State of Minnesota v. Thomas Jerard Swenson

This opinion will be unpublished and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UNPUBLISHED OPINION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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