Swanson, Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Government Center, (for respondent).
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
William Solbrig appeals from an order revoking his probation and executing his 96-month imprisonment sentence for second-degree criminal sexual conduct. He argues that he did not violate his probation by kissing and touching a 20-year-old woman. Because we conclude that clear and convincing evidence supports the district's finding that Solbrig violated his probation, that the violation was intentional, and that the district court did not abuse its discretion by determining that the need to confine Solbrig outweighs the policies favoring continued probation, we affirm.
FACTS
From the fall of 1999 through July 2000, William Solbrig, then age 16, committed various acts of criminal sexual conduct against his two younger sisters, ages 11 and 12. Solbrig admitted sexually abusing his sisters numerous times, including fondling their breasts and vaginas and performing oral sex on them. He threatened his sisters with bodily harm if they disclosed the abuse, and he masturbated while fantasizing about the assaults. Based on his admissions, Solbrig was adjudicated delinquent on two counts of second-degree criminal sexual conduct, designated as an extended-jurisdiction juvenile (EJJ), and sentenced to 96 months' imprisonment, which was stayed until he reaches age 21. Solbrig completed a two-year inpatient sex-offender-treatment program and began attending a community college.
In February 2003 the district court revoked Solbrig's EJJ status for probation violations including having contact with underage females at the college and using mood-altering substances. The court resentenced the then-19-year-old Solbrig as an adult to 96 months' imprisonment, stayed the sentence, and placed him on probation for 25 years. As probation conditions, the court ordered Solbrig to have no contact with minors, successfully complete sex-offender-treatment aftercare programming, abstain from all mood-altering chemicals, complete a chemical-dependency evaluation and comply with its recommendations, obtain an updated evaluation of his medication needs, and remain law-abiding. A county agent specifically told him that his only contact with juveniles at the college could be in the context of a class.
Two months later Solbrig committed his first in a series of probation violations. He was seen kissing a 16-year-old student. He also failed to obtain an updated medication evaluation. The district court ordered him to serve 30 days in jail, after which he was reinstated to probation under the previously determined conditions.
In July 2003 Solbrig violated his probation by having prohibited contact with two 17-year-old female students. Police observed the girls putting their shirts back on in Solbrig's apartment after Solbrig played strip poker with them. The district court sentenced Solbrig to an additional 60 days in jail and reinstated him to probation.
In May 2005 Solbrig violated his probation by testing positive for cocaine and methamphetamine. The district court reinstated probation. In September 2005 Solbrig violated probation by testing positive for methamphetamine. The district court again reinstated probation, and it ordered him to complete a two-step chemical-dependency treatment program. Solbrig's attorney stated, "[H]e understands that, you know, he's at the end of his rope here. This doesn't work, the prison sentence is right around the corner." The district court warned Solbrig that "[I]f this doesn't work, this is it."
The incident that is the primary concern of this appeal occurred in April 2006 and involves E.C., a 20-year-old woman. Solbrig and E.C. met for the first time in the summer of 2005. They saw each other a few times without any sexual or romantic involvement. They met again when they saw each other at a bus stop in April 2006, when they boarded a bus together and went to a mall. They sat together on the bus returning from the mall. On that return trip, E.C. invited Solbrig to her house for Easter. E.C. and Solbrig gave conflicting testimony about what happened next.
E.C. testified that Solbrig "started to get a little sexual" with her on the bus. He told her "he was starting to get a hard on and wanted to try and stick his hands down [her] pants and between [her] legs." Then, without her permission, he tried to unbutton her jeans and insert his hands inside them, but she moved his hand to stop him. She testified that she told him "no, [she] wasn't interested in that kind of thing." She also crossed her legs. She asserted that Solbrig then tried to physically uncross her legs and place his hand between them. She again told him, no. Again Solbrig tried to touch her and again she would not let him. Solbrig grabbed her head, pulled it towards his, and kissed her. E.C. pushed him away. E.C.'s testimony was not always consistent. She testified that Solbrig persuaded her to kiss him and to let him touch her. But she also stated that Solbrig forced her to kiss him and that he touched her leg and kissed her without consent and against her will. When asked whether she flirted with Solbrig, she answered that she does not flirt; but she also acknowledged that she has indicated on an Internet posting that she is "a big flirt."
Solbrig's account of the return bus ride differed considerably. He testified that they had leaned toward each other and kissed, with E.C. putting her tongue into his mouth. She allegedly told him if he came over on Easter he would not want to leave because of what she was going to do to him, which Solbrig understood to be an offer to have sex with him. E.C. then initiated another kiss. Solbrig admitted that he put his hand on her thigh, but he asserted that she did not object. Solbrig claimed that E.C. gave him her phone number after they kissed.
Solbrig's friend testified that he was at the bus stop and saw Solbrig and E.C. leave the bus, walk side by side, and then hug and kiss. He stated that the kiss appeared to be mutual and that E.C. did not seem distressed. E.C. did not recall seeing Solbrig's friend and she denied his account.
E.C. and Solbrig had no contact with each other after that day. E.C. testified that she told family members and her psychiatrist about the incident. She learned that Solbrig was on probation as a convicted sex offender, and she contacted his probation officer about one week after the incident. The officer urged her to file a police report, which she did. She testified that she did not report the incident to police immediately because Solbrig's conduct "seemed too minimal." She reported the incident after learning about Solbrig's probationary status because she felt Solbrig's behavior was not minimal for someone on probation. When the probation officer confronted Solbrig, he denied that he had been on the bus and claimed he had not ridden any bus within the past six months.
After hearing all of the testimony, the district court found that Solbrig violated his probation by engaging in nonconsensual sexual touching. The court reasoned that E.C. had no motive to fabricate her allegations and that Solbrig's account was incredible. It considered that if E.C. had truly indicated that she was sexually interested in Solbrig and had promised to have sex with him, Solbrig would have attempted contact with her in the following week.
The district court found that Solbrig's probation violation was substantial and willful, that the need for his confinement outweighed any probation service that might benefit him, that he had exhausted all community resources, and that he posed a substantial public-safety risk. The court revoked Solbrig's probation and executed his 96-month prison sentence. Solbrig now appeals the district court's decision to revoke his probation.
DECISION I
Solbrig challenges the factual basis for the probation revocation. Clear and convincing evidence must support a district court's probation-violation finding. State v. Ehmke, 400 N.W.2d 839, 840 (Minn.App. 1987); Minn. R. Crim. P. 27.04, subd. 3(3). The clear-and-convincing standard is met when the truth of the facts sought to be admitted is "highly probable." State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).
Solbrig argues that he was simply pursuing an age-appropriate relationship with E.C. His argument depends on a credibility determination. He contends that E.C.'s testimony about his behavior was not believable. But the district court found E.C.'s testimony credible and Solbrig's testimony not credible. We defer to that finding. See State v. Losh, 694 N.W.2d 98, 102 (Minn.App. 2005) (deferring to district court's role in determining witnesses' credibility in probation-violation hearing), aff'd 721 N.W.2d 886 (Minn. 2006). Solbrig's credibility was questionable at the outset, as the district court was aware of his false denial to his probation officer, representing that he had not been on the bus at all. That Solbrig, who has a sustained history of failing to control his sexual urges and who had demonstrated sexual interest in E.C., made no contact with E.C. after her supposed invitation for sex supports the district court's doubt.
The absence of an eyewitness supporting E.C.'s claim of nonconsensual, sexual touching does not preclude the district court from accepting E.C.'s testimony alone as the basis for its decision. See Kennedy, 585 N.W.2d at 389 (stating that a victim's uncorroborated testimony can meet the clear-and-convincing standard). We recognize that a different factfinder might have weighed the evidence differently and reached a different conclusion in light of the conflicting testimony. But we defer to the district court's credibility determinations. We therefore conclude that the district court did not abuse its discretion by finding that Solbrig touched E.C. sexually without her consent and that in so doing he violated his probation by not remaining law-abiding.
II
Solbrig next argues that even if his conduct violated probation, it did not justify the district court's decision to revoke his probation and execute his stayed 96-month prison sentence. Before revoking probation, the district court must designate the specific condition that the probationer violated, find that the violation was intentional or inexcusable, and find that the probationer's need for confinement outweighs the policies favoring continued probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The district court's findings must create a thorough, fact-specific record setting forth the court's reasons for revoking probation, and we will not reverse revocation unless the district court clearly abused its discretion. State v. Modtland, 695 N.W.2d 602, 605, 608 (Minn. 2005).
The district court's findings were sufficient to satisfy the first two Austin factors. The court designated the specific condition that Solbrig violated by stating that he "engaged in non-consensual sexual touching rising to a crime." This was a violation because Solbrig's probation conditions required him to be law-abiding. The court also found that Solbrig's violation was intentional and willful. The record supports this finding. E.C. testified that she tried to prevent Solbrig's sexual advances by moving his hand to stop him, telling him no, and crossing her legs to prevent him from groping her. Despite her actions and protest, Solbrig tried to uncross her legs and place his hand between them, and he continued to touch her. Solbrig has not contended that the nonconsensual touching was unintended or excusable.
With respect to the third Austin factor, the district court stated that it revoked Solbrig's probation and executed his prison sentence because the need to confine him outweighs his interest in continued probation. The court found that "[Solbrig] ha[s] exhausted all community resources and . . . pose[s] a substantial public safety risk." We conclude that the district court considered and appropriately applied this factor. Solbrig was convicted for repeated criminal sexual conduct against his 11 and 12-year-old sisters during the course of nearly one year. He committed criminal sexual conduct against a non-family member during the same period. Despite completing a two-year inpatient sex-offender treatment program and being threatened with the loss of his EJJ status, Solbrig continued to engage in prohibited sexual contact with girls until his EJJ status was revoked in February 2003 and he was resentenced. He had two additional sex-related violations later that year. The probation officers opined that Solbrig appeared to be unwilling to apply what he had learned during treatment. Jail sentences of 30 and 60 days were insufficient to motivate him to restrain his behavior. Solbrig was more than adequately warned against additional probation violations, and the district court exercised considerable patience and restraint over the series of violations.
On this record and deciding the facts as it did, the district court reasonably concluded that Solbrig had exhausted all community resources and that, given the seriousness of the underlying sexual conduct for which Solbrig was convicted and his continued sexual violations, he posed a risk to public safety and additional treatment would not lead to his rehabilitation. Although the district court might have more thoroughly set forth its reasons for revoking probation and rejecting alternatives, we find sufficient support for its findings and that the findings are adequate, and we conclude that it did not abuse its discretion by revoking probation.