                          This opinion will be unpublished and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
                                     A15-1922

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                         Xa Vang,
                                         Appellant.

                                 Filed October 24, 2016
                                        Affirmed
                                 Smith, Tracy M., Judge

                              Ramsey County District Court
                               File No. 62SU-CR-15-147

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

Patrick J. Kelly, Little Canada City Attorney, Martin H.R. Norder, Assistant City
Attorney, Kelly & Lemmons, P.A., St. Paul, 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 Smith, Tracy M., Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.

                         UNPUBLISHED OPINION

SMITH, TRACY M., Judge

       Appellant Xa Vang challenges his conviction for refusal to submit to a chemical

test for intoxication, arguing (1) the evidence is insufficient to prove that Vang refused to

submit to testing; (2) the district court erred in preventing Vang from arguing that his
refusal was reasonable; (3) the district court erred in admitting the implied consent peace

officer’s certificate, which contains hearsay; and (4) Minnesota’s criminal test-refusal

statute is unconstitutional. Because the evidence is sufficient to prove refusal, the district

court did not abuse its discretion in preventing argument on reasonable refusal, any error

in admitting the peace officer’s certificate was harmless, and the test-refusal statute is not

unconstitutional, we affirm.

                                          FACTS

         At approximately 3:15 a.m. on January 10, 2015, Ramsey County Sheriff’s

Department Deputy Mark Suchy was driving northbound on Rice Street in Little Canada,

Minnesota, when he saw a car in front of him going over the solid white line on the right

side of the road. The driver made a right turn without signaling. The driver then turned

into the parking lot of several closed businesses, again without signaling, and parked the

car. The deputy followed the car into the lot and saw the driver, Vang, exit the car, walk

up to the door of a closed business, and then walk back toward the car.

         The deputy exited his vehicle and asked Vang what he was doing. Vang said he

was there to get insurance from his uncle. The deputy observed that Vang had red and

watery eyes, smelled of alcohol, and was “unsteady on his feet” at times. The deputy

looked up Vang’s driver’s license number and found that Vang’s license had been

revoked. The deputy then activated his squad camera and administered field sobriety

tests.   After determining that Vang’s performance on the three field sobriety tests

indicated intoxication, the deputy began asking Vang repeatedly to take a preliminary

breath test to measure alcohol concentration.


                                              2
       Vang did not agree to take the preliminary breath test, but he did not explicitly

decline. Instead, Vang insisted that he had not been drinking, asked why he would want

to “blow in that,” said his lawyer told him he didn’t have to take the test, and asked the

deputy to “go easy on” him. The deputy told Vang he would arrest him if he didn’t

submit to the preliminary breath test, but Vang continued to avoid providing a breath

sample. The deputy arrested Vang and transported him to the Ramsey County Jail.

       At the jail at 3:54 a.m., the deputy read to Vang, in English, the implied consent

advisory, which said that Vang was required to take a test to determine if he was under

the influence of alcohol. The deputy asked Vang if he understood the advisory. Vang’s

response was: “Need a Hmong translator.” The deputy said, “Okay, I can get you one.

Although actually, you know, I won’t, because I’m not required to so I’m just going to

keep going.” After declining to provide an interpreter, the deputy asked if Vang wished

to consult with an attorney. Vang said, “No.” The deputy then asked Vang twice if he

would take a breath test. Vang responded, “Need a Hmong translator.” The deputy again

asked if Vang would take a test, and then asked four times what Vang’s reason was for

refusing. Vang repeated four more times that he needed an interpreter. At 3:57 a.m., the

deputy asked Vang a second time if he would like to speak with an attorney. Vang said,

“I want to talk to an attorney,” but he did not attempt to call anyone after he was offered a

phone and phone books. Instead, Vang continued to insist that he needed a Hmong

interpreter. At 4:08 a.m., the deputy decided that Vang had had a reasonable amount of

time and had chosen not to call an attorney. The deputy told Vang he had “[o]ne more

chance, do you want to take a test, do you want to call an attorney, or are you done?”


                                             3
Vang replied, “Need a Hmong translator.” At 4:19 a.m., the deputy concluded that Vang

had refused to submit to a breath test.

       Vang was charged with second-degree test refusal and second-degree driving

while impaired. A jury found Vang guilty of refusal to submit to testing and not guilty of

driving while impaired.

       Vang appeals.

                                      DECISION

                                              I.

                                Sufficiency of the Evidence

       Vang argues that the evidence presented at trial was insufficient to prove beyond a

reasonable doubt that Vang refused to submit to a breath test. The essence of Vang’s

argument is that he did not understand English well enough to have meaningfully refused

the test and that his asking for a language interpreter did not amount to refusal.1

       To establish test refusal, the state must prove some “volitional act” by the

defendant showing “[a]ctual unwillingness to submit to testing.” State v. Ferrier, 792

N.W.2d 98, 101 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Refusal may

be shown by “any indication of actual unwillingness . . . as determined from the driver’s

words and actions in light of the totality of the circumstances.” Id. at 102. A defendant’s

1
  Vang asserts on appeal that he should have been provided an interpreter under Minn.
Stat. §§ 611.31, 611.32 (2014). Vang did not, however, challenge this alleged statutory
violation in a pretrial motion alleging deprivation of his rights. See State v. Kail, 760
N.W.2d 16 (Minn. App. 2009) (reversing a pretrial suppression order based on the
defendant’s claim that his section 611.31 right to an interpreter had been violated).
Instead, Vang argues on appeal that the evidence, which included his repeated requests
for an interpreter, was insufficient to support a criminal test-refusal conviction, and that is
the argument we address.

                                              4
failure to respond to an officer’s request to take a test constitutes a refusal to submit to

testing “where there is no indication the driver is incapable of refusal.” State v. Hagen,

529 N.W.2d 712, 714 (Minn. App. 1995).

       The standard of review for sufficiency-of-the-evidence claims depends on whether

the challenged element was proved by circumstantial or direct evidence. In a criminal

test-refusal case in which the defendant did not expressly refuse, the state must prove

refusal by relying on inferences from the circumstances. Ferrier, 792 N.W.2d at 102. A

conviction based on circumstantial evidence attracts greater scrutiny on review than a

conviction based on direct evidence. State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn.

2010). Vang did not expressly refuse the test here, so the heightened standard applies.

       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 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 assume the jury believed the [s]tate’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.

       Construing the evidence in the light most favorable to the verdict, we find that the

following circumstances have been proved. Prior to the arrest and the reading of the

implied consent advisory, Vang conversed with the deputy in English and followed

directions given in English during field sobriety tests.        Vang demonstrated some


                                             5
understanding of what was going on by making reference to his two prior DWI

convictions, asking “[w]hy would I want to blow in that,” and saying a lawyer had told

him he did not have to submit to a breath test. After the arrest and the reading of the

implied consent advisory, Vang suddenly stopped speaking English except to repeat the

phrase, “Need a Hmong translator.” The deputy did not seek an interpreter because he

believed that he was not required to provide one and that Vang understood him. Despite

being given the opportunity, Vang made no attempt to call an attorney during the 25

minutes that passed between the reading of the advisory and the time when the deputy

determined Vang had refused to submit to a test.

       Vang argues that his requests for an interpreter did not amount to refusal because

he did not understand the implied consent advisory and did not understand what the

deputy was asking him to do. Vang testified that he speaks only “a little” English, and

that he has difficulty understanding English, especially when he is nervous, tired, or

uncomfortable. However, the evidence from the stop prior to the arrest showed that Vang

communicated effectively in English. He told the deputy, “I did not drink” and “I don’t

even drink.” He asserted that he did not have to take a preliminary breath test, which the

deputy confirmed. Vang then insisted he could not be arrested if he did not take a

preliminary breath test, stating,

              My lawyer say I don’t have to take a test.
                    ....

              I don’t really have to, all right? No matter what I don’t have
              to, all right. I got out of my car—you’re just going to—
              you’re just going to pull me over because of what, you think
              I’m drinking? I’m not drinking, all right?
                      ....

                                            6
              How would I be arrested? You did not—you did not caught
              me on driving, drunk driving, all right?

       He pleaded with the deputy not to proceed, saying, “Come on, man, I—I have a

second time, I—I went to court for that, all right?” and “Come on, officer, go easy on

me.” Vang’s argument that he did not understand English well enough to know that he

was required to take a breath test at the jail and that he was refusing to submit to testing is

not reasonable. We conclude that the circumstances proved are consistent with Vang’s

guilt and “inconsistent with any rational hypothesis except that of guilt.” Al-Naseer, 788

N.W.2d at 474-75 (quotation omitted). The evidence is therefore sufficient to support

Vang’s conviction for test refusal. Id.

                                              II.

                               Reasonable Refusal Defense

       Vang argues that the district court excluded evidence that his refusal was

reasonable, thereby violating his constitutional right to present a complete defense.

Standard of Review

       We begin with the standard of review. Before trial, the state brought a motion in

limine to prohibit Vang from arguing that his refusal to submit to the test was reasonable.

The district court granted the state’s motion, reasoning that reasonableness in refusing is

not mentioned in the statute and is not an element of the jury instructions. On appeal,

Vang challenges the district court’s ruling as a violation of his constitutional right to

present a complete defense. Vang contends that the applicable standard of review is

whether the district court clearly abused its discretion by erroneously excluding relevant


                                              7
evidence and whether the error was harmless beyond a reasonable doubt. State v. Blom,

682 N.W.2d 578, 622-23 (Minn. 2004); State v. Amos, 658 N.W.2d 201, 203 (Minn.

2003).

         Vang, however, does not identify any evidence he intended to present that the

district court excluded. He argues that the jury may have found his refusal reasonable

based on the number of times Vang asked for an interpreter and Vang’s explanation for

why he asked for an interpreter. However, Vang was allowed to testify regarding his

requests for an interpreter and his limited understanding of English at trial, and defense

counsel was permitted to argue that the deputy effectively did not read the implied

consent advisory because he read it only in a language Vang did not understand. Because

Vang identifies no evidence that was excluded, the standard of review regarding an

evidentiary decision is not apt.

         Rather, the more appropriate framework for reviewing the district court’s ruling is

whether the jury instructions in this case should have included the affirmative defense of

reasonable refusal. Although Vang did not request an instruction on reasonable refusal,

the district court’s ruling on the state’s motion, which prohibited him from arguing that

his refusal was reasonable, effectively denied an instruction on reasonable refusal.

         We review jury instructions “in their entirety to determine whether they fairly and

adequately explained the law of the case.” State v. Heiges, 779 N.W.2d 904, 913 (Minn.

App. 2010), aff’d 806 N.W.2d 1 (Minn. 2011) (quotation omitted); see State v. Holmberg,

527 N.W.2d 100, 106 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).

“Determining whether a jury instruction should be given lies within the discretion of the


                                              8
district court and will not be reversed but for an abuse of that discretion.” State v. Hall,

764 N.W.2d 837, 846 (Minn. 2009) (quotation omitted). A district court abuses its

discretion if it “refuse[s] to give an instruction on the defendant’s theory of the case if

there is evidence to support it.” State v. Johnson, 719 N.W.2d 619, 629 (Minn. 2006)

(quotation omitted).

Availability of a Reasonable-Refusal Defense

       Under Minnesota’s implied-consent statute, subject to certain conditions, “[a]ny

person who drives, operates, or is in physical control of a motor vehicle within this state

. . . consents . . . to a chemical test of that person’s blood, breath, or urine for the purpose

of determining the presence of alcohol.” Minn. Stat. § 169A.51, subd. 1(a) (2014).

Under the criminal test-refusal statute, “[i]t is a crime for any person to refuse to submit

to a chemical test of the person’s blood, breath, or urine under section 169A.51 (chemical

tests for intoxication) or 169A.52 (test refusal or failure; revocation of license).” Minn.

Stat. § 169A.20, subd. 2. An affirmative defense of “reasonable grounds” for refusal

appears in section 169A.53, subdivision 3(c), which is part of the implied-consent statute.

However, neither a reasonable-refusal defense nor section 169A.53 is referenced in the

criminal test-refusal statute under which Vang was convicted.

       Vang asks us to read into section 169A.20 an incorporation of section 169A.53

based largely on a statement this court made in State v. Olmscheid, that the criminal test-

refusal statute “incorporates to some degree the provisions of the implied consent statute

into the crime of refusal.” 492 N.W.2d 263, 265 (Minn. App. 1992). However, the court

in Olmscheid expressly declined to decide whether or how reasonable refusal applies in


                                               9
criminal test-refusal cases. Id. at 266 n.2. Furthermore, there is no reported Minnesota

appellate decision holding that the district court is required to allow an affirmative

defense of reasonable refusal in a criminal test-refusal case.

       Vang also cites State v. Johnson as support for his argument that a reasonable

refusal defense is available under the criminal test-refusal statute. 672 N.W.2d 235

(Minn. App. 2003), review denied (Minn. Mar. 16, 2014).             In Johnson, this court

considered whether the district court committed plain error by including a potentially

confusing example of what reasonable refusal might look like in a jury instruction on the

affirmative defense of reasonable refusal. 672 N.W.2d at 242. The court held that the

jury instruction “did not contain an error of fundamental law” and that the district court

did not abuse its discretion in giving that instruction. Id. at 243. The issue of whether a

defendant is actually entitled to argue reasonable refusal in a criminal test-refusal case

was not reached in that case.

       A reasonable-refusal instruction was not warranted here. See Holmberg, 527

N.W.2d at 106 (“An instruction need not be given if it is not warranted by either the facts

or the relevant case law.”). None of the cases relied on by Vang hold that a driver is

entitled to a jury instruction on reasonable refusal under the criminal test-refusal statute.

See Johnson, 672 N.W.2d at 242 (holding narrowly that an instruction on reasonable

refusal was not an abuse of discretion); Olmscheid, 492 N.W.2d at 266 n.2 (declining to

decide whether or how reasonable refusal applies in criminal test-refusal cases).

Moreover, the district court instructed the jury regarding the elements of the offense and

permitted the defense to argue that the elements of the offense were not met because


                                             10
Vang did not understand English sufficiently to understand the advisory and the state

refused his request to provide an interpreter. Viewing the jury instructions in their

entirety, we conclude that they “fairly and adequately explained the law of the case.”

Heiges, 779 N.W.2d at 913. We therefore conclude that the district court’s ruling on the

motion in limine—precluding argument on reasonable refusal while permitting argument

on Vang’s claimed need for interpreter—was not an abuse of discretion. Id.

                                             III.

                                          Hearsay

       Vang argues that the district court erred in admitting into evidence the implied

consent peace officer’s certificate because it is a police report that contains hearsay. The

district court ruled, and the state contends, that the certificate did not contain inadmissible

hearsay statements because the arresting deputy testified at trial regarding each fact noted

on the certificate.

       “Evidentiary rulings rest within the sound discretion of the [district] court and will

not be reversed absent a clear abuse of discretion.” Amos, 658 N.W.2d at 203. Where an

error does not implicate a constitutional right, the defendant bears the burden of

demonstrating that a new trial is required because the error substantially influenced the

jury’s verdict. State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009). When determining

whether erroneously admitted evidence significantly affected the verdict, the reviewing

court considers:      “(1) the manner in which the [s]tate presented the testimony;

(2) whether the testimony was highly persuasive; (3) whether the [s]tate used the




                                              11
testimony in closing argument; and (4) whether the defense effectively countered the

testimony.” State v. Peltier, 874 N.W.2d 792, 802 (Minn. 2016).

       At trial, Vang objected that the implied consent peace officer’s certificate was

duplicative of the deputy’s testimony and therefore should be excluded under Minnesota

R. Evid. 403. On appeal, Vang argues that the certificate is inadmissible hearsay under

Minn. R. Evid. 802. He argues that the statement does not fall within the public-records

hearsay exception of Minn. R. Evid. 803(8), because that rule excludes police reports in

criminal cases. Minn. R. Evid. 803(8)(B). Although that may be true, the fact that the

certificate cannot be admitted under the public-records exception does not preclude the

possibility that it is admissible under a different rule of evidence.

       Neither the state nor the district court specified which provision of the evidence

rules permits admission of the certificate as an exhibit. The state argued at trial that the

certificate should be admitted because the deputy testified to the observations noted on

the certificate. The district court then ruled that the certificate was admissible without

providing an explanation.       The state’s argument that the deputy testified to the

observations and Vang’s argument that the certificate is duplicative of the deputy’s

testimony lead us to infer that the certificate may have been admitted as a prior consistent

statement of a testifying witness, which is admissible nonhearsay under Minn. R. Evid.

801(d)(1)(B).

       “[A] witness’s prior statement that is consistent with his trial testimony is

admissible as nonhearsay evidence if the statement is helpful to the trier of fact in

evaluating the witness’s credibility, and if the witness testifies at trial and is subject to


                                              12
cross-examination about the statement.”       State v. Bakken, 604 N.W.2d 106, 108-09

(Minn. App. 2000) (citing Minn. R. Evid. 801(d)(1)(B)), review denied (Minn. Feb. 24,

2000). Before a statement may be admitted under rule 801(d)(1)(B), the district court

must first make a “threshold determination” that the witness’s credibility has been

challenged. Id. at 109 (citing State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997)).

The district court must then inquire into whether the out-of-court statement was

consistent with the witness’s trial testimony. Id. Finally, the district court must evaluate

whether the statement would “be helpful to the trier of fact in evaluating the witness’s

credibility.” Id.

       The district court did not follow the Bakken steps in deciding to admit the

certificate. Even if that constituted error, however, Vang is not entitled to reversal

because admitting the certificate did not substantially influence the verdict and therefore

was harmless. State v. Brown, 455 N.W.2d 65, 69 (Minn. App. 1990) (holding that this

court will not reverse unless the district court’s erroneous evidentiary ruling substantially

influenced the jury to convict), review denied (Minn. July 6, 1990).

       The implied consent peace officer’s certificate is a form filled out by the arresting

deputy shortly after the incident. The certificate states that the deputy had probable cause

to believe Vang was violating the DWI law and contains several checkboxes used to

indicate details of the stop and to show why the officer believed there was probable

cause. The deputy testified at trial regarding each of the factual details on the certificate,

so the admission of the certificate did not result in the jury receiving any facts it

otherwise would not have received. The only statement from the certificate that the


                                             13
deputy did not directly reiterate in his testimony is the statement that he “had probable

cause,” which is the legal conclusion toward which most of the other statements on the

certificate are directed. The certificate was not emphasized by the state; it was the

subject of only brief testimony by the deputy and was never mentioned again, including

in the state’s closing argument. In addition, Vang cross-examined the deputy regarding

the facts asserted in the certificate and challenged the deputy’s account in his closing

argument. Finally, although Vang argues that admitting the certificate into evidence

“invaded the jury’s role of determining whether the state proved” the probable cause

element of the crime, Vang does not argue on appeal that the deputy actually lacked

probable cause or that the state failed to prove the probable cause element.              Even

assuming an error in admitting the certificate, Vang has not demonstrated that the error

substantially influenced the jury’s verdict. Sanders, 775 N.W.2d at 887.

                                              IV.

                                 Constitutional Arguments

       Vang argues for the first time on appeal that Minnesota’s criminal test-refusal

statute violates state and federal constitutional rights to due process of law and violates

the doctrine of unconstitutional conditions by criminalizing a driver’s refusal to consent

to a warrantless search.

       This court normally will not decide an issue that is raised for the first time on

appeal, including constitutional questions in criminal cases. Roby v. State, 547 N.W.2d

354, 357 (Minn. 1996); State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Because

Vang failed to challenge the constitutionality of the test-refusal statute at the district court


                                              14
level, he has forfeited the constitutionality challenge and that issue is not properly before

this court. State v. Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015).

       In any event, we note that even if the constitutionality of the test-refusal statute

had been properly raised, Vang’s due-process argument would fail in light of the U.S.

Supreme Court’s decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and his

unconstitutional-conditions argument would fail under State v. Bennett, 867 N.W.2d 539

(Minn. App. 2015), review denied (Minn. Oct. 28, 2015).

       Affirmed.




                                             15
