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This opinion is nonprecedential except as provided by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
A21-1074

State of Minnesota,
Respondent,

vs.

Lance Jeffery Johnson,
Appellant.

Filed June 27, 2022
Affirmed
Halbrooks, Judge*

St. Louis County District Court
File No. 69VI-CR-20-308

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

Kim Maki, St. Louis County At torney, Christopher Florey, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and
Halbrooks, Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
In this direct appeal from a final ju dgment of convictio n for driving while
impaired—test refusal, appellant argues that his conviction must be reversed because the
district court’s jury instructions did not specify which chemical test the state had to prove
he refused when he refused bot h a breath test and a urine test. Appellant also makes
additional arguments in a pro se supplemental brief. Because the jury instructions, when
read in context, fairly explain the law a nd because appellant’s additional arguments are
unavailing, we affirm.
FACTS
After a witness reported concerns about appellant Lance Jeffery Johnson’s driving,
an officer approached Johnson’s vehicle in a parking lot. The officer’s body camera was
not working. The officer observed Johnson dr ink from a bottle of what appeared to be
liquor, but Johnson placed the bottle under a backpack when the officer knocked on his
window. The officer saw that Johnson’s eyes were bloodshot and watery and that he was
unsteady on his feet. Around this time, a second officer, who was wearing a working body
camera, arrived at the scene.
Johnson refused field sobriety tests and wa s subsequently arrested for driving while
impaired (DWI). At the police station, the first officer read Johnson the breath-test
advisory and asked him to provide a sample of his breath. Johnson declined. The first
officer, without obtaining a warrant, also asked Johnson to submit to a urine test. He again
declined.
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Johnson was charged with felony DWI––ref usal to submit to a breath test in
violation of Minn. Stat. § 169A. 20, subd. 2(1) (2018). He was later additionally charged
with felony DWI in violation of Minn. Stat. § 169A.24, subd. 1(2) (2018). A jury found
Johnson guilty of both charges, but the district court only convicted him of felony DWI––
refusal to submit to breath test. The district court sentenced Johns on to 42 months of
imprisonment, the presumptive guidelines sentence. Minn. Sent. Guidelines 4.A (Supp.
2019). This appeal follows.
DECISION
Johnson argues that his conviction for test refusal must be reversed because the
district court’s jury instructions did not specify which chemical test the state had to prove
Johnson refused when he refused both a breath test and a urine test. Johnson did not object
to the jury instructions at trial. Absent a trial objection, we review the district court’s jury
instructions for plain error. State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). Under a
plain-error analysis, we consider whether the jury instructions contained “an (1) error (2)
that was plain and (3) that affected the defendant’s substantial rights.” Id. “If these three
prongs . . . are met, we then d ecide whether we must address the error to ensure fairness
and the integrity of the judicial proceedings.” Id. (quotation omitted).
When reviewing jury instructions for plain error, appellate courts review them “in
their entirety to determine whet her the instructions fairly a nd adequately explain the law
of the case.” Id. (quotation omitted). “[J]ury instructio ns must define the crime charged
and explain the elements of that crime to th e jury,” but the district court has “broad
discretion and considerable latitude in choosi ng the language of jury instructions.” Id.
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(quotations omitted). Appellate courts will not reverse a district c ourt’s decision on jury
instructions absent an abuse of discretion. Id. District courts abuse their discretion if the
instructions “confuse, mislead, or materially misstate the law,” State v. Taylor, 869 N.W.2d
1, 14-15 (Minn. 2015) (quotation omitted), or if the instructions om it an element of the
charged offense, State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019).
Once an officer has (1) probable cause to believe that the person was driving while
impaired, (2) placed the person under lawful arrest for DWI, (3) requested that the person
take a breath test, and (4) read the person the breath-test advisory, Minn. Stat. § 169A.51,
subds. 1(b)(1), 2 (2018), “[i]t is a crime for any person to refu se to submit to a chemical
test . . . of the person’s breath.” Minn. Stat. § 169A.20, subd. 2(1).
However, a person cannot be prosecut ed for refusing to submit to an
unconstitutional warrantless blood or urine test. State v. Thompson, 886 N.W.2d 224, 234
(Minn. 2016).
Here, the district court instructed:
First, a peace officer had probable cause to believe that
the defendant drove, operated, or was in physical control of a
motor vehicle while under the influence of alcohol. . . .
Second, the peace officer pl aced the defendant under
lawful arrest for driving while impaired. . . .
Third, the defendant was given the breath-test advisory
by the peace officer.
Fourth, the defendant was requested by the peace officer
to submit to a chemical test of the defendant’s breath.
Fifth, the defendant refused to submit to the test.

Johnson contends that because the fifth el ement of the jury instructions failed to
specify which test the state had to prove Johnson refused and instead merely said “the test,”
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the jury was not properly instructed that Johnson could only be convicted if he refused the
breath test, not the urine test. Johnson asserts that the instru ctions should have specified
“breath test” or the district court should have given a limiting instruction.
The district court used language nearly identical to the lan guage in the jury-
instruction guides, including identical language as to the fifth element. See 6 Minnesota
Practice, CRIMJIG 29.22 (2021) (“Fifth, the defendant refused to submit to the test.”).
The jury instructions given by the district court included all elements of the offense
and fairly explained the law. Milton, 821 N.W.2d at 805. When read “in their entirety,” it
is clear that the fifth element was referring to a breath test. Id. The contested sentence––
“Fifth, the defendant refused to submit to the test”––immediately followed two sentences
that listed the “[t]hird” and “[f]ourth” elemen ts of the offense and included “breath test”
and “test of the defendant’s breath.” The first se ntence of the instructions also stated that
“whoever refuses to submit to a chemical test of the person’ s breath . . . is guilty of a
crime.” There was no reference to a urine test in the jury instructions. Thus, when the fifth
element is read in context, th e jury instructions did not “c onfuse, mislead, or materially
misstate the law.” Taylor, 869 N.W.2d at 14-15 (quotation omitted). Consequently, under
the plain-error analysis, the district court did not err in its jury instructions. We therefore
do not need to discuss the other prongs of the plain-error analysis. See Milton, 821 N.W.2d
at 805.
In his pro se supplemental brief, Johns on makes several additional arguments:
because the first officer was not wearing a body camera, anything prior to the arrival of the
second officer can be disputed ; the officer’s testimony was misleading and contradicted
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the probable-cause reports; the officer’s lights were not on; Johnson was not given a field
sobriety test; testimony proves this was not a traffic stop; and the first officer should have
waited for the second officer with the functioning body camera to arrive. As presented, we
construe these arguments as a sufficiency-of-the-evidence challenge.
To determine whether there was sufficien t evidence, “appellate courts carefully
examine the record 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.” State v. Griffin , 887 N.W.2d 257, 263 (Minn. 2016) (quotation
omitted). Appellate courts view the evidence “in th e light most favorable to the verdict,
and it must be assumed that the fact-finder di sbelieved any evidence that conflicted with
the verdict.” Id. Appellate courts will not overturn the verdict “if the fact-finder, upon
application of the presumption of innocence and the State’s burden of proving an offense
beyond a reasonable doubt, co uld reasonably have found the defenda nt guilty of the
charged offense.” Id.
After a thorough examination of the record, we conclude that there was sufficient
evidence of each element of DWI––test refusal and thus for the jury to find Johnson guilty
of refusal to submit to a breath test. The first officer testified at trial that she believed that
Johnson was driving under the influence of alcohol because he ha d “bloodshot watery
eyes,” “impaired balance,” there was the smell of alcohol, and she had received information
from dispatch about his driving conduct, whic h involved swerving and driving at a slow
speed. The officer also testif ied that she observed Johnson drinking from a bottle that
looked like it contained alcohol. Thus, there was sufficient evidence of probable cause of
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DWI, a necessary element. The officer la wfully arrested Johnson for DWI, another
necessary element. After the officer and Johnson arrived at the police station, the officer
read Johnson the breath-test advisory and requested that he take the breath test, both
necessary elements. The offi cer also testified that Johnson refused multiple requests to
take a breath test, the final necessary elem ent. Johnson’s arguments in his pro se
supplemental brief therefore lack merit.
Affirmed.