This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1095

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Max Dylan Loosen-Scholer,
                                      Appellant.

                                   Filed March 7, 2016
                                         Affirmed
                                       Ross, Judge

                              Carlton County District Court
                                File No. 09-CR-12-2797

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Thomas H. Pertler, Carlton County Attorney, Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Then 19-year-old Max Dylan Loosen-Scholer sexually assaulted a 13-year-old girl

multiple times over a five-day period in 2012. He pleaded guilty to third-degree criminal

sexual conduct and the district court imposed a 48-month prison sentence but stayed its
execution on various probationary terms. During the period before and after his sentence,

Loosen-Scholer repeatedly used drugs, was several times discharged from substance-abuse

programs, and was arrested for impaired driving. The district court revoked Loosen-

Scholer’s probation, and he now appeals, arguing that his need for confinement does not

outweigh the policies favoring his continued probation. Because the district court acted

within its discretion in revoking Loosen-Scholer’s probation, we affirm.

                                         FACTS

       Loosen-Scholer pleaded guilty to third-degree criminal sexual conduct after he

repeatedly subjected a 13-year-old girl to sex in November 2012. The district court released

Loosen-Scholer before sentencing him, but a month later he was back in custody after he

overdosed on drugs. He and the state amended the plea agreement, allowing him to be

furloughed to complete a substance-abuse program. But the treatment program

administrator discharged him from it after two months because he failed to progress.

       In November 2013, the district court sentenced Loosen-Scholer to 48 months in

prison with a ten-year conditional-release period, but it stayed execution of the sentence

for three years on various probationary conditions including, among other things,

completion of a drug treatment program and a sex-offender treatment program. Loosen-

Scholer twice violated the terms of his probation by failing drug tests. And police arrested

him for impaired driving. Finally, in March 2015 he was discharged from another drug

treatment program.

       The state asked the district court to revoke Loosen-Scholer’s probation. The district

court held a probation-revocation hearing where Loosen-Scholer admitted that he had used


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Suboxone—a prescription drug—without authorization while he was in the program. The

district court found that Loosen-Scholer’s discharge from treatment and his Suboxone use

were intentional and inexcusable violations of his probation. It also determined that the

need for his confinement outweighs the policies favoring continued probation because his

confinement is needed to protect the public and because treatment would be most effective

in confinement. The district court therefore revoked Loosen-Scholer’s probation and

executed his stayed sentence.

       Loosen-Scholer appeals that decision.

                                     DECISION

       Loosen-Scholer argues that the district court erred by revoking his probation. We

recognize a district court’s broad discretion to determine whether sufficient evidence

supports the state’s effort to revoke probation, and we will not reverse the determination

unless we identify a clear abuse of that discretion. State v. Osborne, 

(Minn. 2007). When a district court revokes probation, it must identify the specific

probationary condition violated, find that the probationer’s violation was either intentional

or inexcusable, and find that the need to confine the probationer outweighs the policies that

favor probation. State v. Austin, 

 (Minn. 1980). Loosen-Scholer

challenges only the district court’s finding that the need to confine him outweighs the

policies that favor probation.

       When the district court weighs whether the need to confine a probationer outweighs

the policies that favor his probation, it should consider the original offense and the

offender’s intervening conduct in relation to three factors: (1) whether confinement is


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necessary to protect the public from the probationer, (2) whether the probationer needs

correctional treatment best provided in confinement, and (3) whether failing to revoke

probation would unduly depreciate the violation’s seriousness. State v. Modtland, 

, 606–07 (Minn. 2005).

       Loosen-Scholer questions the district court’s conclusion based on all three of these

subfactors. We do not share his disagreement with the district court’s bases.

       Loosen-Scholer first argues that his confinement is not necessary to protect the

public from his further criminal activity. The argument is unconvincing. The district court

determined that his confinement is necessary to protect the public because of his impaired-

driving arrest and his inability to complete sex-offender treatment until he ends his

chemical dependency. It found the untreated relationship between his dependency and his

sex offense particularly troubling given that he committed his sex offense while he and the

victim were under the influence of the drugs and alcohol that he had provided. The record

supports these findings, but Loosen-Scholer counters, claiming that his substantial

chemical-dependency issues pose only a risk to him and not to the public. The argument is

flawed on a matter of fact. Loosen-Scholer’s untreated chemical abuse was an element in

both his impaired driving and his sexual assault on the child, and the dangers associated

with future similar crimes are self evident.

       Loosen-Scholer argues next that he need not be confined to receive corrective

treatment. The record supports the district court’s disagreement with this proposition. It

cited Loosen-Scholer’s discharges from multiple chemical-dependency programs over a




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relatively short period. And it attributed much of Loosen-Scholer’s difficulty in completing

chemical-dependency treatment to his own actions:

              There are not community resources for you. You’ve repeatedly
              failed as we have made Herculean efforts. You haven’t
              cooperated. You’ve engaged in drug-seeking behaviors.
              You’ve been very difficult to supervise. When you were taken
              to the jail, you were threatening to the jail staff and their
              families.

The court reasonably determined that revocation is necessary “because nothing that we’ve

done has had any success.”

       Loosen-Scholer argues finally that confinement exaggerates the severity of his

probation violations. He describes his violations as more “technical than egregious” and

maintains that continuing the probation would not unduly depreciate their severity. The

district court did not expressly address the final Modtland subfactor, but we are satisfied

that Loosen-Scholer’s argument about it is not compelling. In any event, the district court’s

revocation decision finds ample support in both the other subfactors, and we need not

consider the argument further.

       Affirmed.




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