This opinion is nonprecedential except as provided by Minn.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 A23-0276
State of Minnesota, Respondent,
vs.
Henry James Johnson, Jr., Appellant.
Filed December 18, 2023 Affirmed in part, reversed in part, and remanded Frisch, Judge
Hennepin County District Court File No. 27-CR-20-19990
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael J. Colich, Brooklyn Park City Attorney, Amanda J. Grossmann, Assistant City Attorney, Colich & Associates, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Peter H. Dahlquist, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this direct appeal from the judgment of conviction for second-degree driving
while impaired (DWI), appellant argues that his conviction must be reversed because there is insufficient evidence to establish that he refused a chemical breath test. Alternatively,
appellant argues that if the evidence is sufficient to support the conviction, the case must
be remanded to the district court for correction of his 365-day sentence to 364 days in
accordance with newly enacted legislation. Because the evidence is sufficient to sustain
the conviction, we affirm Johnson’s conviction but remand for correction of his sentence.
FACTS
On September 6, 2020, a deputy conducted a traffic stop of appellant Henry James
Johnson Jr. The deputy responded to a call and noticed Johnson’s vehicle because it was
traveling at “quicker-than normal pace” and the vehicle headlights were not illuminated
after dark. After following the vehicle for several blocks, the deputy stopped Johnson and
approached the vehicle. When speaking with Johnson, the deputy observed that Johnson’s
eyes were bloodshot and watery, and the deputy detected an odor of alcohol coming from
the vehicle. Upon inquiry, Johnson stated he had consumed one beer before driving. The
deputy performed field sobriety tests which indicated possible impairment. The deputy
asked Johnson to perform a preliminary breath test, but Johnson refused. After refusing,
the deputy informed Johnson that his refusal was grounds for arrest. Johnson continued to
refuse testing, and the deputy placed him under arrest. Johnson then agreed to take the
preliminary breath test, which showed an alcohol concentration of over 0.12.
Officers transported Johnson to the police department. Upon arrival, officers read
the Minnesota breath-test advisory. During the advisory, Johnson repeatedly stated that he
wanted a blood test. Johnson stated that he wished to speak to an attorney. When Johnson
stated that he did not have an attorney, officers offered him phonebooks. An officer then
2 asked Johnson again if he wished to speak with an attorney, and Johnson stated, “I want a
blood test.” The officer requested that Johnson submit to a chemical breath test. Johnson
did not agree to a chemical breath test. He instead repeated that he wanted a blood test.
The officer asked Johnson if he would submit to a breath test several times. Johnson
stopped responding to officers and did not agree to take a breath test. The officer asked
Johnson why he was refusing a breath test, and Johnson replied that breath tests are
inaccurate.
Respondent State of Minnesota charged appellant with second-degree DWI, breath-
test refusal pursuant to Minn. Stat. § 169A.20, subd. 2(1) (2020); third-degree DWI
pursuant to Minn. Stat. § 169A.20, subd. 1(2) (2020); and failure to comply with a peace
officer directing traffic pursuant to Minn. Stat. § 169.02, subd. 2 (2020). A jury found
Johnson guilty of each count. The district court convicted Johnson of second-degree DWI,
breath-test refusal, and sentenced Johnson to 365 days in jail stayed for three years.
Johnson appeals.
DECISION
Johnson argues that the evidence at trial was insufficient to prove his guilt. Johnson
also argues in the alternative that this case must be remanded to correct his 365-day
sentence to 364 days. We address each argument in turn.
I. The evidence was sufficient to establish that Johnson refused to submit to a breath test.
Johnson argues the state did not introduce sufficient evidence to prove he refused to
submit to a chemical breath test. He argues that no direct evidence shows that he refused
3 a breath test and that the circumstances proved support a rational hypothesis he did not
refuse. Because the evidence is sufficient to establish that Johnson refused to submit to a
breath test and is inconsistent with a rational hypothesis of innocence, we disagree.
To convict Johnson of second-degree DWI, breath-test refusal, the state was
required to prove beyond a reasonable doubt that Johnson “refuse[d] to submit to . . . a
chemical test of [his] breath.” Minn. Stat. § 169A.20, subd. 2 (2020). On appeal, Johnson
disputes the sufficiency of the state’s evidence that he refused to submit to a chemical
breath test.
The state may prove refusal of a chemical breath test through a direct refusal or “any
indication of actual unwillingness to participate in the testing process, as determined from
the driver’s words and actions in light of the totality of the circumstances.” State v. Ferrier,
792 N.W.2d 98, 101-02 (Minn. App. 2010), rev. denied (Minn. Mar. 15, 2011). The state
need only prove refusal of the test offered by law enforcement administering the test
because law enforcement “has the authority to decide whether the test is of blood, breath,
or urine.” See Schulz v. Comm’r of Pub. Safety, 760 N.W.2d 331, 333 (Minn. App. 2009)
(citing Minn. Stat. § 169A.51, subd. 3 (2006)), rev. denied (Minn. Apr. 21, 2009); see also
id. at 335 (“[A] request for a test that is different from that which is offered by the peace
officer, in and of itself, is not equivalent to a request for a test in addition to that which is
offered by the peace officer.”).
Johnson argues that there is no direct evidence that he expressly refused a breath
test. The state argues that it introduced direct evidence that Johnson refused to submit to
breath testing. The state contends that the breath-test-advisory form and law enforcement’s
4 body-camera recording prove that, when asked if he would submit to a breath test, Johnson
stated “no.” Though the form denotes that Johnson refused a breath test, the form was
completed by the officer based upon the officer’s interpretation of Johnson’s responses
during the breath-test advisory and is not based on a direct statement of refusal by Johnson.
The body-camera recording reflects that, when asked if he would take a breath test, Johnson
never explicitly stated “no.” Because Johnson’s refusal to submit to a breath test requires
an inferential step between Johnson’s statements and a conclusion that he was refusing to
submit to a breath test, we agree with Johnson that the breath-test-advisory form is not
direct evidence of his refusal and is instead circumstantial evidence of refusal. See
Bernhardt v. State,
Free access — add to your briefcase to read the full text and ask questions with AI
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 A23-0276
State of Minnesota, Respondent,
vs.
Henry James Johnson, Jr., Appellant.
Filed December 18, 2023 Affirmed in part, reversed in part, and remanded Frisch, Judge
Hennepin County District Court File No. 27-CR-20-19990
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Michael J. Colich, Brooklyn Park City Attorney, Amanda J. Grossmann, Assistant City Attorney, Colich & Associates, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Peter H. Dahlquist, Special Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
In this direct appeal from the judgment of conviction for second-degree driving
while impaired (DWI), appellant argues that his conviction must be reversed because there is insufficient evidence to establish that he refused a chemical breath test. Alternatively,
appellant argues that if the evidence is sufficient to support the conviction, the case must
be remanded to the district court for correction of his 365-day sentence to 364 days in
accordance with newly enacted legislation. Because the evidence is sufficient to sustain
the conviction, we affirm Johnson’s conviction but remand for correction of his sentence.
FACTS
On September 6, 2020, a deputy conducted a traffic stop of appellant Henry James
Johnson Jr. The deputy responded to a call and noticed Johnson’s vehicle because it was
traveling at “quicker-than normal pace” and the vehicle headlights were not illuminated
after dark. After following the vehicle for several blocks, the deputy stopped Johnson and
approached the vehicle. When speaking with Johnson, the deputy observed that Johnson’s
eyes were bloodshot and watery, and the deputy detected an odor of alcohol coming from
the vehicle. Upon inquiry, Johnson stated he had consumed one beer before driving. The
deputy performed field sobriety tests which indicated possible impairment. The deputy
asked Johnson to perform a preliminary breath test, but Johnson refused. After refusing,
the deputy informed Johnson that his refusal was grounds for arrest. Johnson continued to
refuse testing, and the deputy placed him under arrest. Johnson then agreed to take the
preliminary breath test, which showed an alcohol concentration of over 0.12.
Officers transported Johnson to the police department. Upon arrival, officers read
the Minnesota breath-test advisory. During the advisory, Johnson repeatedly stated that he
wanted a blood test. Johnson stated that he wished to speak to an attorney. When Johnson
stated that he did not have an attorney, officers offered him phonebooks. An officer then
2 asked Johnson again if he wished to speak with an attorney, and Johnson stated, “I want a
blood test.” The officer requested that Johnson submit to a chemical breath test. Johnson
did not agree to a chemical breath test. He instead repeated that he wanted a blood test.
The officer asked Johnson if he would submit to a breath test several times. Johnson
stopped responding to officers and did not agree to take a breath test. The officer asked
Johnson why he was refusing a breath test, and Johnson replied that breath tests are
inaccurate.
Respondent State of Minnesota charged appellant with second-degree DWI, breath-
test refusal pursuant to Minn. Stat. § 169A.20, subd. 2(1) (2020); third-degree DWI
pursuant to Minn. Stat. § 169A.20, subd. 1(2) (2020); and failure to comply with a peace
officer directing traffic pursuant to Minn. Stat. § 169.02, subd. 2 (2020). A jury found
Johnson guilty of each count. The district court convicted Johnson of second-degree DWI,
breath-test refusal, and sentenced Johnson to 365 days in jail stayed for three years.
Johnson appeals.
DECISION
Johnson argues that the evidence at trial was insufficient to prove his guilt. Johnson
also argues in the alternative that this case must be remanded to correct his 365-day
sentence to 364 days. We address each argument in turn.
I. The evidence was sufficient to establish that Johnson refused to submit to a breath test.
Johnson argues the state did not introduce sufficient evidence to prove he refused to
submit to a chemical breath test. He argues that no direct evidence shows that he refused
3 a breath test and that the circumstances proved support a rational hypothesis he did not
refuse. Because the evidence is sufficient to establish that Johnson refused to submit to a
breath test and is inconsistent with a rational hypothesis of innocence, we disagree.
To convict Johnson of second-degree DWI, breath-test refusal, the state was
required to prove beyond a reasonable doubt that Johnson “refuse[d] to submit to . . . a
chemical test of [his] breath.” Minn. Stat. § 169A.20, subd. 2 (2020). On appeal, Johnson
disputes the sufficiency of the state’s evidence that he refused to submit to a chemical
breath test.
The state may prove refusal of a chemical breath test through a direct refusal or “any
indication of actual unwillingness to participate in the testing process, as determined from
the driver’s words and actions in light of the totality of the circumstances.” State v. Ferrier,
792 N.W.2d 98, 101-02 (Minn. App. 2010), rev. denied (Minn. Mar. 15, 2011). The state
need only prove refusal of the test offered by law enforcement administering the test
because law enforcement “has the authority to decide whether the test is of blood, breath,
or urine.” See Schulz v. Comm’r of Pub. Safety, 760 N.W.2d 331, 333 (Minn. App. 2009)
(citing Minn. Stat. § 169A.51, subd. 3 (2006)), rev. denied (Minn. Apr. 21, 2009); see also
id. at 335 (“[A] request for a test that is different from that which is offered by the peace
officer, in and of itself, is not equivalent to a request for a test in addition to that which is
offered by the peace officer.”).
Johnson argues that there is no direct evidence that he expressly refused a breath
test. The state argues that it introduced direct evidence that Johnson refused to submit to
breath testing. The state contends that the breath-test-advisory form and law enforcement’s
4 body-camera recording prove that, when asked if he would submit to a breath test, Johnson
stated “no.” Though the form denotes that Johnson refused a breath test, the form was
completed by the officer based upon the officer’s interpretation of Johnson’s responses
during the breath-test advisory and is not based on a direct statement of refusal by Johnson.
The body-camera recording reflects that, when asked if he would take a breath test, Johnson
never explicitly stated “no.” Because Johnson’s refusal to submit to a breath test requires
an inferential step between Johnson’s statements and a conclusion that he was refusing to
submit to a breath test, we agree with Johnson that the breath-test-advisory form is not
direct evidence of his refusal and is instead circumstantial evidence of refusal. See
Bernhardt v. State, 684 N.W.2d 465, 477 n.11 (Minn. 2004) (“Circumstantial evidence is
defined as evidence based on inference and not on personal knowledge or
observation . . . .” (quotation omitted)).
Having concluded that the state relied on circumstantial evidence to prove that
Johnson refused a breath test, we follow a two-step process in reviewing the sufficiency of
the evidence to support the conviction. State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011).
In the first step, we must identify the circumstances proved. Id. “In identifying the
circumstances proved, we defer, consistent with [the] standard of review, to the jury’s
acceptance of the proof of these circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the State.” State v. Al-Naseer, 788 N.W.2d
469, 473 (Minn. 2010) (quotation omitted). In other words, we must “construe conflicting
evidence in the light most favorable to the verdict and assume that the jury believed the
5 State’s witnesses and disbelieved the defense witnesses.” State v. Tscheu, 758 N.W.2d
849, 858 (Minn. 2008).
In the second step, we “determine whether the circumstances proved are consistent
with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis
except that of his guilt.” Hawes, 801 N.W.2d at 669 (quotation omitted). While we give
deference to the fact-finder when reviewing the circumstances proved, we give “no
deference to the fact finder[’]s choice between reasonable inferences.” Id. at 668-69
(quotation omitted). When evaluating whether the circumstances proved are consistent
with a rational hypothesis of guilt and inconsistent with a rational hypothesis of innocence,
we “do not review each circumstance proved in isolation.” State v. Andersen, 784 N.W.2d
320, 332 (Minn. 2010). “Instead, we must consider whether the circumstances presented
are consistent with guilt and inconsistent, on the whole, with any reasonable hypothesis of
innocence.” Id. (quotation omitted).
The state proved the following circumstances regarding Johnson’s refusal: (1) when
asked if he would take a breath test, Johnson responded “I wanna take a blood test”; (2) the
officer clearly and repeatedly told Johnson that the only test offered was a breath test;
(3) the officer asked Johnson, “will you take a breath test” three more times and received
no direct response to that question; (4) when the officer asked Johnson his reason for
refusing, Johnson did not state he was not refusing but instead replied “those breath tests
are inaccurate . . . I wanna take a blood test”; and (5) another officer present during the
breath-test advisory understood Johnson’s statements to mean he refused the breath test.
The circumstances proved reasonably support the inference that Johnson refused to submit
6 to a breath test. See Ferrier, 792 N.W.2d at 102 (a refusal to submit to a test includes “any
indication of actual unwillingness to participate in the testing process, as determined from
the driver’s words and actions in light of the totality of the circumstances”).
Johnson argues that his statements during the breath-test advisory support a rational
hypothesis other than that of guilt, namely that Johnson “wanted a blood test prior to
submitting to breath testing” and if blood testing had been provided, he “may have
eventually provided a breath sample.” This hypothesis is not rational because it is not
consistent with the circumstances proved. See Al-Naseer, 788 N.W.2d at 473 (“We will
not overturn a conviction based on circumstantial evidence on the basis of mere
conjecture.” (quotation omitted)); State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995)
(noting that a successful challenge to the sufficiency of the evidence must be based on
evidence in the record). Even so, Johnson’s assertion that the evidence supports an
inference that he may have provided a breath sample subsequent to blood testing does not
necessarily negate the jury’s conclusion that he refused the test that was offered to him. A
police officer has statutory authority to determine what chemical test to administer. Schulz,
760 N.W.2d at 333. Though Johnson had a statutory right to request testing in addition to
the test administered by a police officer, he does not have a statutory or other right to
condition his consent to a breath test on receiving a blood test. See Minn. Stat. § 169A.51,
subd. 7(b) (2020). Accordingly, the circumstances proved are only consistent with
Johnson’s guilt, and the evidence was therefore sufficient to establish that Johnson refused
to submit to a breath test.
7 II. Johnson’s gross-misdemeanor sentence must be reduced to 364 days.
Johnson argues that his 365-day gross-misdemeanor sentence is no longer
authorized by law and must be reduced to 364 days consistent with a 2023 session law
setting forth the maximum punishment for gross misdemeanors. 2023 Minn. Laws ch. 52,
art. 6, § 6, at 736-37. 1 Because the 2023 session law is retroactive, we agree that the
sentence must be corrected to 364 days. Id. (“This section is effective the day following
final enactment and applies . . . retroactively to offenders who received a gross
misdemeanor sentence before that date.”). We therefore reverse the 365-day sentence and
remand to the district court for the sole purpose of correction of the sentence. Id. (“A court
may at any time correct or reduce [a sentence of imprisonment for one year or 365 days]
. . . and shall issue a corrected sentencing order upon motion of any eligible defendant.”).
Affirmed in part, reversed in part, and remanded.
1 Previously, the maximum sentence of imprisonment for gross misdemeanors was one year. Minn. Stat. § 609.0341 (2022). However, in 2023 the legislature enacted Minnesota Statutes section 609.0342 which provides that “[a]ny law of this state that provides for a maximum sentence of imprisonment of one year or is defined as a gross misdemeanor shall be deemed to provide for a . . . maximum sentence of imprisonment of 364 days.” 2023 Minn. Laws ch. 52, art. 6, § 6 at 736-37 (to be codified at Minn. Stat. § 609.0342).