State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0441

State of Minnesota,
Respondent,

vs.

Vantavian Levell Duckworth,
Appellant.

Filed February 24, 2020
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-18-22711

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Vantavian Duckworth challenges his conviction of chemical-test refusal, arguing
that the evidence is insufficient to prove that he actually refused testing. We affirm because
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the only reasonable inference derived from the circumstances of Duckworth’s repeatedly
refusing to plainly answer whether he would submit to the requested test is that he was
unwilling to take the test.
FACTS
Shortly after a midnight in S eptember 2018, Minnesota State Trooper Jonathan
Lehman saw a car behind him on the interstate not using its headlights. The trooper slowed,
but the car would not pass. Trooper Lehman pulled the car over. Before the trooper
approached the car, he watched the driver, whom he later identified as Vantavian
Duckworth, crawl from the front seat into the back seat. By the time the trooper reached
Duckworth’s car, Duckworth was sitting in the back seat, feigning sleep.
Trooper Lehman coaxed Duckworth from the car. But Duckworth bolted,
attempting to flee down the shoulder. Trooper Lehman and another trooper caught
Duckworth, who briefly resisted arrest. The troopers could not immediately identify
Duckworth, who possessed no driver’s license, refused to say his name, and clenched his
fists to defeat fingerprint-identification technology. Duckworth turned away when Trooper
Lehman tried to administer a preliminary breath test. Trooper Lehman told Duckworth he
was under arrest for driving under the influence and obstruction, and he took him to jail.
Before removing Duckworth from his squad car, the trooper read the
implied-consent advisory informing Duckworth that the law required him to submit to a
breath test, that he had the right to speak with an attorney before deciding whether to
submit, and that test refusal is a crime. Duckworth said he understood. He initially said he
wanted to consult with an attorney, but when the trooper handed him a telephone and phone
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book, Duckworth asked unrelated questions and then said that he did not want to talk with
an attorney. Trooper Lehman asked if Duckworth would agree to take a breath test, and
Duckworth said yes. But when he tried to remove Duckworth from the squad car for testing,
Duckworth hesitated and engaged the trooper in the following Abbot t-and-Costello-esque
exchange about the breath-test question:
TROOPER: Okay, so attorney time stopped at 0152 hours.
Will you take a breath test?

DUCKWORTH: Yes.

TROOPER: Okay. [Implied consent] date completed on
09-09-18, time completed is 0152 hours. Okay, he wants to
take a breath test.

[Brief exchange with jailer.]

TROOPER: Okay, sir, you gonna be cool with me and
everything?

DUCKWORTH: I didn’t tell y ’all—see how you was
switching up words, you said I said I wanna take a breath
[test], I never said I want to.

TROOPER: I said will you take a breath test? I read it ex—
exactly from this.

DUCKWORTH: I’m not gonna refuse a breath test. If you’re
asking me to take a breath test I won’t refuse one.

TROOPER: I said will you take a breath test and you said yes.

DUCKWORTH: If I don’t have to, I don’t have to—if I don’t
have to I won’t, but . . .

TROOPER: Okay, so you don’t want to?

DUCKWORTH: But if you tell me to, if you tell me to I will,
I won’t refuse one.
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TROOPER: I can’t give legal advice, sir.

DUCKWORTH: That’s not legal advice.

TROOPER: Yes, it is legal advice.

DUCKWORTH: I’m not gonna refuse a breath test.

TROOPER: Okay, so you wanna take one?

DUCKWORTH: I’m not gonna refuse a breath test.

TROOPER: Okay, so will you—all right, we’re gonna go—

DUCKWORTH: I will not refuse a breath test. I will not refuse
a breath test. I’m not saying I want—

TROOPER: Okay, John Doe wants to revisit his [ implied
consent]. I’m gonna begin back where it say s, will you take a
breath test?

DUCKWORTH: Do you want me to take a breath test?

TROOPER: I’m asking y ou the question from the breath-test
advisory. Will you take the breath test?

DUCKWORTH: If that’s what you want me to do.

TROOPER: I can’t give legal advice, sir.

DUCKWORTH: That’s not legal advice, I’m s aying if you
want me to I will.

TROOPER: No, I can’t tell you that.

DUCKWORTH: I’m not gonna—I’m not gonna just take one
unless I have to, but if you want me to I will.

TROOPER: Okay. I’m gonna ask again, will you take a breath
test?

DUCKWORTH: I won’t refuse a breath test.

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TROOPER: I’m gonna ask you one more time, will you take a
breath test?

DUCKWORTH: I will not refuse a breath test.

TROOPER: Okay, so your reason for refusing is you will not
refuse a breath test, is that correct?

DUCKWORTH: That don’t make sense what you just said to
me.

TROOPER: Okay. What is your reason for refusing then?

DUCKWORTH: I’m not refusing.

TROOPER: Okay, you’re not refusing.

DUCKWORTH: No, I’m not refusing.

TROOPER: Okay. So I’m gonna ask you agai n, will you take
a breath test?

DUCKWORTH: If you want me to.

TROOPER: That’s not—I’m asking you a question, will—

DUCKWORTH: If you want me to. If you want me to take it—
if you tell me I have to take a breath test then I—

TROOPER: I can’t tell you anything.

DUCKWORTH: You can—

TROOPER: I can’t give legal advice.

DUCKWORTH: You—you—

TROOPER: Okay, so I’m gonna ask you one more tim e, will
you take a breath test?

DUCKWORTH: I’m confused.

TROOPER: What are you confused about?
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DUCKWORTH: I’m confused about your question.

TROOPER: Will you take a breath test? That’s what you’re
confused about?

DUCKWORTH: Do you want me to take one?

TROOPER: I can’t answer that, sir.

DUCKWORTH: What you mean you can’t answer that?

TROOPER: Because . . .

DUCKWORTH: Do you want me to take a breath test? If you
want me to take a breath test will—I will take one if you want
me to take one.

TROOPER: I’m gonna ask you one more time, will you take
the breath test?

DUCKWORTH: They can—why they can’t come and see and
listen to this conversation?

TROOPER: It’s all being recorded.

DUCKWORTH: So they can’t listen to our conversation? So
if you say—I never refused a breath test. I never refused—you
just said . . .

TROOPER: [Inaudible].

DUCKWORTH: You just said on that thing that I refused a
breath test, I never refused a breath test.

TROOPER: [Inaudible] take a breath test.

DUCKWORTH: That’s what you said. That’s what you said, I
refused a breath test and when did I refuse it? I never refused a
breath test. You never even gave me a breath test to refuse.

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TROOPER: So you said um you’re give —and—and do you
want me to answer, do you want— want me to take a breath
test? And I can’t give you legal advice. Okay?

DUCKWORTH: Are you —are you make —are you —are
you—are you ordering me to take a breath test?

TROOPER: No, I’m not ordering you at all.

DUCKWORTH: So how did I refuse it?

TROOPER: Okay, so . . .

DUCKWORTH: How did I refuse it?

TROOPER: So sub—subject continues to ask questions, so
I’ve read him um, will you take a breath test eight times and he
refuses to answer.

DUCKWORTH: How—how . . .

TROOPER: [Implied consent] is ended at 0156 hours.

Trooper Lehman concluded that Duckworth had refused to take a breath test. The
state charged Duckworth with driving under the influence of alcohol, test refusal, and
driving after license cancellation. A jury heard a recording of the exchange between
Duckworth and the trooper. It found Duckworth guilty of test refusal and driving after
cancellation. Duckworth appeals only his test-refusal conviction.
D E C I S I O N
Duckworth argues that the state’s evidence was insufficient to support his
conviction for test refusal. The state had the burden to prove that Duckworth “refuse[d] to
submit to a chemical test” of his breath. Minn. Stat. § 169A.20, subd. 2(1) (2018). The only
element that Duckworth challenges is that he in fact refused to submit to testing. Refusal
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is “[a]ctual unwillingness to submit to testing.” State v. Ferrier, 792 N.W.2d 98, 101
(Minn. App. 2010), review denied (Minn. Mar. 15, 2011). When a defendant does not
expressly “refuse,” his intent to refuse can be proved by circumstantial evidence
comprising “the driver’s words and actions in light of the totality of the circumstances.”
Id. at 102. Refusal occurs when the driver’s conduct frustrates the testing process. Busch
v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259–60 (Minn. App. 2000).
Because the state’s case rested on circumstantial evidence of Duckworth’s
unwillingness to test, we will apply heightened scrutiny to review the sufficiency of the
evidence. See Ferrier, 792 N.W.2d at 102. We first identify the circumstances proved by
the state, deferring to the jury’s acceptance of proof of the circumstances and its rejection
of conflicting evidence. State v. Andersen , 784 N.W.2d 320, 329 (Minn. 2010). We then
consider whether the circumstances proved are consistent with any reasonable hypothesis
other than the defendant’s guilt. Id. The state proved the following circumstances:
• Duckworth drove his car on the interstate in the dark without headlights;
• Duckworth intentionally avoided passing the trooper’s car;
• Duckworth leapt into his back seat immediately after being stopped to feign
having been sleeping rather than driving;
• Duckworth initially ignored orders to leave the car;
• Duckworth attempted to flee as he exited the car;
• Duckworth resisted arrest;
• Duckworth refused to disclose his identity;
• Duckworth refused to allow a preliminary breath test;
• Duckworth heard and understood the implied -consent advisory, understood
his duty to take a breath test, and understood the criminal consequences of
refusing;
• Duckworth understood that he could speak with an attorney before deciding
whether to take a breath test;
• Duckworth initially requested but then declined to speak with an attorney;
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• Duckworth said “yes,” he would take a breath test, followed by a lengthy
exchange during which he denied having said he would take a breath test,
would not recommit his answer agreeing to test, and refused to answer the
frequently repeated request, “Will you take a breath test?”; and
• Duckworth repeatedly said that he would take a breath test if the trooper
wanted him to and that he would not refuse a breath test, but he never agreed
to actually take the test.

These circumstances support only one reasonable conclusion, which is that
Duckworth was unwilling to take a breath test. His verbal equivocation and wordplay about
the breath test paralleled the evasive, uncooperative, and resistant conduct he engaged in
from the moment he realized the trooper sought to stop him. His behavior can be interpreted
only as reflecting his attempt to fabricate a reality other than the objectively obvious one.
His oral exchange about the breath test immediately followed his other conduct, which
provided the context for it; he had just tried to avoid being stopped, to avoid being
recognized as the driver, to avoid being identified at all, to avoid speaking with the trooper,
to avoid participating in field sobriety tests, and to avoid being arrested. Duckworth’s effort
to avoid the criminal consequences of refusing the chemical test by saying he was not
refusing while actually refusing is as transparent (and unconvincing) as his feigned
back-seat nap.
We are not persuaded otherwise by cases in which we inferred refusal from conduct.
In Busch v. Commissioner of Public Safety, we held that a driver was frustrating the testing
process when he would not respond after the officer read him the implied-consent advisory
multiple times. 614 N.W.2d at 257, 260. We also upheld a test-refusal conviction when a
driver began screaming and swearing during an officer’s attempt to read the
implied-consent advisory. State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003),
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review denied (Minn. Mar. 26, 2003). That Duckworth’s defiance was more calculating
than belligerent does not prevent our holding that the jury had ample circumstantial
evidence to infer that he was being intentionally uncooperative in the process and therefore
actually refused to provide a breath sample for chemical testing.
Duckworth offers one circumstantial-evidence hypothesis other than guilt, which is
that he was merely confused by the questions and was seeking to clarify his legal duties .
None of the circumstances, let alone all of them in totality, support this hypothesis. The
advisory informed Duckworth directly that “Minnesota law require[d]” the test and that
refusing it was a crime. Duckworth’s clear statement that he understood the advisory and
his initially explicit agreement to take the breath test belie his claim of confusion. And
nothing in the nature of the exchange indicates that he was confused about what he was
being asked to decide. The record implies only that Duckworth sought to confuse the
discussion obstructively, not that he was confused by it.
Duckworth loosely suggests that the jury’s verdict may have been improperly
influenced by misleading testimony and the prosecutor’s supposedly improper closing
argument. We need not address these issues on their merits. This is because the issues are
at most merely suggested; Duckworth never expressly raises the issue of prosecutorial
misconduct, and he does not develop any argument in support of the proposition. See State
v. Krosch, 642 N.W.2 d 713, 719 (Minn. 2002) (observing that allegations on appeal are
deemed forfeited when they contain no argument or citation to supporting legal authority).
We will not consider the suggestion further.
Affirmed.