                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0661

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                  Arnold Lee Scott,
                                     Appellant.

                                 Filed April 25, 2016
                                      Affirmed
                                     Ross, Judge

                             Anoka County District Court
                              File No. 02-CR-14-1293

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Jeffrey A. Carson, David K. Ross, Carson, Clelland & Schreder, Brooklyn Center,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Ross, Presiding Judge; Reyes, Judge; and

Randall, Judge.




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                         UNPUBLISHED OPINION

ROSS, Judge

       A jury found Arnold Scott guilty of chemical-test refusal after police arrested him

on suspicion of drunk driving. Scott appeals his conviction, arguing that the state produced

insufficient evidence that he refused to take a breath test, the implied-consent statute is

unconstitutional, and the district court committed reversible error by failing to obtain his

consent before instructing the jury to draw no adverse inference from his exercising his

constitutional right not to testify. We affirm the conviction because the state produced

sufficient evidence that Scott refused the breath test, Scott points to no authority supporting

his claim that current decisions of the Minnesota Supreme Court on the constitutionality of

the implied-consent statute are not binding, and Scott’s substantial rights were not violated

by the district court’s failure to obtain his consent to the no-adverse-inference instruction.

                                           FACTS

       In February 2014, Spring Lake Park police officer Mark Bonesteel clocked a car

driven by Arnold Scott traveling 14 miles per hour over the speed limit. Officer Bonesteel

followed the car and saw two more infractions. He initiated a stop.

       It was cold, so Officer Bonesteel ushered Scott into his squad car. There he smelled

an alcoholic beverage. Scott admitted to drinking beer and Officer Bonesteel noticed that

his speech was slightly slurred and his eyes were bloodshot and watery. The officer asked

Scott to perform field sobriety tests. Scott declined to take the walk-and-turn and the one-

leg-stand tests, saying that he had a titanium plate in his knee. Officer Bonesteel

administered the horizontal gaze nystagmus test, which indicated that Scott was


                                              2
intoxicated. He also administered a preliminary breath test, which revealed an alcohol

concentration of 0.154.

       Officer Bonesteel arrested Scott for driving while impaired and brought him to the

police station. He read Scott the implied-consent advisory. Scott said that he would take a

breath test. Officer Bonesteel usually administers that test by handing the tube to the test

subject and telling him to blow, and to keep blowing, until a tone sounds or the officer tells

him to stop. According to Officer Bonesteel, when Scott blew into the machine he

repeatedly blew and stopped and removed the tube from his mouth. He told Scott several

times that the clock was running on the three minutes allowed for the test process, and

finally the time expired. The machine registered a deficient sample. Officer Bonesteel

remarked on the test report, “[S]tarted and stopped. [E]xhaled heavily after sample.” He

says that Scott never claimed that he was physically unable to blow sufficiently into the

machine.

       Officer Bonesteel asked Scott again to take the test, again directing him to blow into

the tube continuously. He says that Scott acted the same way as before: blowing and soon

stopping, and exhaling heavily only after he had removed the tube from his mouth. The

second test also registered a deficient sample. The officer again noted what he saw:

“[S]tarted and stopped repeatedly. [P]aused several times and would not blow. [M]ade no

attempts to blow hard.”

       The state charged Scott with second-degree chemical-test refusal and second-degree

driving while impaired, and the case went to trial. Scott chose not to testify, and his attorney

elicited a waiver of Scott’s right to testify. The prosecutor and defense attorney examined


                                               3
the jury instructions and made a few changes, but no one discussed the no-adverse-

inference instruction regarding Scott’s decision not to testify. The jury was given a no-

adverse-inference instruction anyway. The instruction explained that the defendant has a

constitutional right not to testify and that the jury may not draw any inference from the fact

that the defendant did not testify. Scott neither requested the instruction nor objected to it,

but he also did not expressly consent to it.

       The jury found Scott guilty of refusing to submit to a chemical test but acquitted

him of driving while impaired. Scott appeals his test-refusal conviction.

                                      DECISION

       Scott argues that the state failed to introduce sufficient evidence to prove that he

refused to submit to the breath test. He also challenges the constitutionality of Minnesota’s

test-refusal law under substantive due process and the unconstitutional-conditions doctrine.

And he argues that the district court committed reversible error by giving the no-adverse-

inference instruction without his consent. The arguments are not convincing.

                                               I

       We first address Scott’s argument that the state failed to offer sufficient evidence

that he refused to take the breath test. Our standard of review for sufficiency-of-the-

evidence claims depends on whether the challenged element was proved by circumstantial

or direct evidence. Where the defendant did not expressly refuse, the state must prove

refusal by relying on inferences from the circumstances. State v. Ferrier, 792 N.W.2d 98,

102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Scott did not verbally refuse

the test, and the state offered only circumstantial evidence to prove his refusal. A


                                               4
conviction based on circumstantial evidence attracts our greater scrutiny on review. State

v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010).

       For sufficiency-of-the-evidence challenges involving circumstantial evidence, we

first identify the circumstances proved, deferring to the jury’s acceptance of the inculpatory

evidence and its rejection of conflicting evidence. State v. Silvernail, 831 N.W.2d 594,

598–99 (Minn. 2013). We construe conflicting evidence in the light most favorable to the

verdict, and we assume that the jury believed the state’s witnesses and disbelieved defense

witnesses. Id. at 599. Sufficient evidence exists if the circumstances proved are consistent

with guilt and inconsistent with any rational hypothesis other than guilt. Id.

       To convict a driver of test refusal, the state must prove some action showing that

the driver volitionally refused, not merely that he failed to produce an adequate sample.

Ferrier, 792 N.W.2d at 101. “[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.

       Taking the evidence in the light most favorable to the verdict, we observe that the

following circumstances were proved: Scott verbally agreed to take the breath test; he was

given two, three-minute opportunities to perform the breath test; he was instructed

accurately how to perform the test, including blowing steadily into the tube for an extended

exhale; during both three-minute periods, he repeatedly started and stopped blowing into

the tube and finally removed it from his mouth without exhaling into it; he was physically

capable of exhaling heavily and he had gathered a sufficient amount of air in his lungs to

do so, but he exhaled in that fashion only after he removed the tube from his mouth. These


                                              5
circumstances imply that Scott intentionally averted his breath to prevent an adequate test

sample to measure his intoxication, effectively refusing the test.

       Scott appears to argue for an alternative hypothesis. He suggests that he was trying

to provide an adequate breath sample but he was either physically unable to perform the

test or he did not understand how the test worked. Scott maintains that the officer gave him

no instructions before the test and that the officer never told him his actions could constitute

refusal. Although Officer Bonesteel did not testify to what exactly he told Scott before the

first test, he did testify that he generally tells test subjects to blow continuously into the

device until the tone sounds or he tells them to stop. And before the second test, Officer

Bonesteel testified that he directed Scott “[t]o blow into the machine continuously while

the tone was on and to keep going” until he told him to stop. Scott is correct that Officer

Bonesteel did not testify that he told Scott that his uncooperative actions could constitute

refusal. But the officer did testify that he read Scott the implied-consent advisory, which

explains, “If the test is unreasonably delayed . . . you will be considered to have refused

the test.” The jury saw the completed advisory form, which indicates that Scott responded

that he understood this. Although our Ferrier opinion states that the officer in that case

“specifically advised [Ferrier] before the third and final attempt that failure to produce a

urine sample would be considered refusal,” we did not suggest (and the statute does not

suggest) that the additional explanation is necessary for a conviction. Id.

       Scott emphasizes that Officer Bonesteel never asked whether he had any test-

inhibiting physical limitations. But as a matter of fact, the circumstances proved establish

that Scott was physically capable of blowing heavily into the machine. And as a matter of


                                               6
law, Ferrier suggests that the onus is on the test taker to communicate any claimed physical

inability. See id. (upholding refusal and observing that the driver “never indicated that she

was physically incapable of urinating or requested an alternative test”). Scott knew that he

could inform the officer if he was unable to perform the test, as he had demonstrated by

twice informing Officer Bonesteel that his knee problem prevented him from performing

balance-related field sobriety tests. The state produced sufficient evidence for the jury to

convict Scott of test refusal.

                                             II

       We turn to Scott’s constitutional challenge. He contends that the test-refusal law

violates substantive due process and the unconstitutional-conditions doctrine. Scott argues

that the otherwise dispositive state supreme court decision of State v. Bernard, 859 N.W.2d

762 (Minn. 2015), cert. granted, 136 S. Ct. 615 (Dec. 11, 2015) (No. 14-1470), is not

binding on us because the United States Supreme Court has granted certiorari to review

that case. To support his claim that we need not follow the state’s final decisions until a

final decision by the United States Supreme Court is made, Scott points to State v. Losh,

721 N.W.2d 886, 893 (Minn. 2006). Losh does not support Scott’s position.

       The Losh court considered a question that neither mirrors nor parallels our question.

The Losh court answered only whether a convicted criminal defendant can benefit from a

new constitutional rule of criminal procedure that the United States Supreme Court

established while the defendant’s conviction was still being considered on appeal. Id. The

answer to this question in Losh depended on the temporal relationship between the cases;

if the new caselaw rule was established while the later case was still “pending on direct


                                             7
review,” then the criminal defendant in the later case gets the benefit of the new rule. Id.

So when the Losh court declares that “a case is pending until such time as the availability

of direct appeal has been exhausted, the time for a petition of certiorari has elapsed or a

petition for certiorari with the United States Supreme Court has been filed and finally

denied,” id. (quotation omitted), it is saying nothing about when its own decisions become

binding on this court and the district court. That is, Losh is not inviting this court to

disregard otherwise precedential holdings that have been established in cases that are on

review in the United States Supreme Court. That Mr. Bernard’s conviction is still “pending

on direct review” for the purposes of his opportunity to benefit from any intervening

procedural change after he was convicted is not relevant to whether the state supreme

court’s Bernard decision has been stripped of its precedential significance in Minnesota.

       Because the supreme court in Losh did not declare that a Minnesota Supreme Court

decision loses its binding effect on this court and the district court, and Scott offers no other

authority to support that idea, we will follow supreme court precedent. See, e.g., State v.

M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010).

Bernard therefore continues to govern our determination.

       Scott’s constitutional challenge to the implied-consent law fails under Bernard.

Bernard holds that a breath test is a constitutional search incident to a lawful arrest and that

the state therefore does not violate a driver’s substantive due process rights by criminally

punishing him for refusing to submit to a breath test. 859 N.W.2d at 767. Scott’s challenge

based on the unconstitutional-conditions doctrine similarly fails, because punishing a

person for refusing a constitutional search is not punishment for exercising a constitutional


                                               8
right. State v. Bennett, 867 N.W.2d 539, 543 (Minn. App. 2015), review denied (Minn. Oct.

28, 2015). We affirm the district court’s decision that the state did not violate Scott’s

constitutional rights by punishing him criminally for his refusing to take the breath test.

                                              III

       We last address Scott’s argument that the district court committed reversible error

by giving a no-adverse-inference instruction without his consent. Because he did not object

to the jury instruction at trial, we review only for plain error. State v. Milton, 821 N.W.2d

789, 805 (Minn. 2012). We look to whether the instruction contained an error, the error

was plain, and the error affected Scott’s substantial rights. See id. Prejudice exists if there

is a reasonable likelihood that giving the instruction significantly affected the verdict. State

v. Darris, 648 N.W.2d 232, 240 (Minn. 2002). A defendant who fails to object to a no-

adverse-inference instruction “bears a heavy burden of showing that substantial rights have

been affected.” Id.

       Scott argues that giving a no-adverse-inference instruction without obtaining a

defendant’s express consent to the instruction on the record is always plain error, relying

on State v. Gomez, 721 N.W.2d 871, 880 (Minn. 2006). The state argues that this case is

more akin to State v. Clifton, in which the supreme court refused to grant a new trial after

independently reviewing the record and finding that the defendant and his attorney agreed

to the instruction. 701 N.W.2d 793, 798 (Minn. 2005). We need not decide the parties’

dispute over whether Gomez or Clifton should control, because even if the district court

plainly erred, the error did not prejudice Scott’s substantial rights.




                                               9
       Scott implies that appellate courts have found a no-adverse-inference instruction

harmless error only when strong forensic and testimonial evidence support the defendant’s

guilt, citing the facts of Gomez and Darris. We recognize that Gomez and Darris, which

were first-degree murder cases, involved substantially more evidence than the state

presented to prove Scott’s test refusal. But neither opinion implies that the quantity of

evidence produced in those cases was necessary to avoid reversal. The rule repeated and

emphasized in both Darris and Gomez is that the defendant has the “heavy burden of

showing that substantial rights have been affected.” Darris, 648 N.W.2d at 240; Gomez,

721 N.W.2d at 880.

       Scott has failed to carry this heavy burden. He provides no reason for us to suppose

that the jury instruction influenced the verdict.

       Affirmed.




                                              10
