This opinion will be unpublished and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
A14-1633
State of Minnesota,
Respondent,
vs.
Rodney Joseph Hill,
Appellant.
Filed August 10, 2015
Affirmed
Rodenberg, Judge
Clay County District Court
File No. 14-CR-13-3805
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Brian J. Melton, Clay County Attorney, Johnathan R. Judd, Assistant County Attorney,
Moorhead, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Klaphake, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant challenges his convictions for driving while impaired and test refusal,
and his sentence. He challenges the constitutionality of his test-refusal conviction, argues
that the evidence submitted at trial is insufficient to support his driving-while-impaired
conviction, and asserts that the district court abused its discretion in denying his
downward-departure motion at sentencing. We affirm.
FACTS
In the early morning of November 10, 2013, Moorhead Police Officer Raul Lopez
observed a stationary motor vehicle on the side of a street. He saw a pedestrian who
appeared to be speaking to the vehicle’s driver. Thinking the vehicle might be stalled,
Officer Lopez stopped behind it “to try to figure out what was going on.” He approached
the parked vehicle, observed that the motor was running, and spoke to the pedestrian.
That pedestrian told Officer Lopez that the people in the vehicle had an argument and one
of the passengers “was walking down the on-ramp towards the freeway.” Officer Lopez
also spoke to the person seated in the driver’s seat, who was identified as appellant
Rodney Hill.
Officer Lopez (after attending to safety concerns of the person walking toward the
freeway) eventually learned that appellant’s diving privileges were revoked. While
speaking to appellant, who remained in the driver’s seat of the vehicle, Officer Lopez
smelled the odor of alcohol coming from appellant and saw that appellant had bloodshot,
watery eyes. Officer Lopez asked appellant if he had been drinking, and appellant stated
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that he had not been drinking. Officer Lopez then asked appellant to step out of the
vehicle, and he administered standard field sobriety tests to appellant. Appellant failed
the horizontal gaze nystagmus test (showing all six clues of impairment), failed the walk-
and-turn test, passed the one-leg-stand test, and failed a preliminary breath test. Officer
Lopez arrested appellant for suspicion of driving while impaired.
Officer Lopez transported appellant to the Moorhead County jail, where he read
appellant the Minnesota Implied Consent Advisory. Appellant indicated that he
understood the advisory, but refused to submit to breath testing.
Appellant was charged with first-degree driving while impaired in violation of
Minn. Stat. § 169A.20, subd. 1(1) (2012), and first-degree refusal to submit to a chemical
test in violation of Minn. Stat. § 169A.20, subd. 2 (2012).1 Appellant moved the district
court to dismiss the test-refusal charge, arguing that the statute is unconstitutional. The
district court denied the motion. Both counts were tried to a jury, which found appellant
guilty as charged.
Appellant’s presumptive sentence, based on his criminal history and the severity
of his convictions, was commitment to the commissioner of corrections for 60 months.
At sentencing, appellant requested a downward dispositional departure, providing the
district court with eight letters of support written by appellant’s family and friends. The
state argued against a departure, emphasizing appellant’s criminal history and his failure
to seek treatment before the incident in this case, and argued for a “top-of-the-box”
1
Appellant’s convictions were enhanced by one DWI conviction from North Dakota in
2007, one DWI conviction from Wyoming in 2009, and one impaired-driving-related
revocation in 2013.
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sentence of 72 months. The district court declined to depart from the guidelines and
sentenced appellant to prison for 51 months, at the bottom of the relevant guidelines
range. This appeal followed.
DECISION
I.
Appellant challenges his conviction for test refusal, arguing that the test-refusal
statute is unconstitutional. Appellant asks us to disregard the supreme court’s precedent
in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and that we “should decline to follow
Bernard, and instead should conclude, under McNeely, that a breath test is a
constitutionally unreasonable search.”
Minnesota’s Impaired Driving Code criminalizes refusal to submit to alcohol
concentration testing “of the person’s blood, breath, or urine.” Minn. Stat. § 169A.20,
subd. 2. The Minnesota Supreme Court held in Bernard that “the test refusal statute is a
reasonable means to a permissive object and that it passes rational basis review.”
Bernard, 859 N.W.2d at 774. Bernard held that a breath test is constitutionally
permissible as a search incident to arrest, and a person “does not have a fundamental right
to refuse a constitutional search.” Id. at 772-73.
Appellant refused the same alcohol concentration test as the one at issue in
Bernard. Appellant asks us to disregard our proper role and exceed our authority as an
error-correcting court by declining to follow Bernard. See Lake George Park, L.L.C. v.
IBM Mid-America Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App.
1998) (stating that “[t]his court, as an error correcting court, is without authority to
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change the law”), review denied (Minn. June 17, 1998). Because the supreme court’s
holding in Bernard is binding on this court, and appellant offers no reasonable distinction
between this case and Bernard, we hold that the test-refusal statute is constitutional and
appellant’s conviction for test refusal is affirmed.
II.
Appellant next argues that the circumstantial evidence at trial is insufficient to
support his conviction for driving while impaired.
“In assessing the sufficiency of the evidence, we review the evidence to determine
whether the facts in the record and the legitimate inferences drawn from them would
permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Al-Naseer, 788 N.W.2d 469,
473 (Minn. 2010) (quotation omitted). A conviction will not be reversed if the jury could
have reasonably found the defendant guilty of the charged offense, “giving due regard to
the presumption of innocence and the state’s burden of proof beyond a reasonable doubt.”
Id. (quotation omitted).
Appellant contends that the evidence of his alcohol impairment is circumstantial,
and the state does not dispute that contention. “A conviction based on circumstantial
evidence warrants heightened scrutiny.” See id. at 473-74. In applying the circumstantial
evidence standard, this court applies a two-step analysis. Id. (quotations omitted). The
first step is to “identify the circumstances proved.” Id. In identifying the circumstances
proved, we defer to the jury’s acceptance of the proved circumstances and reject evidence
in the record conflicting with the circumstances proved by the State. Id.; see also State v.
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McCormick, 835 N.W.2d 498, 505 n.2 (Minn. App. 2013) (noting that, when reviewing
the circumstances proved from a jury verdict of guilty, we evaluate what circumstances
the jury likely determined were proved and its likely determinations). The second step is
to determine the reasonableness of inferences drawn from those circumstances and
determine whether those reasonable inferences are consistent with guilt and inconsistent
with any other rational hypothesis. Al-Naseer, 788 N.W.2d at 474. We review
“circumstantial evidence not as isolated facts, but as a whole.” State v. Silvernail, 831
N.W.2d 594, 599 (Minn. 2013). “We give no deference to the fact finder’s choice
between reasonable inferences.” Al-Naseer, 788 N.W.2d at 474 (quotations omitted).
The following circumstances were proved by the state:
Appellant was sitting in the driver’s seat of a motor
vehicle on November 10, 2013, and the vehicle’s engine
was running.
Appellant smelled of alcohol and his eyes were bloodshot
and watery.
Appellant failed the horizontal gaze nystagmus test as
observed by Officer Lopez.
Appellant failed the walk-and-turn test, using his arms for
balance, missing touching his heel to his toe twice, and
otherwise not performing as he had been instructed.
Appellant passed the one-leg-stand test.
Appellant denied consuming alcohol.
Appellant refused to provide a breath sample for chemical
testing after being read the implied-consent advisory.
Officer Lopez, who was frequently assigned to night shifts
in which he observed people with “varying levels of
impairment,” concluded from these observable facts that
appellant was under the influence of alcohol.
Appellant argues that this case is similar to City of Eagan v. Elmourabit, 373
N.W.2d 290 (Minn. 1985). In Elmourabit, the supreme court concluded that “[t]he issue
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is a close one” and discussed how each factor proved was questionable, when taken
together. Elmourabit, 373 N.W.2d at 293-94. This case is easily distinguishable from
Elmourabit. English was “not [Elmourabit’s] native tongue,” there was evidence that he
was in “a heightened hyperventilative state,” that he had an “unsteady gait,” and the
arrest there occurred mid-day. Id. at 291, 293-94.
Appellant here failed two standard field sobriety tests, smelled of alcohol, had
watery and bloodshot eyes, and refused breath testing. Officer Lopez believed, based on
his observations, training and experience, that appellant was under the influence of
alcohol. These circumstances and this evidence admit of no rational conclusion other
than that appellant was under the influence of alcohol while operating a motor vehicle.
We therefore affirm appellant’s conviction of driving while impaired.
III.
Appellant argues that the district court abused its discretion by declining to grant
his motion for a downward dispositional departure from the sentencing guidelines.
We review a district court’s sentencing decision for an abuse of discretion. State
v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). A district court must impose the
presumptive sentence set forth by the Minnesota Sentencing Guidelines unless there are
“substantial and compelling circumstances” that warrant departure. State v. Kindem, 313
N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines 2.D (2012). The district court “has
broad discretion [with which] we will generally not interfere.” Kindem, 313 N.W.2d at 7.
It is a “rare case which would warrant reversal of the refusal to depart.” Id.
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Substantial and compelling circumstances are those that make a case atypical.
Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003). A defendant’s “particular
amenability to individualized treatment in a probationary setting” will support a
dispositional departure. Soto, 855 N.W.2d at 308 (quoting State v. Trog, 323 N.W.2d 28,
31 (Minn. 1982)). Trog outlines the factors that may justify a dispositional departure, and
states that “the defendant’s age, his prior record, his remorse, his cooperation, his attitude
while in court, and the support of friends and/or family, are relevant to a determination
whether a defendant is particularly suitable to individualized treatment in a probationary
setting.” 323 N.W.2d at 31. But the presence of one or more of the factors identified in
Trog does not require that a district court depart from the guidelines. State v. Wall, 343
N.W.2d 22, 25 (Minn. 1984); see also State v. Bertsch, 707 N.W.2d 660, 668 (Minn.
2006) (stating that “we will not ordinarily interfere with a sentence falling within the
presumptive sentence range, either dispositionally or durationally, even if there are
grounds that would justify departure” (quotation omitted)).
Appellant argues that the district court “failed to properly analyze the motion
according to the [Trog] factors.” While the district court did not specifically identify that
it was analyzing the “Trog factors,” the record reveals that the district court expressly
considered appellant’s age, family relationships, criminal history (including the breadth
of his criminal activity aside from DWI offenses), and appellant’s attitude toward
marijuana (specifically that appellant does not consider marijuana a drug). The district
court acknowledged that “I don’t doubt that [appellant] has a close relationship with his
family. And I don’t doubt that he is a good friend to his family and a good family
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member and that they feel very close to him.” But the district court also found that
“someone who has that opinion on the use of marijuana and has this history with DWIs,
from a statistical standpoint, is very likely to reoffend” and concluded that it had “to
consider the safety of the public as outweighing the right of the defendant to be free from
incarceration.” The district court also considered the seriousness of the offense in
mitigating the duration of the sentence (within the presumptive range), stating that “[t]his
particular DWI . . . apparently the police came upon the scene [and t]hey did not see any
erratic driving behavior or dangerous driving behavior by the [appellant a]nd so I’m
going to sentence [appellant] to the lower end of the box.”
The district court properly and comprehensively analyzed the factors and, within
its discretion, declined to dispositionally depart from the sentencing guidelines.
Affirmed.
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State of Minnesota v. Rodney Joseph Hill
Combined Opinion