State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A20-1125

State of Minnesota,
Respondent,

vs.

Tonia Nicole Williams,
Appellant.

Filed August 2, 2021
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-19-6407

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa V. Sheridan, Sharon E.
Jacks, Assistant Public Defenders, St. Paul, Minnesota (for appellant)

Considered and decid ed by Bratvold, Presiding Judge; Connolly, Judge; and
Hooten, Judge.
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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from her conviction of driving while impaired (DWI) test refusal,
appellant argues that (1) there was insufficient evidence to support her conviction; (2) the
district court plainly erred by failing to instruc t the jury that respondent needed to prove
that she intended to refuse the breath test; and (3) the prosecutor committed prejudicial
misconduct by eliciting improper opinion testimony from the state trooper. We affirm.
FACTS
Respondent State of Minnesota charged appellant Tonia Williams with felony
refusal to submit to a chemical test. At trial, the state presented evidence establishing that,
on March 17, 2019, at 1:12 a.m., Minnesota State Trooper Troy Utes was p arked on an
Interstate 94 entrance ramp, when he observed a vehicle drive by at about “a hundred miles
an hour—flying by all other traffic.” Trooper Utes gave chase, and when he caught up to
the vehicle, he observed that it had “whiskey plates” and was “weaving back and forth
within its lane.” Trooper Utes activated his lights to initiate a traffic stop, but the vehicle
did not stop. Instead, the vehicle “started to accelerate,” prompting the trooper to turn on
his squad car’s siren and spotlight and call for backup.
Trooper Utes followed the vehicle onto Interstate 694, where it eventually stopped.
Trooper Utes then approached the passenger side of the vehicle and observed that it was
occupied by two juvenile male passengers, as well as the driver, whom he identified as
Williams. As he spoke with Williams, Trooper Utes “could smell an odor of alcoholic
beverage coming from the car and observed that [Williams’s] eyes appeared to be
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bloodshot and watery.” The trooper also observed that there was an “ignition interlock ”
device that was installed in the vehicle. Trooper Utes explained that ignition interlock
devices “are placed in vehicles, generally from prior DWI offenses.” According to Trooper
Utes, these devices require that the driver blow into them to start the vehicle, and then re-
blow into them at intervals while they are driving to keep the vehicle running.
Based on his observations, Trooper Utes directed Williams to step out of the vehicle
to begin administering field sobriety tests. The trooper began with the horizontal -gaze
nystagmus (HGN) test, which he made it “most of the way” through before Williams began
arguing and stopped complying. But although he was unable to finish the HGN test,
Trooper Utes observed “four of the six clues” indic ating impairment. And while she was
outside of the vehicle, the trooper “could still smell alcohol coming from [Williams].”
Because of Williams’s argumentative demeanor, Trooper Utes ended field sobriety
testing and attempted to administer a preliminary b reath test (PBT). Trooper Utes gave
Williams two opportunities to provide a PBT sample, but each time, she would put her
mouth on the straw, puff her cheeks, and not “blow any air” into the device. Trooper Utes
then informed Williams that he was placing her under a rrest, prompting Williams to try
and “push past” the trooper. Trooper Utes claimed that he and another trooper “physically
had to grab her” and “stop her,” and place her in the back seat of the squad car.
After she was placed in the squad car, Trooper Utes attempted to administer a third
PBT. But according to the trooper, Williams exhibited the same conduct, “where she
puffed her cheeks up and didn ’t blow.” During this test, Trooper Utes used the “manual
capture button where I can just manually capt ure whatever air is in” the device. Trooper
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Utes explained that “I just captured the air that was around her mouth and obtained [an
alcohol concentration] reading of .065 at that point without her blowing any air into it.”
Trooper Utes transported Williams to the county jail where she was read the implied
consent advisory. The advisory informed Williams that refusal to take a breat h test is a
crime. After speaking with an attorney, Williams agreed to take a breath test. But
according to Trooper Utes, “Williams did the same thing she did on the side of the road—
where she just kind of puffed her cheeks up [and] didn’t blow any air into it.”
Trooper Utes treated the situation as a test refusal and Williams was booked on that
charge. During a search of Williams’s purse incident to her arrest, law enforcement found
LorazepaM and Hydrocodone pills. According to Trooper Utes, LorazepaM is “commonly
used to treat anxiety,” and is “considered a central nerve system depressant, which . . . has
a similar effect that alcohol would be in your system.”
The defense presented the testimony of both of Williams’s juvenile passengers. One
of the juveniles testified that he did not see Williams consume alcohol on the night of
March 16, 2019, and the other testified that he observed her, and nobody else, blow into
the ignition interlock device. Williams testified that she was not drinking the night she was
stopped, and claimed that she blew into the ignition interlo ck device at 1:12 a.m. on
March 17, 2019. Williams also testified that she did not intend to refuse the breath test,
claiming that she was “blowing” in the same manner as she blew into the interlock device.
A jury found Williams guilty of first -degree DWI-test refusal. The district court
sentenced Williams to 42 months in prison, but stayed execution of that sentence, and
placed her on probation for three years. This appeal follows.
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DECISION
I.
Williams challenges the sufficiency of the evidence su pporting her conviction .
When reviewin g a sufficiency-of-the-evidence challenge, we examine the record “to
determine whether the evidence and reasonable inferences drawn therefrom, viewed in a
light most favorable to the verdict, were suffi cient to allow the jury to reach its verdict.”
State v. Hohenwald , 815 N.W.2d 823, 832 (Minn. 2012) (quotation omitted). In
conducting this review, this court assumes that the jury “believed the state’s witnesses and
disbelieved any evidence to the contrary.” Id. We will not “disturb a verdict if the jury,
acting with due regard for the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the
defendant was proven guilty of the offense charged.” State v. Flowers, 788 N.W.2d 120,
133 (Minn. 2010) (quotation omitted).
The above-stated standard of review applies so long as a conviction is adequately
supported by direct evidence. State v. Horst , 880 N.W.2d 24, 39 (Minn. 2016) . Direct
evidence is “evidence that is based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption.” State v. Harris , 895 N.W.2d 592, 599
(Minn. 2017) (quotation omitted). Conversely, circumstantial evidence is “evidence from
which the factfinder can infer whether the facts in dispute existed or did not exist.” Id.
(quotation omitted). A conviction depends on circumstantial evidence if proof of the
offense, or a single element of the offense, is based solely on circumstantial evidence. See
State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014).
6
If a conviction necessarily depend s on circumstantial evidence, a reviewing court
applies a heightened standard of review. Id. The review applicable to circumstantial
evidence consists of a two-step analysis. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014).
First, the circumstances proved are identified. See id. “In identifying the circumstances
proved, we assume that the jury resolved any factual disputes in a manner that is consistent”
with the v erdict. Id. Second, “we examine independently the reasonableness of the
inferences that might be drawn from the circumstances proved” and “determine whether
the circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Id. (quotations omitted). At the second step of the
analysis, this court gives no deference to the jury’ s verdict. Loving v. State, 891 N.W.2d
638, 643 (Minn. 2017). In assessing the circumstances proved and the inferences that may
be drawn from them, we consider the evidence as a whole rather than examining each piece
of evidence in isolation. State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
Here, Williams was convicted of refusal to submit to a chemical breath test under
Minn. Stat. § 169A.20, subd . 2(1) (2018). To be convicted of that offense, the state was
required to prove, among other things, that at the time of arrest, police had probable cause
that Williams drove, operated, or had physical control of the vehicle while impaired. See
Minn. Stat. §§ 169A.51, .52 (2018) ; see also Minn. Stat. § 169A.20, subd. 2 (2018)
(incorporating sections 169A.51, .52 ); State v. Ouellette , 740 N.W.2d 355, 3 60 (Minn.
App. 2007) (holding that prerequisites for testing under section 169A.51 are elements of
criminal test refusal), review denied (Minn. Dec. 19, 2007). Probable cause to arrest for
DWI exists if the circumstances at the time of arrest reasonably warrant a prudent, cautious
7
officer to believe the person was driving while under the influence of alcohol. Reeves v.
Comm’r of Pub. Safety, 751 N.W.2d 117, 120 (Minn. App. 2008).
Williams argues that the “state failed to prove beyond a reasonable doubt that, when
the trooper asked for a breath sample, there was probable cause that Williams was under
the influence of alcohol.” She argues that, when addressing this issue, we should apply the
circumstantial-evidence standard of review because inferences from an officer’s direc t
observations “must be made to prove probable cause as an element of test refusal.”
Williams contends that, upon application of the circumstantial -evidence standard of
review, her conviction cannot stand because there is a “rational inference from the
circumstances proved” that when Trooper Utes asked her to take the breathalyzer, “there
was probable cause she was taking and affected by her prescription medication.”
Williams’s argument is unavailing. The underlying fact s establishing probable
cause were based on the trooper’s direct observations. Moreover, Williams cites no case,
precedential or otherwise, applying the circumstantial -evidence standard of review to a
sufficiency-of-the-evidence challenge related to the probable -cause element in a test-
refusal case. We, therefore, apply the direct -evidence standard of review to Williams’s
sufficiency-of-the-evidence challenge.
The record reflects that Trooper Utes observed Williams driving her vehicle at
approximately 100 miles per hour and “weaving back and forth within [her] lane.” He also
observed that Williams’s vehicle had “whiskey plates,” and that she did not stop
immediately after the trooper activated his squad -car lights. The squad -car video
corroborates Trooper Utes’s observations of W illiams’s erratic driving, which can be
8
indicia of intoxication. See State v. Driscoll , 427 N.W.2d 263, 265 (Minn. App. 1988)
(stating that erratic driving and failing to observe traffic laws can be indicia of
intoxication).
Moreover, Trooper Utes “could smell an odor of alcoholic beverage coming from
the car and observed that [Williams’s] eyes appeared to be bloodshot and watery.” He also
observed four clues of impairment during his administration of the HGN test. In addition,
when Trooper Utes attem pted to administer the PBT, Williams would not “blow any air”
into the device. And during his administration of the HGN test and PBT test, Williams
became agitated and uncooperative. Each of these indications can constitute indicia of
impairment. See State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (acknowledging
that recognized indicia of impairment include an odor of alcohol, bloodshot and watery
eyes, and an uncooperative attitude), review denied (Minn. June 15, 2004).
“An officer needs only one objective indication of intoxication to constitute
probable cause to believe a person is under the influence.” Id. (quotation omitted); Holtz
v. Comm’r of Pub. Safety , 340 N.W.2d 363, 365 (Minn. App. 1983) (stating that a police
officer “need only have o ne objective indication of intoxication to constitute reasonable
and probable grounds to believe a person is unde r the influence”). Here , Trooper Utes
directly observed several indications of impairment. Accordingly, direct evidence supports
the jury’s determination that Trooper Utes had probable cause that Williams was driving
while impaired.
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II.
Williams argues that the district court erred by failing “to instruct the jury on a
critical offense element: that the state had to prove beyond a reasonable doubt Williams
intended to refuse the breath test.” We review jury instructions in their entirety to assess
whether the instructions “fairly and adequately explain the law” and reviewing courts “give
district courts broad discretion and considerable latitude in choosing the language of jury
instructions.” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted).
Where, as here, the jury instructions were not objected to at trial, the plain-error
standard of review is applicable. Id. The district court plainly errs if there is (1) an error,
(2) that is plain, and (3) that affected the defendant’ s substantial rights. Id. An error is
plain if it contravenes caselaw, a rule, or a s tandard of conduct. State v. Ramey , 721
N.W.2d 294, 302 (Minn. 2006). If the three prongs of the plain-error test are met, this court
then decides whether the error must be addressed “to ensure fairness and the integrity of
the judicial proceedings.” Milton, 821 N.W.2d at 805 (quotation omitted).
As addressed above, “[i]t is a crime for any person to refuse to submit to a chemical
test . . . of the person’s breath” once requested to do so by a police officer who has probable
cause to believe the person has been operating a motor vehicle while impaired. Minn. Stat.
§ 169A.20, subd. 2(1); Minn. Stat. § 169A.51, subd. 1(b). If a driver’s conduct frustrates,
delays, or defeats the testing process, it constitutes a refusal. State v. Collins, 655 N.W.2d
652, 658 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003); see also State v.
Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010) (stating that refusal may be done verbally
or through conduct), review denied (Minn. Mar. 15, 2011). Test refusal may be explicit or
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may be inferred from the totality of the circumstances. Ferrier, 792 N.W.2d at 101. As a
result, this court held in Ferrier, that “refusal to submit to chemical testing inc ludes 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.” Id. at 102.
Here, the district court instructed the jury, in relevant part, that:
A failure to complete the entire test is a refusal. In the
case of a breath test, the entire test must consist of one adequate
breath sample analysis, one calibration standard analysis, and
a second adequate breath sample analysis. Refusal can be
shown in a number of ways, including a verbal refusal, an
indication of unwillingness to comply, or actions that frustrate
the testing process.

Williams contends that because the “state alleged Williams was deemed to have
refused a breath test by conduct not words,” even though Williams “repeatedly agreed to
take the test,” the district court’s “failure to instruct the jury that they had to find Williams
intended to refuse the test contravened Ferrier and constituted plain error.” We disagree.
In Ferrier, this court analyzed the language of the test -refusal statute and concluded that
the statute requires a volitional act because the phrase “to refuse” plainly means “to indicate
unwillingness to do, accept, give, or allow something.” Id. at 101 (quotation omitted).
This court articulated the requisite mens rea as “[a]c tual unwillingness to submit to
testing.” Id.
The jury instruction here required proof of “unwillingness to comply, or actions that
frustrate the testing process.” This language accurately states the law. Although the jury
instruction did not state t hat a test refusal must be shown by an “ actual unwillingness” to
submit to testing, and instead stated that it can be shown by an “indication of unwillingness
11
to comply,” such language is consistent with Ferrier. See Ferrier, 792 N.W.2d at 102
(stating th at “refusal to submit to chemical testing includes any indication of actual
unwillingness to participate in the test process” (emphasis added)). Accordingly, the
district court’s jury instructions were not plainly erroneous.
III.
Williams contends that the prosecutor committed prejudicial misconduct by
eliciting improper opinion testimony from Trooper Utes. A prosecutor’s failure to prepare
his or her witnesses prior to trial and subsequent eliciting of inadmissible testimony may
constitute misconduct. State v. Richmond, 214 N.W.2d 694, 695 (Minn. 1974).
At trial, the prosecutor asked Trooper Utes: “Based on your training and experience
and your observations of [Williams], did you form an opinion as to whether [she] refused
to submit to testing of her breath?” The trooper responded: “Yes, ma’am.” The prosecutor
also asked the trooper if Williams’s conduct constituted a “refusal under the . . . law?” The
trooper answered, “Yes.” And the prosecutor elicited testimony from Trooper Utes
referencing the breath-test machine’s printout as an indication of a test refusal, as well as
opinion testimony from the trooper that Williams “had no intention of providing any breath
sample.”
Williams argues that the elicitation of the above -referenced testimony constitutes
prosecutorial misconduct that affected her substantial rights. Because Williams did not
object to the alleged prosecutorial misconduct at trial, the modified plain-error standard of
review is applicable. See Ramey, 721 N.W.2d at 302. Under this standard, the defendant
must “demonstrate both that error occurred and that the error was plain.” Id. If such a
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showing is made, the burden shifts to the prosecution to demonstrate a lack of prejudice;
in other words, that the misconduct did not affect substantial rights. Id. When examining
a claim of prejudicial error, appellate courts focus on the strength of the evidence, the
pervasiveness of the error, and whether the defendant rebutted the improper evidence.
State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
Assuming, without deciding, that the prosecutor committed misconduct, we
conclude that the state has met its burden of proving that there is no reasonable likelihood
that the absence of the misconduct would have had a significant effect on the verdict of the
jury.1 See Ramey, 721 N.W.2d at 302. Trooper Utes testified at length about Williams’s
indicia of intoxication, her lack of cooperation in the administration of the PBT, and her
subsequent lack of cooperation with the breath -test machine at the jail. Moreover, the
audio of a video was introduced into evidence depicting Williams’s failure to blow during
the three minutes of allotted time for the breath-test machine. The audio of the video also
depicted Williams arguing with the trooper, rather than trying to provide a breath sample.
And the state introduced the printout from the machine showing that Williams failed to
provide a normal breath sample. Given the substantial evidence supporting a finding that

1 In her reply brief, Williams argues that the state has forfeited any argument that the
alleged prosecutorial misconduct affected Williams’s substantial rights because the state
only addressed the issue in a footnote. But the state was not raising the argument on appeal.
And although the supreme court has stated that it “may assume that in a direct appeal, the
state’s failure to assert a harmless -error argument in its responsive brief is waiver of the
harmlessness issue,” the court explained that there is an exception if “it is ‘obvious’ that
the district court’s error was harmless.” State v. Porte, 832 N.W.2d 303, 313 (Minn. App.
2013).
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Williams, by her conduct, was uncooperative in providing an adequate breath sample, we
conclude that any prosecutorial misconduct did not affect Williams’s substantial rights.
Affirmed.