State of Minnesota v. Thomas Jerard Swenson ( 2015 )

This opinion will be unpublished and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
A13-2367
State of Minnesota,
Respondent,
vs.
Thomas Jerard Swenson,
Appellant.
Filed January 12, 2015
Affirmed
Kirk, Judge
Ramsey County District Court
File No. 62-CR-12-7825
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Elizabeth Lamin, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
KIRK, Judge
On appeal from his convictions of first-degree assault, fourth-degree assault, and
obstructing legal process, appellant argues that (1) the evidence is insufficient to support
his conviction of first-degree assault, and (2) the district court abused its discretion by not
allowing appellant’s counsel to cross-examine the victim about the status of her worker’s
compensation claim. We affirm.
FACTS
In September 2012, respondent State of Minnesota charged appellant Thomas
Jerard Swenson with first-degree assault. The complaint alleged that on March 24, 2010,
appellant assaulted St. Paul Police Officer F.R. after she responded to a 911 hang-up call
at appellant’s home. The state later filed an amended complaint adding one count of
fourth-degree assault and one count of obstructing legal process.
The district court held a jury trial in July 2013. F.R. testified that on the date of
the incident she was on routine patrol when she responded to a request from dispatch to
check on the welfare of a man who called 911, screamed “you bunch of liars” into the
phone, and then hung up. When she arrived at the house, F.R. rang the doorbell. An
elderly woman, later identified as appellant’s mother, F.S., answered the door and
whispered to F.R. that appellant had been threatening her and her husband and drinking
beer. F.S. allowed F.R. to enter the house and F.R. saw appellant standing in the middle
of the room. Appellant’s right hand was in his front pants pocket, a “fierce, angry” look
was on his face, and he had a “squared” posture.
F.R. walked toward appellant and told him to take his hand out of his pocket, but
appellant thrust his hand deeper into his pocket. Appellant swung his arm at her with a
closed fist when she was within about an arm’s length of appellant. F.R. pulled out her
handcuffs and told appellant that she was going to handcuff him for her own safety, but
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that he was not under arrest. Appellant swung at her again with a closed fist and grazed
the right side of her face. F.R. stepped back and shot appellant in the chest with the
Taser. Appellant removed the prongs of the Taser from his chest and charged at F.R.,
hitting her with a closed fist underneath her chin. F.R. felt like her head “exploded,” she
saw lights, and she flew into the door and then onto the floor on her stomach. Appellant
kicked F.R. in the back of the head three or four times and then she blacked out.
Once F.R. managed to get up from the floor, she continued to struggle with
appellant, using Mace and her police baton in the attempt to subdue him. She also
requested assistance on her police radio. Appellant punched her in the head and chest,
causing her to feel like she was going to lose consciousness. F.R. eventually chased
appellant outside of the house, where another officer helped her handcuff appellant. F.R.
testified that after the incident the right side of her head and face were tender and she
could not put her teeth together. F.R. also complained that her ribs, back, and neck hurt,
and she had bruises on both of her knees.
Two St. Paul police officers testified that they responded to F.R.’s request for
assistance. Officer Kevin Clarkin testified that when he arrived at the scene he found
appellant and F.R. outside the house. F.R. “looked like she just was in a fight,” was
sweating and leaning to one side, and kept saying, “[H]e kicked me in the head.”
Sergeant John Linssen testified that he arrived at the house after F.R. and Officer Clarkin
had restrained appellant. He observed F.R. stand up and then stagger a couple of steps.
F.R. appeared light-headed, was breathing very heavily, was shaking, and had red marks
on her neck and the side of her face. Sergeant Linssen requested that medics respond to
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the scene and they transported F.R. to the hospital because they were concerned that she
had sustained a head injury.
F.R. testified that prior to the incident she was in good physical health, but
afterward her life “absolutely turned upside down.” She is no longer able to engage in
her sewing hobby because she suffers from double vision, cannot stand the sound of the
television, is very light sensitive, has difficulty reading, and suffers from chronic
debilitating headaches. She testified that her physician administers 26 to 31 injections in
her head every 11 weeks to treat her headaches, but she still suffers 16 to 18 debilitating
headaches per month that make her unable to function. F.R. testified that her relationship
with her husband has suffered. In addition, she testified that she is easily angered, has
isolated herself from her children, cannot multitask, and is no longer able to work as a
police officer.
Two of F.R.’s medical doctors and her psychologist testified during the trial about
F.R.’s injuries. Marian Rubenfeld, M.D./Ph.D., F.R.’s neuro-opthalmologist, testified
that she diagnosed F.R. with esotropia at distance and near, photophobia, and ambient
focal disease. She testified that esotropia means that F.R.’s eyes are not properly aligned;
photophobia means that F.R. experiences light sensitivity; and ambient focal disease
means that F.R.’s sensory apparatus is off, causing her to feel dizzy and strange in certain
situations. After F.R. continued to experience double vision, Dr. Rubenfeld diagnosed
F.R. with monocular diplopia bilaterally, which is permanent double vision. Steven
Stein, M.D., F.R.’s neurologist, testified that he diagnosed F.R. with a significant head
injury and posttraumatic migraine-type headaches, which included symptoms such as
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light sensitivity, nausea, and sound sensitivity. Dr. Stein testified that F.R. experienced
migraines before the incident, but they became much more frequent and severe afterward
and it is unlikely that they will resolve in the near future. Finally, Gary Goldetsky,
Psy.D., F.R.’s psychologist, testified that F.R. reported pain, a decrease in cognitive
functioning, low confidence, constant headaches, intolerance of light and sound,
depression, and anxiety.
Appellant’s parents, F.S. and M.S., testified in his defense. They both described a
different version of the events, claiming that F.R. tripped and fell and hit her head on the
doorjamb after she struggled with appellant.
The jury found appellant guilty of the three counts alleged in the complaint. The
district court accepted the jury’s verdicts and adjudicated him guilty of all three counts.
This appeal follows.
DECISION
I. The evidence is sufficient to support appellant’s conviction of first-degree
assault.
Appellant challenges the sufficiency of the evidence to support his conviction of
first-degree assault. In assessing whether the evidence was sufficient to support a jury’s
guilty verdict, this court “determine[s] whether the legitimate inferences drawn from the
facts in the record would reasonably support the jury’s conclusion that the defendant was
guilty beyond a reasonable doubt.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012).
We assume that the jury believed the state’s witnesses and disbelieved contrary evidence.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). We will not disturb the jury’s
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verdict if the jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude the
defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-
77 (Minn. 2004).
A person commits first-degree assault if he “assaults another and inflicts great
bodily harm.” Minn. Stat. § 609.221, subd. 1 (2008). “Great bodily harm” is defined as
“bodily injury which creates a high probability of death, or which causes serious
permanent disfigurement, or which causes a permanent or protracted loss or impairment
of the function of any bodily member or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2008).
Appellant argues that none of F.R.’s injuries satisfy the definition of great bodily
harm. We disagree. The evidence in the record is sufficient to support a conclusion that
F.R. experienced “a permanent or protracted loss or impairment” of several neurologic
and ophthalmologic functions, which satisfies the definition of great bodily harm.
Sergeant Linssen and F.R. testified that F.R. was transported to the hospital immediately
after the incident due to concerns that she experienced a head injury, and two of F.R.’s
medical doctors and her psychologist testified extensively at trial about the diagnoses she
has received as a result of her head injury, including permanent double vision and chronic
headaches, among other things.
Appellant argues that F.R.’s injuries are insufficient to establish great bodily harm
because she did not suffer any broken bones, injuries to internal or external organs, or
permanent scarring. We disagree that these types of visible injuries are required to
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establish great bodily harm. Instead, courts look specifically at the victim’s injuries in
each case to determine whether they satisfy the definition. Although several Minnesota
cases discuss victims with head injuries in addition to other injuries, there are no
Minnesota cases that discuss victims with injuries like F.R.’s injuries. But Minnesota
cases have noted that head injuries resulting in loss of consciousness may constitute great
bodily harm. See State v. Stafford, 340 N.W.2d 669, 670 (Minn. 1983) (“Arguably,
‘great bodily harm’ is inflicted if one knocks someone out briefly.”); State v. Jones, 266
N.W.2d 706, 710 (Minn. 1978) (concluding that there was sufficient evidence to justify
finding that the victim suffered great bodily harm when she was found unconscious and
on the verge of shock, did not regain consciousness for a day, was hospitalized for a
week, and almost suffered a miscarriage). Here, F.R.’s permanent neurologic and
ophthalmologic injuries resulting from her head injury are at least as serious as the
injuries sustained by the victim in Jones. See 266 N.W.2d at 710.
Accordingly, we conclude that the evidence is sufficient to support appellant’s
conviction of first-degree assault.
II. The district court did not abuse its discretion by prohibiting appellant’s
counsel from cross-examining F.R. about the status of her worker’s
compensation claim.
Appellant argues that the district court violated his right to confrontation when it
did not allow him to cross-examine F.R. about the status of her worker’s compensation
claim. “The district court has ‘broad discretion’ when it comes to the admission of
evidence.” State v. Hall, 764 N.W.2d 837, 841 (Minn. 2009). Appellate courts will only
reverse a district court’s evidentiary rulings if the court abused its discretion. Id. The
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district court also has broad discretion to control the scope of cross-examination. State v.
Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995). But the district court’s discretion is
limited by the Confrontation Clause of the Sixth Amendment to the United States
Constitution, which “guarantees the right of an accused in a criminal prosecution to be
confronted with the witnesses against him.” Id. at 640 (quotations omitted).
Under the Due Process Clause, “every criminal defendant has a right to
fundamental fairness and to be afforded a meaningful opportunity to present a complete
defense.” State v. Crims, 540 N.W.2d 860, 865 (Minn. App. 1995) (quotation omitted),
review denied (Minn. Jan. 23, 1996). This right includes the opportunity to present the
defense’s version of the facts to the jury. Id. The Confrontation Clause “serve[s] the
same purpose, affording a defendant the opportunity to advance his or her theory of the
case by revealing an adverse witness’s bias or disposition to lie.” Id. As a result, “the
exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” State v. Pride, 528 N.W.2d 862,
865 (Minn. 1995). But a defendant does not have the right to introduce evidence that is
irrelevant or unduly prejudicial. Crims, 540 N.W.2d at 866.
Here, appellant’s counsel informed the district court during the jury trial that he
intended to cross-examine F.R. about the details of a worker’s compensation claim that
she filed. He offered the following explanation for the relevance of the testimony:
Apparently, the workers’ compensation challenges that the
injury that she sustained is either not substantiated or not the
result of this occurrence and, secondly, that it is part of her
motivation, in terms of making the statements and claims that
she is, to justify her injury. I wouldn’t go into it . . . other
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than just a simple question or two regarding the fact it has
been—as I understand, been unawarded as of right now.
In response, the district court stated:
[A]s I understand workers’ compensation claims, the
issues in those cases are, one, did the injury occur in the
course and scope of the applicant’s employment—that’s the
first issue. The second issue, then, is the nature and extent of
the claimant’s injury.
So, you know, on the first issue, did the injury occur in
the course and scope of her employment, as I understand
workers’ compensation law, whether [F.R.] was assaulted or
not would not be determinative on that issue. She’s got to
show that she was injured in the course and scope of her
employment, and whether she was injured because she was
assaulted or whether she was injured because, in the course of
trying to restrain a disorderly suspect, she tripped and fell and
hit her head. I don’t know that that’s what the evidence is,
I’m just using that as an example. Either one of those would
be sufficient, normally, to sustain a workers’ compensation
claim.
So I’m trying to figure out the relevance of . . . her
testimony here about that claim. In other words, she doesn’t
. . . need a criminal conviction in this case in order to prevail
on a workers’ compensation claim.
The district court concluded that F.R.’s worker’s compensation claim was not
relevant. But the district court stated that appellant’s counsel could cross-examine F.R.
about “the nature and extent of her injury” and any relevant preexisting injuries. After
further discussion, the district court also determined that appellant’s counsel could ask
F.R. if she had filed a worker’s compensation claim.
On appeal, appellant argues that evidence that F.R. filed a worker’s compensation
claim was relevant to show F.R.’s bias and motivation to testify that appellant assaulted
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her. He contends that F.R. had a financial interest in testifying as she did because the
success of her worker’s compensation claim hinged on whether her injuries were
attributable to a workplace injury or a preexisting injury. He also argues that she had a
penal interest in offering testimony that was consistent with her statements in her
worker’s compensation claim. In response, the state contends that appellant proposed a
fishing expedition and never provided an offer of proof regarding the status of F.R.’s
worker’s compensation claim.
We agree with the state. Appellant should have moved the district court before
trial under Minn. R. Crim. P. 9 to obtain access to F.R.’s worker’s compensation file or
for the district court to conduct an in camera review of the file. As postured, appellant’s
counsel proposed a fishing expedition. Appellant’s counsel did not provide the district
court with any evidence of the status of the worker’s compensation claim, and he
admitted that he was not sure whether F.R.’s worker’s compensation claim had been
denied as a whole or in part and that he wanted to find out more about it. The record
establishes that the district court carefully considered appellant’s broad request before
concluding that the evidence was not relevant. But appellant had the opportunity to show
that F.R. was biased by cross-examining her about the nature and extent of her injuries
and whether she had filed a worker’s compensation claim. Therefore, we conclude that
the district court did not abuse its discretion by not allowing appellant to question F.R.
about the status of her worker’s compensation claim.
Affirmed.
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