This opinion is nonprecedential except as provided by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
                                      A23-1072

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Marco Antonio Zavala,
                                       Appellant.

                                 Filed February 14, 2024
                                        Affirmed
                                     Cochran, Judge

                             Watonwan County District Court
                                 File No. 83-CR-18-680

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

Julie Kelley, Watonwan County Attorney, St. James, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Max B. Kittel, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Larson, Presiding Judge; Cochran, Judge; and

Slieter, Judge.

                           NONPRECEDENTIAL OPINION

COCHRAN, Judge

       Appellant challenges the district court’s order revoking his probation and executing

his sentence. He argues that the district court abused its discretion by finding that the need
for confinement outweighs the policies favoring probation. Because the district court’s

finding is supported by the record, we conclude that the district court did not abuse its

discretion by revoking appellant’s probation. We therefore affirm.

                                         FACTS

       On December 3, 2018, respondent State of Minnesota charged appellant Marco

Antonio Zavala with third-degree assault, felony domestic assault, and obstructing a police

officer. The charges were based on allegations that Zavala physically abused his wife

during an altercation at their residence and then prevented law enforcement from

responding to the altercation by temporarily blocking the entrance to the home.

       Zavala pleaded guilty to felony domestic assault and agreed to participate in drug

court as part of a plea agreement with the state. In exchange for his guilty plea, the state

dropped the remaining charges and recommended a downward dispositional departure

from Zavala’s presumptive prison sentence, pending the completion of a presentence

investigation report. The presentence investigation report revealed that Zavala had a

lengthy criminal history, including three previous convictions of felony domestic assault

and one previous conviction of third-degree assault.

       On May 28, 2019, the district court sentenced Zavala to 36 months in prison, stayed

for five years, plus 15 days in jail, which constituted a downward dispositional departure.

As part of the sentence, the district court also required Zavala to comply with several

conditions of probation. The conditions included, among others: notifying his probation

officer within 72 hours of contact with law enforcement; remaining in contact with his

probation officer, as directed; abstaining from alcohol and other controlled substances; and


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completing the county drug-court program, a chemical-dependency assessment, and a

domestic-abuse evaluation.

       Approximately one month after sentencing, Zavala’s probation officer filed a report

alleging that Zavala had violated several conditions of his probation by failing to (1) notify

his probation officer within 72 hours of contact with law enforcement, (2) contact his

probation officer as directed, (3) serve his jail sentence, (4) complete the drug-court

program, and (5) complete a chemical-dependency assessment. The report noted that

Zavala flouted “every aspect of probation supervision.” The report also expressed “serious

concerns” about Zavala’s commitment to being successful on probation.                Zavala’s

probation officer filed an addendum to the report four days later, alleging that Zavala had

violated additional conditions of his probation by refusing to submit to a drug test and by

using marijuana.

       On July 16, 2019, the district court held a probation-violation hearing. Zavala

admitted to each of the alleged violations and explained that he was struggling with his

mental health because he and his wife had separated.           The district court expressed

frustration with Zavala’s failure to comply with the conditions of his probation but noted

that sending Zavala to prison would punish his wife and children by preventing him from

working to support them. The district court reinstated Zavala on probation with the

additional condition that he serve two 90-day sentences in jail. 1


1
 While Zavala was serving his first 90-day sentence, Zavala’s probation officer asked the
district court to release him from jail early so he could receive inpatient treatment at a
medical center. The district court granted this request. Zavala’s probation officer also
asked the district court to defer Zavala’s second 90-day sentence because he was “being

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       On April 4, 2023, almost four years later, Zavala’s probation officer filed a second

probation-violation report. The report alleged that Zavala had violated the conditions of

his probation by failing to (1) complete a domestic-abuse evaluation as required when he

was initially sentenced, (2) remain in contact with his probation officer as directed, and

(3) notify his probation officer within 72 hours of contact with law enforcement.

Regarding the first violation, the report alleged that Zavala had not completed the

court-ordered domestic-abuse evaluation since being placed on probation in 2019, despite

probation officers’ efforts to help him do so. The report noted that probation officers

provided Zavala with a list of resources and tried to help him obtain health insurance after

Zavala indicated that he could not afford to pay for the evaluation. Despite these efforts,

Zavala had not completed the evaluation by the date of the report. With regard to the

second violation, the report alleged that Zavala had not contacted his probation officer in

more than six months, notwithstanding his probation officer’s repeated efforts to get in

touch with him by calling him and by writing to him and his mother. Finally, regarding

the third violation, the report alleged that Zavala failed to notify his probation officer after

he was charged with new traffic violations.

       The district court held a probation-violation hearing. During the hearing, Zavala

admitted to each of the alleged violations. The district court accepted the admissions,

found that the violations were intentional and inexcusable, and set a dispositional hearing

for the following week.


successful in the community” by maintaining full employment, attending outpatient
treatment, and attending therapy. The district court also granted this request.

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       At the dispositional hearing, the district court heard arguments from the parties and

Zavala on the appropriate disposition. The state asked the district court to execute Zavala’s

sentence. In support of its position, the state noted that Zavala was on probation for “his

fourth felony domestic [assault] conviction.” The state then emphasized Zavala’s failure

to complete a domestic-abuse evaluation as required. According to the state, Zavala’s

failure to do so was especially troubling in light of his criminal history of repeated

domestic-assault offenses because it “goes right to the heart of the problem.” The state

also asserted that Zavala would be able to complete the necessary domestic-abuse

evaluation in prison. And the state noted that Zavala had avoided his probation officer and

thereby evaded drug testing, which raised concerns, given his history of drug use. For

these reasons, the state urged the district court to revoke Zavala’s probation.

       Defense counsel asked the district court to reinstate Zavala on probation with a

“lengthy” jail sentence. Defense counsel noted that it had been four years since Zavala’s

last probation violation and stated that he had “made progress” in that time. Defense

counsel also explained that Zavala was homeless, which made it difficult for him to pay

for the domestic-abuse evaluation and stay in touch with his probation officer. Zavala also

made statements on his behalf. Zavala stated that his relationship with his wife had

stabilized since they had separated. He also stated that he had enrolled in a diesel-mechanic

program and had received job offers from three potential employers. And he explained

that he was motivated to change his behavior so he could provide for his children and care

for his mother.




                                              5
       After considering the parties’ positions, the district court revoked Zavala’s

probation and executed his sentence. The district court made several findings in support

of its decision. The district court found that Zavala admitted to the alleged probation

violations, that the probation violations were intentional and inexcusable, and that the need

for confinement outweighs the policies favoring probation. With regard to this last finding,

the district court made additional, supporting findings including that confinement was

necessary to protect the public from further criminal activity, that Zavala was in need of

treatment that could most effectively be provided in prison, and that reinstating Zavala on

probation would unduly depreciate the seriousness of his probation violations. Based on

these findings, the district court revoked Zavala’s probation and executed the stayed prison

sentence.

       Zavala appeals.

                                        DECISION

       If an offender with a stay of execution admits a probation violation, a district court

may either continue the offender on probation or revoke probation and execute the

sentence. Minn. R. Crim. P. 27.04, subd. 3(2)(b)(iv)-(v); see also 

,

subds. 1, 3 (2022). Before a district court may revoke probation, the district court must

make three specific findings: (1) that the probationer violated a specific condition of their

probation; (2) that the violation was intentional or inexcusable; and (3) that the need for

confinement outweighs the policies favoring probation. State v. Austin, 

 (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


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revocation and the evidence relied upon.” State v. Modtland, 

(Minn. 2005). 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, 

 (quotation omitted).

         While a district court must make the necessary findings on the Austin factors to

support revocation, 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.” 

. “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, 

, 122 (Minn. 2023).

         Zavala challenges only the district court’s finding on the third Austin factor—that

the need for his confinement outweighs the policies favoring probation. In determining

whether the third Austin factor is met, the district court should consider

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 depreciate the

seriousness of the violation if probation were not revoked.” Modtland, 

(quotation omitted).     These considerations are known as the Modtland subfactors.

State v. Smith, 

, 320 (Minn. App. 2023), rev. denied (Minn. Sept. 27,

2023).     A district court need only find that one of the Modtland subfactors favors

confinement for the third Austin factor to be satisfied. 

                                               7
       At Zavala’s dispositional hearing, the district court considered each of the three

Modtland subfactors. The district court found that each of the subfactors was met and

explained its reasoning on the record. Zavala challenges the district court’s findings on

each of the subfactors.

       Because only one Modtland subfactor is necessary to support revocation, we begin

and end our analysis by focusing on the first subfactor—whether confinement is necessary

to protect the public from further criminal activity by the offender. See 

.

When discussing this subfactor, the district court emphasized that Zavala was on probation

for felony domestic assault but had failed to complete a court-ordered domestic-abuse

evaluation, despite having four years to do so. The district court explained that the

domestic-abuse evaluation was “one of the most important” parts of his probation terms

because it was designed to identify his “domestic abuse issues” and recommend

appropriate treatment. The district court expressed serious concern that, without the

evaluation and treatment, Zavala may engage in further criminal domestic assault given his

criminal history. Based on these facts and considerations, the district court found that the

first Modtland subfactor was met.

       Zavala argues that the district court abused its discretion when it found that

confinement was necessary to protect the public from further criminal activity by Zavala

because he was not convicted of any new crimes while on probation. Zavala emphasizes

that he was on probation for “nearly five years without any sort of assaultive convictions

or probation violation behavior.” We are not persuaded that Zavala has demonstrated an

abuse of discretion by the district court.


                                             8
       As a preliminary matter, an offender does not need to commit a new crime for the

district court to determine that “confinement is necessary to protect the public from further

criminal activity.” 

 (emphasis added) (quotation omitted); see also State v. Rottelo,

 (Minn. App. 2011) (addressing and rejecting the “often-heard argument

that [the appellant] committed no new crimes while he was on probation” (quotation

omitted)), rev. denied (Minn. July 19, 2011). Accordingly, Zavala’s assertion that the

district court abused its discretion by finding that the first Modtland subfactor supported

revocation because Zavala was not convicted of any new crimes while on probation is

unavailing.

       Moreover, the record supports the district court’s finding that Zavala’s confinement

was necessary to protect the public from further criminal activity. The record shows that

Zavala was on probation for felony domestic assault but failed to complete a key condition

of his probation—a domestic-assault evaluation that would determine a course of

treatment. The record also reflects that Zavala had three prior convictions of felony

domestic assault and previously violated the conditions of his probation by, in relevant

part, failing to contact his probation officer. Taken together, Zavala’s history of engaging

in felony domestic assault, his refusal to complete a domestic-abuse evaluation that would

recommend a course of treatment, and his tendency to evade his probation officer

demonstrate that Zavala posed a threat to public safety. Based on these undisputed facts,

the district court reasonably determined that confinement was necessary to protect the

public from Zavala’s further criminal activity. Because we conclude that the first Modtland

subfactor was met, we need not consider the other subfactors to conclude that the district


                                             9
court did not abuse its discretion by finding that the third Austin factor was satisfied. See

Smith, 994 N.W.2d at 320.

       In sum, the district court has broad discretion in weighing the need for confinement

against the policies favoring probation, and the district court carefully exercised its

discretion here. Because the record supports the district court’s determination that the need

for confinement outweighs the policies favoring probation, we conclude that the district

court did not clearly abuse its discretion by revoking Zavala’s probation and executing his

sentence.

       Affirmed.




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