State of Minnesota v. Anthony Otto Boyum ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0360
State of Minnesota,
Respondent,
vs.
Anthony Otto Boyum,
Appellant.
Filed August 25, 2014
Affirmed
Stauber, Judge
Waseca County District Court
File No. 81CR12669
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Paul Dressler, Waseca County Attorney, Rachel Cornelius, Assistant County Attorney,
Waseca, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges the district court’s findings that he violated the terms of his
probation. We affirm.
FACTS
Appellant Anthony Boyum was found guilty of controlled-substance crime in the
fifth-degree and sentenced to a stay of adjudication under Minn. Stat. § 152.18. A few
weeks later, appellant tested positive for methamphetamine, amphetamine, and
marijuana. Appellant waived his right to a contested violation hearing and admitted use.
But due to his positive job performance, his remorse, and his willingness to address his
chemical-dependency issues, appellant was reinstated on probation with the condition
that he complete a chemical-dependency evaluation and follow its recommendations.
While attending outpatient chemical-dependency treatment, appellant tested
positive for alcohol use. A contested violation hearing was then held, at which
appellant’s probation agent, BethAnn Wolff, testified that appellant submitted a urine
analysis (UA) on August 27, 2013, and that the UA sample was sent to Redwood
Toxicology for testing. Wolff also testified that the results of appellant’s August 27 UA
sample were positive for alcohol. Wolff, however, admitted that she was not present to
witness the sample collection from appellant.
Appellant denied consuming alcohol and testified that, when he went into the
secretary’s office to put his UA sample cup on the table, no staff member was present.
Although appellant admitted that his UA sample tested positive for alcohol, appellant
claimed: “I don’t know what happened. I know I was not drinking and the only
conclusion I can come to is there’s way too many opportunities for someone that were to
be using to switch the caps on [the UA samples].”
2
The district court found that the state “presented evidence that’s clear and
convincing that [appellant] used a mood altering chemical.” The court also specifically
found appellant’s testimony to be incredible, and thus, concluded that appellant violated
his probation. The district court then revoked appellant’s stay of adjudication, but
reinstated him on probation with a stay of imposition. This appeal followed.
DECISION
The district court has broad discretion when determining whether probation has
been violated and will not be reversed absent an abuse of discretion. State v. Ornelas,
675 N.W.2d 74, 79 (Minn. 2004). The district court’s findings of fact are accorded great
weight and will not be set aside unless clearly erroneous. See State v. Critt, 554 N.W.2d
93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). The state has the
burden of proving an alleged probation violation by clear and convincing evidence.
Onnelas, 675 N.W.2d at 79; Minn. R. Crim. P. 27.04, subd. 3. Clear and convincing
evidence is demonstrated when it is “highly probable” that the proffered facts are true.
Roby v. State, 808 N.W.2d 20, 26 (Minn. 2011) (quotation omitted).
Appellant argues that the state failed to present clear and convincing evidence that
he violated his probation conditions because the state failed to present any evidence
regarding the taking of his UA sample or the chain of custody of the UA sample.
Appellant contends that this evidence was necessary in light of his testimony that he did
not consume alcohol, and the Department of Correction’s (DOC) policy pertaining to the
collection of UA samples which, according to appellant, was not followed. Thus,
3
appellant argues that the district court’s “finding of violation was an abuse of the court’s
discretion and it must be reversed.”
We disagree. The state presented evidence that one of the conditions of
appellant’s probation was that he abstain from alcohol. Appellant’s probation agent
testified that appellant submitted a UA sample on August 27, 2013, the sample was sent
to Redwood Toxicology for testing, and the results of appellant’s August 27 UA sample
were positive for alcohol. If believed, this evidence is sufficient to establish that
appellant violated the terms of his probation. Although appellant denied using alcohol
and claimed that no staff member was present when he turned in his UA sample, thereby
insinuating that someone may have tampered with his UA sample, the district court
specifically did “not find[] [appellant’s] testimony to be credible.” It is well settled that
the district court is in the best position to evaluate the credibility of witnesses, and we
defer to the district court’s determination of credibility. See State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010). The district court’s credibility finding is further
supported by Wolff’s testimony that appellant “refused to take responsibility” for his
positive test, and that he “had a number of different” excuses for testing positive “that he
had seen on the internet, including using hand sanitizer in a room for more than two
hours or being subject to gasoline.” Accordingly, the district court did not abuse its
discretion by finding that appellant violated the terms of his probation.
Affirmed.
4