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This opinion is nonprecedential except as provided by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
A24-0020

State of Minnesota,
Respondent,

vs.

Joshua Shaine Defoe,
Appellant.

Filed January 13, 2025
Affirmed
Halbrooks, Judge*

Itasca County District Court
File No. 31-CR-22-1672

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Jacob Fauchald, Itasca County Attorney, Todd S. Webb, Chief Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal- Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Harris, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
HALBROOKS, Judge
In this direct appeal from the judgment of conviction of felony driving while
impaired (DWI)–test refusal, appellant argues that (1) the evidence is insufficient to prove
beyond a reasonable doubt that he refused to submit to a chemical test and (2) the district
court erred in denying his motion to suppress evidence following a Franks hearing.1
Because we conclude that the evidence is sufficient to sustain appellant’s conviction and
the district court did not err in denying his motion to suppress, we affirm.
FACTS
On July 4, 2022, Officer Z. with the Nashwauk Police Department was on routine
patrol when he saw a white Jeep with no license plates fail to come to a complete stop at a
stop sign. Earlier that day, Officer Z. had received information via his squad-car computer
that a white Jeep without license plates had driven off from a gas station without paying
for its gas. Officer Z. activated his emergency lights to pull the Jeep over, but the Jeep
accelerated. Officer Z. followed the Jeep as it ran through multiple stop signs in Nashwauk,
at times reaching speeds approaching 100 miles per hour. The Jeep eventually crossed the

1 In Franks v. Delaware, the United States Supreme Court held that a defendant may attack
a facially valid warrant affidavit on the basis that the factual allegations therein contain a
“deliberate falsehood or . . . reckless disregard for the truth” that affects the probable-cause
determination. 438 U.S. 154, 171 -72 (1978). If a defendant makes a “substantial
preliminary showing” of misrepresentations or omissions of material facts made knowingly
or with reckless disregard for the truth, they are entitled to an evidentiary hearing at which
they must establish their allegations by a preponderance of the evidence. Id. at 155-56; see
also State v. Andersen, 784 N.W.2d 320, 326 (Minn. 2010) (considering misrepresentations
and omissions under Franks framework).
3
centerline of a two-lane highway and drove into the oncoming-traffic lane before turning
left onto a snowmobile trail and stopping at the top of a hill.
Officer Z. saw a man exit from the driver’s door of the Jeep and run toward the
nearby woods. Additional law-enforcement officers arrived on the scene within minutes
of Officer Z.’s arrival. One of those officers entered the woods to look for the driver while
Officer Z. made contact with a passenger who had exited the Jeep . The passenger told
Officer Z. that the driver was wearing a white shirt and blue jeans. The officer who entered
the woods located a man wearing a white shirt and blue jeans, who was later identified as
appellant, Joshua Shaine Defoe, placed him under arrest, and escorted him back to the
location of the Jeep. The Officer Z. subsequently noted, when speaking with Defoe, that
his eyes were glassy and bloodshot and that his demeanor quickly vacillated between calm
and agitated. Officer Z. did not note these observations in his incident report or his
probable-cause-to-detain form.
A deputy with the Itasca County Sheriff’s Office transported Defoe to jail and
Officer Z. met them there. Once at the jail, Officer Z. received text messages from two
other officers who were investigating the Jeep at the scene. The text messages contained
pictures of the interior of the Jeep, which showed multiple hypodermic needles located in
the glove compartment and one between the front passenger seat and the center console.
The officers told Officer Z. that the Jeep contained a loaded hypodermic needle but did not
specify the location of that needle within the car nor state whether it was depicted in any
of the photographs. One of the officers later testified at trial that the loaded hypodermic
4
needle was found in the backseat of the Jeep inside a backpack that was next to a
prescription bottle that had Defoe’s name on it.
Officer Z. drafted a search-warrant application to obtain a warrant for a blood or
urine test of Defoe. Officer Z. had only been a police officer for about two months at the
time and had no prior law-enforcement experience. As a result, he used the Itasca County
deputy’s e-charging account to submit the warrant application and sought the advice of
other officers for approximately three hours before completing his affidavit in support of
the warrant application. The relevant portions of his affidavit consist of the following:
[O]n, 7/4/2022 I tried to stop the white [J]eep [C]ompass that
ran through the stop sign of intersection Hwy 169 and State
Hwy 65 north . . . . The [d]river of the vehicle was traveling at
high rates of speed, swerving onto incoming traffic. [T]he
vehicle then stopped on a snowmobile trail near [T]aconite and
[C]ounty [R]oad 7. When I exited my squad I saw the male
exit the driver door and head southwest through the
woods . . . . The male [i]dentif[ied] as Joshua Shaine
Defoe . . . . When was being walked out I noticed that his eyes
were blood shot watery eyes, also through my controlled
substance training his [demeanor] was changing from calm to
frustrated . . . . I was advised by [other officers] that there was
a loaded hypodermic needle, [d]uring my training and
knowledge from other officers that these types of needles are
often used with th[is] type of drug use.

A district court issued a search warrant for a blood or urine test of Defoe, but Defoe
did not take a test. Respondent State of Minnesota charged Defoe with theft, careless
driving, fleeing a peace officer on foot, driving after cancellation, fleeing a peace officer
in a motor vehicle, fifth-degree controlled-substance crime, and first-degree felony DWI—
test refusal. Defoe moved to suppress any evidence obtained as a result of the search
5
warrant and requested a Franks hearing, arguing that the warrant application contained
material misrepresentations or omissions that affected the probable-cause determination.
The district court denied Defoe’s motion to suppress, opining that Franks was not
the proper framework under which to analyze Defoe’s motion because the warrant did not
result in a test, and therefore produced no evidence. The district court alternatively
concluded that , even under Franks, it would deny Defoe’s motion because any
misrepresentations or omissions were the result of Officer Z.’s negligence as a new officer
and were not made intentionally or with reckless disregard for the truth. The case
proceeded to trial and a jury found Defoe guilty of first-degree test refusal, among other
charges. Defoe was sentenced to 62 months in prison for the test refusal in addition to
shorter concurrent sentences for his other convictions.
This appeal follows.
DECISION
Defoe challenges his conviction of first-degree DWI—test refusal on the grounds
that the evidence is insufficient to sustain his conviction and that the district court erred in
denying his motion to suppress statements he made when officers were executing the test
warrant.
I. The evidence is sufficient to sustain Defoe’s conviction of first-degree test
refusal.

In a criminal prosecution, due process requires that the state prove every fact
material to the crime charged beyond a reasonable doubt. State v. Hage, 595 N.W.2d 200,
204 (Minn. 1999). Pursuant to Minnesota Statutes section 169A.20, subd. 2(2) (2020),
6
“[i]t is a crime for any person to refuse to submit to a chemical test . . . of the person’s
blood or urine as required by a search warrant.” To convict a defendant of test refusal,
“[a]ctual unwillingness to submit to testing must be proved,” either by direct or
circumstantial evidence. State v. Ferrier, 792 N.W.2d 98, 101-02 (Minn. App. 2010), rev.
denied (Minn. Mar. 15, 2011). “[R]efusal to submit to chemical testing includes 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 102.2
In determining whether the evidence is sufficient to support a conviction, we
“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 of the offense of which he was convicted.”
State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). We view the
evidence in the light most favorable to the verdict and assume that the jury believed the

2 The state argues that the “actual unwillingness” standard from Ferrier is no longer
controlling in light of our supreme court’s decision in State v. Schwartz. 957 N.W.2d 414
(Minn. 2021). In Schwartz, the supreme court affirmed our holding that a DWI offense
under Minnesota Statutes section 169A.20, subd. 1(7) (2020) (driving or operating a
vehicle while under the influence of a controlled substance listed in Schedule I or II), “is a
strict-liability offense that does not require the State to prove knowledge as an element of
the crime.” Id. at 417; see also State v. Schwartz, 943 N.W.2d 411, 413 (Minn. App. 2020).
The state contends that test refusal under Minnesota Statutes section 169A.20, subd. 2(2)
is also a strict-liability offense because it appears in another subdivision of the same statute
as the DWI at issue in Schwartz and similarly does not include an express knowledge
requirement. We disagree. Schwartz construed a DWI offense under Minnesota Statutes
section 169A.20, subd. 1(7), while Ferrier construed a test refusal under Minnesota
Statutes section 169A.20, subd. 2(2). Because it did not address test refusal, Schwartz has
no effect on Ferrier’s precedential value.
7
state’s witnesses and disbelieved contrary evidence. State v. Moore, 846 N.W.2d 83, 88
(Minn. 2014).
Our standard of review for sufficiency of the evidence differs depending on whether
a conviction relies on direct or circumstantial evidence. State v. Hokanson, 821 N.W.2d
340, 353 (Minn. 2012). “[D]irect 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). Circumstantial
evidence is “evidence from which the fact [-]finder can infer whether the facts in dispute
existed or did not exist.” Id. (quotation omitted). “[C]ircumstantial evidence always
requires an inferential step to prove a fact that is not required with direct evidence.” Id.
When the officers entered Defoe’s cell with the warrant for a blood or urine test, the
following exchange occurred:
OTHER OFFICER #1: See if he would like to do blood or
urine.
OTHER OFFICER #2: Let’s go boys. Hey, we got to ask you
something. Are you up?
OTHER OFFICER #1: Josh, are you up?
OTHER OFFICER #2: Josh—
DEFOE: Yeah.
OTHER OFFICER #1: Okay.
OFFICER Z.: Hey, I’m Officer Z. with Nashwauk Police
Department. I have a search warrant for you and your car. Um,
I believe that you were under the influence while you were
driving. So, I have a blood or urine test that we can do. And
if you refuse it’s a crime and it’s another offense to the DWI—
DUI. So, do you wish to take something? Blood or urine?
[Brief silence.]
OTHER OFFICER #2: Josh?
DEFOE: What?
OTHER OFFICER #2: He’s asking you a question—
DEFOE: —No.
8
OTHER OFFICER #1: Okay.
OFFICER Z.: No?
OTHER OFFICER #2: No.
OTHER OFFICER #1: He said no.
OFFICER Z.: Okay.
OTHER OFFICER #1: Thanks, boys.

Defoe argues that his groggy answer of “No” cannot be attributed to being in
response to Officer Z.’s question because he was asleep and was asked multiple questions.
He contends that his “No” was instead in response to the other officer and for that reason
it cannot be direct evidence of his test refusal. He argues that the circumstantial -evidence
standard applies because the interaction between Defoe and the officers requires inferences
that his “No” was in response to Officer Z.’s question about taking a blood or urine test
and that he was awake enough to fully respond. We disagree.
The exchange involve d two questions—one asking Defoe whether he was awake
and the other asking whether he would take a test—and two answers —“Yeah ” that Defoe
was awake and “No” that he did not wish to take a test. No inference is required for this
exchange to show that when asked whether he wished to take a blood or urine test, Defoe
responded, “No.” On this record, which includes an audio recording of the exchange, we
conclude that the direct-evidence standard applies.
When a conviction is supported by direct evidence, “we limit our review to a
painstaking analysis of the record to determine whether the evidence, when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation
omitted). Here, the evidence is sufficient to support the jury’s guilty verdict on the test-
9
refusal charge. The jury heard both the recording of the interaction between the officers
and Defoe in the jail cell and the trial testimony from Officer Z. and the Itasca County
deputy, who were both present during the interaction.
When viewed in a light most favorable to the verdict, Defoe saying “No” after
Officer Z. asked him if he wanted to take a blood or urine test is sufficient to sustain his
test-refusal conviction. Defoe did not present any evidence supporting his argument that
his “No” was not in response to Officer Z.’s question or that he was not awake enough to
understand it.3 And even if he had, we must assume that the jury disbelieved that argument.
See Moore, 846 N.W.2d at 88. Because the view of the evidence most favorable to the
verdict is that Defoe’s “No” was in response to Officer Z.’s question concerning his
willingness to sustain a test, the evidence is sufficient to support Defoe’s conviction under
the direct-evidence standard.
But even assuming, arguendo, that the circumstantial-evidence standard applies, the
evidence is still sufficient to sustain Defoe’s conviction. When a conviction is based on
circumstantial evidence, we apply a heightened two-step standard of review.
State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). Under this standard, we first
identify the circumstances proved. Id. In doing so, “we defer to the jury’s acceptance of
the proof of [the] circumstances and rejection of evidence in the record that conflicted with

3 We note that Officer Z.’s question was the second in a series of questions Defoe was
asked; Defoe was asked if he was awake prior to being asked Officer Z.’s question and
answered in the affirmative.
10
the circumstances proved by the State.” Id. at 598-99 (quotation omitted). This means that
“we consider only those circumstances that are consistent with the verdict.” Id. at 599.
“The second step is to determine whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis except that of guilt.” Id. (quotation
omitted). In this step, we conduct an independent examination of the reasonableness of all
inferences that could be drawn from the circumstances proved, including ones consistent
with a hypothesis other than guilt. Andersen, 784 N.W.2d at 329 (quotation omitted). We
do not give deference to the fact-finder’s choice between reasonable inferences. Silvernail,
831 N.W.2d at 599. “[I]f any one or more circumstances found proved are inconsistent
with guilt, or consistent with innocence, then a reasonable doubt as to guilt arises.”
State v. Al-Naseer, 788 N.W.2d 469, 474 (Minn. 2010) (quotation omitted). However, a
rational hypothesis other than guilt cannot “rely on mere conjecture” or speculation; there
must be evidence in the record to support it. State v. Tscheu, 758 N.W.2d 849, 858 (Minn.
2008); see also Al-Naseer, 788 N.W.2d at 480.
The circumstances relevant to test refusal proved in this case consist of the
following: (1) the officers obtained a facially valid warrant for a blood or urine test for
Defoe; (2) three officers, including Officer Z., went into Defoe’s cell after midnight;
(3) one of the officers asked Defoe if he was awake, to which he replied, “Yeah ”;
(4) Officer Z. then asked Defoe if he wished to take a blood or urine test and informed him
that refusing to do so would be a crime; (5) when Defoe did not immediately respond,
another officer called his name and said, “ He’s asking you a question”; (6) Defoe then
responded, “No”; and (7) Defoe did not take a urine or blood test.
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Defoe concedes that these circumstances are consistent with a rational hypothesis
of guilt. But he contends that they are insufficient to sustain his conviction because they
are also consistent with rational hypotheses other than guilt, i.e., that he had fallen back
asleep after Officer Z. ’s question or that his “No” was in response to the other officer.
Defoe asserted these theories through cross-examination of the officers and his counsel’s
closing argument. But the fact that both are theoretically possible is insufficient to classify
them as rational hypotheses other than guilt. See Tscheu, 758 N.W.2d at 860-61. We still
view any circumstantial evidence in a light most favorable to the verdict and assume that
the jury disbelieved anything set forth contradicting the verdict. Moore, 846 N.W.2d at 88.
To the extent that Defoe is arguing that this is a rational hypothesis other than guilt, we
must assume the jury disbelieved that contention. Therefore, even if the evidence here is
circumstantial, it would still be sufficient to support Defoe’s conviction.
II. The district court did not err in denying Defoe’s motion to suppress under the
Franks framework.

Both the United States and Minnesota Constitutions protect against unreasonable
searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
“If a search warrant is not supported by probable cause, then it is unreasonable.”
State v. Wiggins, 4 N.W.3d 138, 145 (Minn. 2024). The existence of probable cause is
determined by a review of the warrant application and supporting affidavits. Id. “Probable
cause exists when there is a fair probability that . . . evidence of a crime will be found in a
particular place.” Onyelobi v. State , 932 N.W.2d 272, 281 (Minn. 2019) (quotation
omitted).
12
Appellate courts give great deference to the issuing judge’s determination of
probable cause at the time of the warrant’s issuance. State v. Rochefort, 631 N.W.2d 802,
804 (Minn. 2001). To determine whether probable cause exists for a warrant, appellate
courts assess whether, under the totality of the circumstances, the issuing judge had a
substantial basis for determining that there was a fair probability that contraband or
evidence of a crime would be found in a particular place. State v. Zanter, 535 N.W.2d 624,
633 (Minn. 1995). A search-warrant affidavit is presumed valid. State v. McGrath, 706
N.W.2d 532, 540 (Minn. App. 2005), rev. denied (Minn. Feb. 22, 2006). But the
presumption is overcome if the affidavit is a “product of deliberate falsehood or reckless
disregard for the truth.” Id. “A search warrant is void, and the fruits of the search must be
excluded, if the application includes intentional or reckless misrepresentations of fact
material to the finding of probable cause.” State v. Moore, 438 N.W.2d 101, 105 (Minn.
1989) (citing Franks, 438 U.S. at 171-72).
To invalidate a warrant under the Franks framework, a defendant must “show that
(1) the affiant deliberately made a statement that was false or in reckless disregard of the
truth, and (2) the statement was material to the probable cause determination.” Andersen,
784 N.W.2d at 327 (quotation omitted). “A misrepresentation or omission is material if,
when the misrepresentation is set aside or the omission supplied, probable cause to issue
the search warrant no longer exists.” Id. Under this framework, “the court must determine
that the police deliberately or recklessly misrepresented facts, because innocent or
negligent misrepresentations will not invalidate a warrant.” Moore, 438 N.W.2d at 105.
13
We review a district court’s determinations of whether misstatements or omissions
were intentional or in reckless disregard of the truth under a clearly erroneous standard and
its determinations on materiality de novo. Andersen, 784 N.W.2d at 327. Under the clearly
erroneous standard, we will uphold findings of fact so long as we find “reasonable
evidence” in the record to support them and are not “left with the definite and firm
conviction that a mistake has been made.” State v. Evans, 756 N.W.2d 854, 870 (Minn.
2008) (quotations omitted).
We first address the district court’s decision on the applicability of Franks. After
holding a Franks hearing, the district court determined that Franks was not the correct
framework under which to analyze Defoe’s motion because no test occurred. As a result,
no evidence resulted from use of the warrant. Both parties contend on appeal that Franks
does apply. We agree. Although it is true that no test was obtained as a result of the
warrant, the statutory provision under which Defoe was charged specifically requires a
search warrant for the test. Therefore, Defoe’s refusal was a consequence of the warrant
and evidence of the crime of which he was found guilty. See Minn. Stat. § 169A.20, subd.
2(2). Because Defoe’s statements constituting his refusal resulted from the warrant, Franks
applies. We therefore review the Franks analysis the district court conducted as an
alternative analysis in its order.
Defoe’s argument at the Franks hearing was twofold. First, he argued that Officer
Z.’s initial observations of hi s bloodshot and watery eyes and vacillating demeanor were
intentional or reckless misrepresentations because neither Officer Z. nor any other
responding officer included those observations in a report. Second, Defoe argued that
14
Officer Z.’s statement about the loaded hypodermic needle found in the Jeep was an
intentional or reckless omission because he did not include the specific location of the
needle inside the car. At the Franks hearing, Officer Z. testified that he noticed Defoe’s
vacillating demeanor and watery, bloodshot eyes when interacting with him. While the
Itasca County deputy did not testify that he made similar observations, he also indicated
that he was not paying attention to Defoe’s appearance or demeanor because he was not
the charging officer and was merely transporting Defoe to the jail. Officer Z. testified that
he did not know why he did not include information about the specific location of the
loaded hypodermic needle inside the car in his warrant affidavit.
In its Franks analysis, the district court stated that Defoe “failed to prove by a
preponderance of the evidence that Officer Z. intentionally or recklessly included
misrepresentations—or omissions —of fact in his supporting affidavit in the search warrant
application.” The district court found that Officer Z.’s omission of details concerning the
location of the loaded hypodermic needle in the warrant affidavit and the inclusion of his
observations of Defoe’s eyes and demeanor in the warrant affidavit, but not in his report or
probable-cause form, were the result of negligence. The district court did not address
materiality. Defoe argues that the district court’s finding of negligence is clearly erroneous
and that the omissions and misrepresentations were material. We address each aspect of
Defoe’s Franks motion in turn.
A. Omission—Loaded Hypodermic Needle
Defoe asserts that Officer Z. intentionally or recklessly omitted details of the precise
location of the loaded hypodermic needle in the Jeep. Defoe points to inconsistencies
15
between Officer Z .’s testimony that he received the information about the loaded
hypodermic needle via photographs texted to him by on-scene officers and the Itasca
County deputy’s testimony that he was the one who received the information about the
contents of the Jeep via a phone call from on-scene officers. Defoe also argues that Officer
Z. testified that he had seen a screenshot of the security video of Defoe leaving the gas
station without paying on the day of the incident, even though law enforcement did not
receive the video until the following day.4
Defoe contends that both of these inconsistencies show the recklessness with which
Officer Z. conducted the investigation with regard to the needle and as a whole. But Defoe
points to no evidence showing that both officers could not have separately received
information about the Jeep’s contents. And he does not explain how any
misrepresentations or inconsistent testimony Officer Z. may have provided about his
observations regarding Defoe’s suspected involvement in the gas station drive-off are
relevant to the omission of information about the specific location of the loaded
hypodermic needle (or the observations of Defoe’s physical indicia of impairment).
Defoe also contends that the district court’s characterization of Officer Z.’s
omission as negligent is clearly erroneous because Officer Z. waited approximately three
hours to complete the warrant affidavit so that he could seek the advice of more
experienced officers. This too is unconvincing. Officer Z. testified that it was the first
warrant affidavit he ever completed and that he did not know why he did not include the

4 Officer Z. testified at trial that he was mistaken in having thought he saw a screenshot
that day.
16
specific location about the needle. Under these facts, the district court’s determination that
the omission was merely negligent is not clearly erroneous.
B. Misrepresentation— Observations of Defoe
Second, Defoe claims that Officer Z. intentionally or recklessly misrepresented his
observations of Defoe’s vacillating demeanor and bloodshot and watery eyes because
Officer Z. did not include them in either the probable-cause statement or the report he made
of the incident. Additionally, no other officer included these observations in their reports.
But Officer Z. testified at the Franks hearing that he made these observations when
speaking with Defoe on the scene. The district court clearly found this testimony credible,
and we defer to the district court’s credibility determinations. State v. Barshaw, 879
N.W.2d 356, 366 (Minn. 2016). Moreover, Defoe provided no actual evidence that Officer
Z.’s observations of Defoe were misrepresentations. And with respect to recklessness or
intentionality, Defoe relied on the same arguments that he asserted concerning the omission
of the loaded hypodermic needle. As previously discussed, the district court’s
determination that Officer Z.’s omissions were not reckless or intentional is not clearly
erroneous.
Because the district court’s findings with respect to either aspect of Defoe’s Franks
motion are not clearly erroneous, we need not reach the issue of materiality. See Moore,
438 N.W.2d at 105 (courts need not decide materiality if there was no intentional or
reckless misrepresentation or omission). We conclude that the district court did not err in
denying Defoe’s motion to suppress under a Franks framework.
Affirmed.