                         This opinion will be unpublished and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
                                    A14-1633

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Rodney Joseph Hill,
                                      Appellant.

                                 Filed August 10, 2015
                                       Affirmed
                                  Rodenberg, Judge

                               Clay County District Court
                                File No. 14-CR-13-3805

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

Brian J. Melton, Clay County Attorney, Johnathan R. Judd, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and

Klaphake, Judge.*




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                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant challenges his convictions for driving while impaired and test refusal,

and his sentence. He challenges the constitutionality of his test-refusal conviction, argues

that the evidence submitted at trial is insufficient to support his driving-while-impaired

conviction, and asserts that the district court abused its discretion in denying his

downward-departure motion at sentencing. We affirm.

                                         FACTS

       In the early morning of November 10, 2013, Moorhead Police Officer Raul Lopez

observed a stationary motor vehicle on the side of a street. He saw a pedestrian who

appeared to be speaking to the vehicle’s driver. Thinking the vehicle might be stalled,

Officer Lopez stopped behind it “to try to figure out what was going on.” He approached

the parked vehicle, observed that the motor was running, and spoke to the pedestrian.

That pedestrian told Officer Lopez that the people in the vehicle had an argument and one

of the passengers “was walking down the on-ramp towards the freeway.” Officer Lopez

also spoke to the person seated in the driver’s seat, who was identified as appellant

Rodney Hill.

       Officer Lopez (after attending to safety concerns of the person walking toward the

freeway) eventually learned that appellant’s diving privileges were revoked.         While

speaking to appellant, who remained in the driver’s seat of the vehicle, Officer Lopez

smelled the odor of alcohol coming from appellant and saw that appellant had bloodshot,

watery eyes. Officer Lopez asked appellant if he had been drinking, and appellant stated


                                             2
that he had not been drinking. Officer Lopez then asked appellant to step out of the

vehicle, and he administered standard field sobriety tests to appellant. Appellant failed

the horizontal gaze nystagmus test (showing all six clues of impairment), failed the walk-

and-turn test, passed the one-leg-stand test, and failed a preliminary breath test. Officer

Lopez arrested appellant for suspicion of driving while impaired.

       Officer Lopez transported appellant to the Moorhead County jail, where he read

appellant the Minnesota Implied Consent Advisory.            Appellant indicated that he

understood the advisory, but refused to submit to breath testing.

       Appellant was charged with first-degree driving while impaired in violation of

Minn. Stat. § 169A.20, subd. 1(1) (2012), and first-degree refusal to submit to a chemical

test in violation of Minn. Stat. § 169A.20, subd. 2 (2012).1 Appellant moved the district

court to dismiss the test-refusal charge, arguing that the statute is unconstitutional. The

district court denied the motion. Both counts were tried to a jury, which found appellant

guilty as charged.

       Appellant’s presumptive sentence, based on his criminal history and the severity

of his convictions, was commitment to the commissioner of corrections for 60 months.

At sentencing, appellant requested a downward dispositional departure, providing the

district court with eight letters of support written by appellant’s family and friends. The

state argued against a departure, emphasizing appellant’s criminal history and his failure

to seek treatment before the incident in this case, and argued for a “top-of-the-box”

1
  Appellant’s convictions were enhanced by one DWI conviction from North Dakota in
2007, one DWI conviction from Wyoming in 2009, and one impaired-driving-related
revocation in 2013.

                                             3
sentence of 72 months. The district court declined to depart from the guidelines and

sentenced appellant to prison for 51 months, at the bottom of the relevant guidelines

range. This appeal followed.

                                      DECISION

                                             I.

       Appellant challenges his conviction for test refusal, arguing that the test-refusal

statute is unconstitutional. Appellant asks us to disregard the supreme court’s precedent

in State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and that we “should decline to follow

Bernard, and instead should conclude, under McNeely, that a breath test is a

constitutionally unreasonable search.”

       Minnesota’s Impaired Driving Code criminalizes refusal to submit to alcohol

concentration testing “of the person’s blood, breath, or urine.” Minn. Stat. § 169A.20,

subd. 2. The Minnesota Supreme Court held in Bernard that “the test refusal statute is a

reasonable means to a permissive object and that it passes rational basis review.”

Bernard, 859 N.W.2d at 774.         Bernard held that a breath test is constitutionally

permissible as a search incident to arrest, and a person “does not have a fundamental right

to refuse a constitutional search.” Id. at 772-73.

       Appellant refused the same alcohol concentration test as the one at issue in

Bernard. Appellant asks us to disregard our proper role and exceed our authority as an

error-correcting court by declining to follow Bernard. See Lake George Park, L.L.C. v.

IBM Mid-America Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App.

1998) (stating that “[t]his court, as an error correcting court, is without authority to


                                              4
change the law”), review denied (Minn. June 17, 1998). Because the supreme court’s

holding in Bernard is binding on this court, and appellant offers no reasonable distinction

between this case and Bernard, we hold that the test-refusal statute is constitutional and

appellant’s conviction for test refusal is affirmed.

                                              II.

       Appellant next argues that the circumstantial evidence at trial is insufficient to

support his conviction for driving while impaired.

       “In assessing the sufficiency of the evidence, we review the evidence to determine

whether the facts in the record 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. Al-Naseer, 788 N.W.2d 469,

473 (Minn. 2010) (quotation omitted). A conviction will not be reversed if the jury could

have reasonably found the defendant guilty of the charged offense, “giving due regard to

the presumption of innocence and the state’s burden of proof beyond a reasonable doubt.”

Id. (quotation omitted).

       Appellant contends that the evidence of his alcohol impairment is circumstantial,

and the state does not dispute that contention. “A conviction based on circumstantial

evidence warrants heightened scrutiny.” See id. at 473-74. In applying the circumstantial

evidence standard, this court applies a two-step analysis. Id. (quotations omitted). The

first step is to “identify the circumstances proved.” Id. In identifying the circumstances

proved, we defer to the jury’s acceptance of the proved circumstances and reject evidence

in the record conflicting with the circumstances proved by the State. Id.; see also State v.


                                              5
McCormick, 835 N.W.2d 498, 505 n.2 (Minn. App. 2013) (noting that, when reviewing

the circumstances proved from a jury verdict of guilty, we evaluate what circumstances

the jury likely determined were proved and its likely determinations). The second step is

to determine the reasonableness of inferences drawn from those circumstances and

determine whether those reasonable inferences are consistent with guilt and inconsistent

with any other rational hypothesis.     Al-Naseer, 788 N.W.2d at 474.        We review

“circumstantial evidence not as isolated facts, but as a whole.” State v. Silvernail, 831

N.W.2d 594, 599 (Minn. 2013). “We give no deference to the fact finder’s choice

between reasonable inferences.” Al-Naseer, 788 N.W.2d at 474 (quotations omitted).

      The following circumstances were proved by the state:

              Appellant was sitting in the driver’s seat of a motor
               vehicle on November 10, 2013, and the vehicle’s engine
               was running.
              Appellant smelled of alcohol and his eyes were bloodshot
               and watery.
              Appellant failed the horizontal gaze nystagmus test as
               observed by Officer Lopez.
              Appellant failed the walk-and-turn test, using his arms for
               balance, missing touching his heel to his toe twice, and
               otherwise not performing as he had been instructed.
              Appellant passed the one-leg-stand test.
              Appellant denied consuming alcohol.
              Appellant refused to provide a breath sample for chemical
               testing after being read the implied-consent advisory.
              Officer Lopez, who was frequently assigned to night shifts
               in which he observed people with “varying levels of
               impairment,” concluded from these observable facts that
               appellant was under the influence of alcohol.

      Appellant argues that this case is similar to City of Eagan v. Elmourabit, 373

N.W.2d 290 (Minn. 1985). In Elmourabit, the supreme court concluded that “[t]he issue


                                           6
is a close one” and discussed how each factor proved was questionable, when taken

together. Elmourabit, 373 N.W.2d at 293-94. This case is easily distinguishable from

Elmourabit. English was “not [Elmourabit’s] native tongue,” there was evidence that he

was in “a heightened hyperventilative state,” that he had an “unsteady gait,” and the

arrest there occurred mid-day. Id. at 291, 293-94.

       Appellant here failed two standard field sobriety tests, smelled of alcohol, had

watery and bloodshot eyes, and refused breath testing. Officer Lopez believed, based on

his observations, training and experience, that appellant was under the influence of

alcohol. These circumstances and this evidence admit of no rational conclusion other

than that appellant was under the influence of alcohol while operating a motor vehicle.

We therefore affirm appellant’s conviction of driving while impaired.

                                            III.

       Appellant argues that the district court abused its discretion by declining to grant

his motion for a downward dispositional departure from the sentencing guidelines.

       We review a district court’s sentencing decision for an abuse of discretion. State

v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014).           A district court must impose the

presumptive sentence set forth by the Minnesota Sentencing Guidelines unless there are

“substantial and compelling circumstances” that warrant departure. State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981); Minn. Sent. Guidelines 2.D (2012). The district court “has

broad discretion [with which] we will generally not interfere.” Kindem, 313 N.W.2d at 7.

It is a “rare case which would warrant reversal of the refusal to depart.” Id.




                                             7
       Substantial and compelling circumstances are those that make a case atypical.

Taylor v. State, 670 N.W.2d 584, 587 (Minn. 2003).               A defendant’s “particular

amenability to individualized treatment in a probationary setting” will support a

dispositional departure. Soto, 855 N.W.2d at 308 (quoting State v. Trog, 323 N.W.2d 28,

31 (Minn. 1982)). Trog outlines the factors that may justify a dispositional departure, and

states that “the defendant’s age, his prior record, his remorse, his cooperation, his attitude

while in court, and the support of friends and/or family, are relevant to a determination

whether a defendant is particularly suitable to individualized treatment in a probationary

setting.” 323 N.W.2d at 31. But the presence of one or more of the factors identified in

Trog does not require that a district court depart from the guidelines. State v. Wall, 343

N.W.2d 22, 25 (Minn. 1984); see also State v. Bertsch, 707 N.W.2d 660, 668 (Minn.

2006) (stating that “we will not ordinarily interfere with a sentence falling within the

presumptive sentence range, either dispositionally or durationally, even if there are

grounds that would justify departure” (quotation omitted)).

       Appellant argues that the district court “failed to properly analyze the motion

according to the [Trog] factors.” While the district court did not specifically identify that

it was analyzing the “Trog factors,” the record reveals that the district court expressly

considered appellant’s age, family relationships, criminal history (including the breadth

of his criminal activity aside from DWI offenses), and appellant’s attitude toward

marijuana (specifically that appellant does not consider marijuana a drug). The district

court acknowledged that “I don’t doubt that [appellant] has a close relationship with his

family. And I don’t doubt that he is a good friend to his family and a good family


                                              8
member and that they feel very close to him.” But the district court also found that

“someone who has that opinion on the use of marijuana and has this history with DWIs,

from a statistical standpoint, is very likely to reoffend” and concluded that it had “to

consider the safety of the public as outweighing the right of the defendant to be free from

incarceration.”   The district court also considered the seriousness of the offense in

mitigating the duration of the sentence (within the presumptive range), stating that “[t]his

particular DWI . . . apparently the police came upon the scene [and t]hey did not see any

erratic driving behavior or dangerous driving behavior by the [appellant a]nd so I’m

going to sentence [appellant] to the lower end of the box.”

       The district court properly and comprehensively analyzed the factors and, within

its discretion, declined to dispositionally depart from the sentencing guidelines.

       Affirmed.




                                             9
