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This opinion is nonprecedential except as provided by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
A21-0855

State of Minnesota,
Respondent,

vs.

Olusegun Adebayo Osunlana,
Appellant.

Filed December 27, 2021
Affirmed
Rodenberg, Judge*

Ramsey County District Court
File No. 62SU-CR-19-2964

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

Martin H.R. Norder, Kelly & Lemmons, P.A., St. Paul, Minnesota (for respondent)

Karen Venice Bryan, KB Law PLLC, Minnetonka, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Gaïtas , Judge; and
Rodenberg, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
RODENBERG, Judge
Appellant Olusegun Adebayo Osunlana was arrested and charged with second-
degree refusal to submit to a chemical test and third-degree driving while impaired. A jury
found appellant guilty of both offenses. Appellant appeals, arguing that the evidence is
insufficient to prove either offense beyond reasonable doubt. We affirm.
FACTS
Appellant was driving to a friend’s house when a police officer saw him drift over
the centerline several times. The officer stopped appellant at about 1:00 a.m., according to
the timestamp on the officer’s body -worn camera. Appellant told the officer that he had
not been drinking alcohol that evening. B ut the officer smelled alcohol wafting from the
car and observed that appellant had red, bloodshot, and watery eyes. He asked appellant to
perform three field sobriety tests: the horizontal gaze nystagmus test, the walk- and-turn
test, and the one-leg stand test.
During the horizontal gaze nystagmus test, the officer observed “a lack of smooth
pursuit in both of [appellant’s] eyes, as well as an onset of nystagmus prior to 45 degrees.”
When appellant performed the walk-and- turn test, he completed zero heel-to-toe steps,
turned improperly, and took ten steps instead of the nine as directed. On his first attempt
of the one-leg stand test, appellant could only lift his foot off the ground for three seconds
despite being instructed to do so for 30 seconds. On his next attempt, appellant lifted his
foot and immediately lost his balance. On his final attempt, appellant kept his foot in the
air for 12 seconds but failed to count out loud as he had been instructed.
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The officer administered a preliminary breath test (PBT). The screen displaying the
results of the PBT is partially obstructed in the body-camera recording, but the officer told
appellant that his alcohol concentration was 0.14. Appellant asked the officer to see the
results as displayed on the machine. Consistent with his preferred practice, the officer did
not let appellant see the machine. At trial, when the body-camera recording was paused at
the moment the machine was displaying the results, the officer said that he could read the
tops of the numbers, and they were either 0.11 or 0.14.
The officer arrested appellant and transported him to the police station. He read
appellant the implied-consent advisory. The officer informed appellant that he needed to
supply a breath sample for alcohol-concentration testing, that refusing to take the test was
a crime, and that unreasonably delaying or refusing to decide would amount to refusing to
take the test. Appellant testified at trial that he understood that refusing to decide whether
to take the test would equate to refusing the test. He did not provide a sample. Appellant
testified that he did not take the test because he did not trust the officer after the officer
declined to show him the results of the PBT. He asked the officer if someone else could
administer the test. The officer did not grant appellant’s request. Appellant then refused to
answer when the officer asked appellant if he was ready to take the test.
At trial, appellant disputed the officer’s testimony and the body-camera recording.
He said that on the night of his arrest, he got off work, went home, and had one bottle of
beer around 9:00 p.m. About two-and-a-half hours later a friend called him and asked for
assistance with a computer problem. Appellant therefore disputed that the stop occurred at
1:00 a.m., claiming it happened over an hour earlier. Appellant asserted that the officer was
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lying about the results of the PBT. After watching the body-camera recording, he declared
that he did not stumble during the one-leg stand test and that he did “everything [the officer]
asked me to do.” The jury found appellant guilty of both offenses.
This appeal followed.
DECISION
Appellant challenges his convictions for second-degree refusal to submit to a
chemical test and third-degree driving while impaired, contending that the evidence is
insufficient to prove either charge beyond reasonable doubt.1
Direct or circumstantial evidence may be used to prove an offense beyond
reasonable doubt. “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 and alteration omitted).
Circumstantial evidence is “evidence from which the fact[-]finder can infer whether the
facts in dispute existed or did not exist.” Id. (quotation omitted). We use different standards

1 Appellant also argues that the district court failed to “afford [him] the presumption of
innocence and the benefit of all reasonable inferences.” But he does not argue that the
district court’s jury instructions were incomplete, inappropriate, insufficient, or unclear.
The district court instructed the jury that, “The defendant is presumed innocent of the
charges made. This presumption remains with the defendant unless and until the defendant
has been proved guilty beyond a reasonable doubt.” Appellant testified at trial and, by the
verdicts it returned, the jury rejected that testimony beyond reasonable doubt. The essence
of appellant’s argument on this issue is that the jury ought to have weighed the evidence
differently than it did. “An assignment of error based on mere assertion and not supported
by any argument or authorities in appellant’s brief will not be considered on appeal unless
prejudicial error is obvious on mere inspection.” Louden v. Louden, 22 N.W.2d 164, 166
(Minn. 1946). We therefore do not further consider appellant’s argument, which amounts
to mere disagreement with the trial’s outcome.
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of review for the different types of evidence to determine whether “the facts 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. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation and citations
omitted).
When a conviction is based on direct evidence, we comprehensively review the
record to determine whether the evidence, when viewed in the light most favorable to the
conviction, is sufficient to allow the jury to reach the verdict that it did. State v. Horst, 880
N.W.2d 24, 40 (Minn. 2016). We assume the jury believed the state’s witnesses and
disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
We apply the circumstantial-evidence standard of review when proof of an element
depends on circumstantial evidenc e. State v. Porte, 832 N.W.2d 303, 309 (Minn. App.
2013). This requires a two-step analysis. First, we identify the circumstances proved by the
state. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). In doing so, we construe
conflicting evidence in the light most favorable to the verdict and assume that the jury
believed the state’s witnesses and disbelieved the defense’s witnesses. Id. at 599. Second,
we determine whether the circumstances proved are consistent only with guilt and
inconsistent with any rational hypothesis except that of guilt. Id.
Here, we conclude that the direct evidence produced at trial sufficiently supports the
jury’s conclusions that appellant is guilty of both offenses. Alternatively, and even if we
apply the circumstantial-evidence standard, the evidence is sufficient.

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I. Sufficient evidence supports appellant’s conviction for second-degree driving
while impaired for refusing to submit to a chemical test.

Appellant argues that the state presented insufficient evidence to support his
conviction for refusing to submit to a chemical test. To convict someone for second-degree
test refusal, the state must prove five elements. See Minn. Stat. §§ 169A.20, subd. 2 (2018)
(criminalizing refusing to submit to a test), .51, subd 1(a), 1(b)(2), (4) (2018) (dictating
procedural requirements for administering chemical tests). Appellant ’s argument that the
evidence is insufficient relates only to the element that requires proof that appellant refused
to submit to the test. A person does not need to expressly refuse a test to be convicted;
instead, “any indication of actual unwillingness to participate in the testing process, as
determined from the driver’s words and actions” constitutes refusing the test. State v.
Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), rev. denied (Minn. Mar. 15, 2011).
Appellant argues that the only evidence presented by the state was circumstantial
evidence. We disagree. The record contains direct evidence that appellant refused to submit
to the chemical test. Appellant testified that he knew that refusing to decide whether to take
the test would amount to refusing to take the test. The officer asked him six times whether
he would take the test. Appellant remained silent, asking only that a different operat or
administer the test. He continued his refusal after being told that his request for a different
operator was denied. No inference is needed to determine that appellant refused the test.
Based on this evidence, the jury reasonably concluded beyond a reasonable doubt that
appellant refused the test.
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Even if we consider the evidence of refusal to be circumstantial—which we do
not—the evidence would still be sufficient to support the jury’s verdict on the refusal count.
No reasonable inference can be drawn from the circumstances proved that is inconsistent
with appellant refusing to take the test.
After arriving at the police station, the officer read appellant the breath-test
advisory. He told appellant that refusing to decide would be considered a refusal to take
the test. Appellant asked the officer whether he could have someone else administer the
test and the officer refused the request. Appellant argued with the officer about being
unable to see the results of his PBT. The officer asked appellant whether he would take the
test six times, and eventually, appellant refused to answer the question. Even if this
evidence of repeatedly declining to answer is considered to be circumstantial evidence, the
only reasonable inference that can be drawn from the evidence consistent with the jury’s
verdict is that appellant refused to submit to the test.
II. Sufficient evidence supports appellant’s conviction for third- degree driving
while impaired.

Appellant also argues that the state presented insufficient evidence to support his
conviction for third-degree driving while impaired. The state needed to prove beyond a
reasonable doubt: (1) that the defendant drove a vehicle, and (2) while the defendant was
driving, he was under the influence of alcohol. See Minn. Stat. 169A.20, subd. 1(1) (2018).
Appellant’s specific challenge on appeal is that there is insufficient evidence that he was
under the influence of alcohol.
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A person is under the influence of alcohol when he does not “possess that clearness
of intellect and control” he otherwise would have. State v. Graham, 222 N.W. 909, 911
(Minn. 1929).
Here again, direct evidence supports appellant’s conviction. The officer testified
that appellant crossed the centerline multiple times while driving. The smell of alcohol was
wafting from appellant’s vehicle and appellant’s eyes were bloodshot and watery.
Appellant seems to have been confused about what time it was when he was stopped. The
body-camera recording showed appellant failing the walk-and-turn test and the one-leg
stand test. The officer testified that the horizontal gaze nystagmus test showed indications
that appellant was impaired.
Based upon his experience and training, the police officer opined that appellant was
under the influence of alcohol. That opinion testimony is direct evidence. The officer
further testified that the PBT results revealed alcohol in appellant’s system. The PBT result
of either .11 or .14 is direct evidence of appellant’s alcohol concentration. No inference is
required. See State v. Brazil, 906 N.W.2d 274, 278-79 (Minn. App. 2017) (holding that the
DataMaster breath test is direct evidence of a test subject’s alcohol concentration), rev.
denied (Minn. Mar. 20, 2018)
2. The confluence of opinion testimony and evidence of the

2 Although this case involves a PBT, and Brazil involved a DataMaster, the evidence of the
PBT measurement of appellant’s alcohol concentration was admitted into evidence at trial,
appellant did not object when it was admitted, and appellant makes no argument on appeal
that the PBT result was admitted in error. In fact, appellant argued at trial and argues on
appeal that the evidence includes a PBT result that exonerates him. But the jury necessarily
rejected that argument in arriving at the verdicts it did.
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measurement of alcohol concentration received in evidence (the admission of which is not
challenged on appeal) is sufficient direct evidence to support the jury’s verdict.
As above, even if we were to regard this opinion evidence and PBT result as
circumstantial evidence, we can see no reasonable inference from what the state proved at
trial that is inconsistent with the conclusion that appellant was under the influence of
alcohol.
Reviewing the record in the light most favorable to the conviction, and assuming
the jury believed the state’s witnesses and disbelieved evidence to the contrary, the
following was proved at trial. Appellant drifted over the centerline several times while
driving and was confused about what time it was when he was stopped. During the stop,
the officer smelled alcohol coming from the car and noticed that appellant’s eyes were red,
bloodshot, and watery. Three different field sobriety tests showed signs of alcohol
impairment. Appellant’s horizontal gaze nystagmus test showed a lack of smooth pursuit
in both eyes, and nystagmus before 45 degrees. Appellant took the incorrect number of
steps, turned incorrectly, and failed to take even one heel-to-toe step during the walk-and-
turn test. When he did the one-leg stand test, he quickly failed three times, stumbling in
one attempt. The PBT measured appellant’s alcohol concentration at above 0.08.
These circumstances are consistent only with the jury’s conclusion that appellant
was under the influence of alcohol. The PBT confirms that appellant had consumed alcohol
to the point of having an alcohol concentration over 0.08. The field sobriety tests show the
influence of that alcohol on appellant’s ability to control his own body. And his drifting
over the centerline demonstrates that appellant’s lack of control affected his driving. The
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circumstances are consistent only with appellant having been under the influence of
alcohol.
In his testimony, appellant hypothesized that the officer lied to him about the results
of the PBT. Appellant also claimed that he completed everything he was asked to do in the
sobriety tests. But this testimony was obviously rejected by the jury. It cannot properly be
considered in a circumstantial-evidence analysis. Porte, 832 N.W.2d at 309.
Appellant argues that his circumstances are like those in City of Eagan v.
Elmourabit, 373 N.W.2d 290 (Minn. 1985), where the supreme court held that there was
insufficient evidence to uphold a conviction for driving while impaired. Id. at 294. But the
circumstances here are not like those in Elmourabit. There, the defendant passed his field
sobriety tests, performing normally. Id. at 291. The defendant there never took a PBT, or a
chemical test of any kind. Id. The sequence of events in Elmourabit did not provide
prolonged access to or an opportunity for the defendant to consume alcohol. Id. 293. Most
crucially, there existed circumstances in Elmourabit that were reasonably consistent with
non-guilt. The defendant there had an undiagnosed medical condition. Not long after he
was taken to the police station, the defendant fell to the floor, moaning and requesting a
doctor. Id. at 291. While paramedics could not definitively say that the defendant was
having a heart attack, they could not definitively say he wasn’t experiencing some amount
of pain. Id. at 293. The circumstances were therefore consistent with a rational hypothesis
that medical conditions were causing the circumstances proved by the state. There is no

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such evidence here, and this case is not a close one. The jury’s verdict is amply supported
by the record.
Affirmed.