State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0030

State of Minnesota,
Respondent,

vs.

Vernon Kingbird, Jr.,
Appellant.

Filed January 13, 2020
Affirmed
Cochran, Judge

Itasca County District Court
File No. 31-CR-17-3080

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Matti R. Adam, Itasca County Attorney, Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Reilly, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this direct appeal from final judgment, appellant Vernon Kingbird Jr. argues that
his conviction of third-degree criminal sexual conduct must be reversed because the district

2
court abused its discretion by allowing the stat e to specify the nature of appellant’s prior
convictions when impeaching hi s credibility and because he was denied the right to a
speedy trial. We affirm.
FACTS
The state charged appellant Vernon Kingbird Jr. with two counts of criminal sexual
conduct (CSC) and one count of assault for an incident that occurred in June 2017.
Kingbird was accused of sexually assaulting S.E. and then brandi shing a knife. S.E.
reported, and later testified at trial, that Ki ngbird digitally penetrated her vagina without
her consent and that Kingbird forcefully assaulted her while committing the act. According
to S.E., after she called police, Kingbird retrieved a knife and brandished it in her presence.
Kingbird first appeared in court in connectio n with the charges on J une 12, 2017. At a
June 26, 2017 hearing, Kingbird formally demande d a speedy trial. The district court set
trial for August 22, 2017.
In early August 2017, the state disclosed to defense counsel a Bureau of Criminal
Apprehension (BCA) test result related to a fingerprint fo und on the knife that was
consistent with Kingbird’s fingerprint. The disclosure prompted the defense counsel to
request the complete BCA file from the state. The state then reques ted the file from the
BCA. On August 18, the Friday before th e August 22 trial date, the BCA disclosed the
complete file to the st ate. That same day, the prosecu tor disclosed the file to defense
counsel. The complete file included reports from three BCA analysts who reviewed the
primary analyst’s conclusion that the fing erprint on the knife matched Kingbird’s
fingerprint. Two of the analysts agreed with the primary analyst that the fingerprint on the

3
knife matched Kingbird’s. One analyst conc luded that the fingerprint analysis was
“inconclusive.” The BCA file also incl uded medical records from the doctor who
examined S.E. on the day of the alleged assa ult. The doctor’s notes indicated that S.E.
showed no signs of abrasion or injury, but S.E .’s report of the incident to the doctor was
consistent with her report to police and ultimately with her testimony at trial.
After reviewing the BCA file, the defens e counsel called the prosecutor. He was
upset about the timing of the di sclosure of exculp atory evidence and felt that he did not
have adequate time to prepare for trial given the new information. He suggested to the
prosecutor that the prosecutor di smiss the case without prejud ice and refile the case only
“after all [the state’s] evidence was obtaine d and adequately disclosed to” Kingbird’s
defense attorney. The prosecutor agreed a nd dismissed the case pursuant to Minn. R.
Crim. P. 30.01 on August 20, 2017.
The state refiled charges against Kingbird on November 22, 2017, after conducting
additional BCA testing for DNA on the clothes that S.E. was wearing during the assault.
1
The state charged Kingbird by complaint with one count each of CSC in the first, second,
third and fourth degree and one count of assa ult in the second de gree (assault with a
dangerous weapon). Kingbird was br ought into custody and appeared on
November 28, 2017 for a first appearance. At a December 4, 2017 second appearance,
Kingbird appeared with new counsel. Kingbird waived an omnibus hearing, and reasserted

1 No DNA evidence was introduced at trial.

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his speedy trial demand. The district court scheduled the trial for the January 10, 2018 trial
block.
On January 9, Kingbird withdrew hi s speedy trial demand and requested a
continuance in order to pursue omnibus issu es. An omnibus hearing was scheduled for
January 29, but Kingbird requested a continuance of that hearing to allow his attorney to
do additional research regarding the spee dy trial issue. The omnibus hearing was
rescheduled to March.
On February 23, Kingbird filed a motion to dismiss based on a claimed violation of
his right to a speedy trial. The March omnibus hearing was rescheduled twice, eventually
to April. But before the omnibus hearing occurred, Kingbird requested a competency
evaluation under Minn. R. Crim. P. 20.01. The April omnibus hearing was cancelled to
await the results of the competency evaluation. The evaluation was completed on April 30.
The psychologist who examined Kingbird de termined that Kingbird was “competent to
proceed to trial.” On May 29, the district court, with agreement of the parties, adopted the
evaluator’s determination and found Kingbird to be competent.
On June 26, the district court held a h earing on the speedy trial motion. During the
hearing, the attorney who represented King bird in August 2017 testified about the
disclosure of the BCA file and his suggestion to the prosecutor to dismiss the case without
prejudice. Kingbird also tes tified that the delay took a “to ll” on him and asserted that he
was prejudiced by the pretrial delay. The district court later issued a written order denying
Kingbird’s motion to dismiss.

5
Trial began on August 15, 2018. S.E. tes tified to her recollection of the incident.
The state also called police officers involved in investigating the incident, the doctor who
examined S.E. on the day of the incident, and the BCA analysts involved in the fingerprint
analysis, among other witnesses. Kingbird also testified, generally claiming that S.E. made
sexual advances towards him and that any se xual contact that he had with S.E. was
consensual. He testified that the knife belonged to S.E. and that he had handled it because
he wanted to look at it. The district court allowed the state to impeach Kingbird with four
prior felony convictions under Minn. R. Evid. 609(a).
The jury found Kingbird not guilty of CSC in the first and second degree, guilty of
CSC in the third and fourth de gree, and not guilty of assault in the second degree. The
district court sentenced Kingbird in October 2018.
Kingbird appeals.
D E C I S I O N
Kingbird argues that the pretrial delay in this case deprived him of his right to a
speedy trial. Alternatively, Kingbird maintains that he is entitled to a new trial because the
district court abused its discretion by allowing the state to disclose the nature of four prior
felony convictions when impeaching his credibility under Minn. R. Evid. 609. We address
each argument in turn.
I. Kingbird was not denied th e right to a speedy trial.
Kingbird contends that the delay between his first appear ance in June 2017 on the
original charges and the August 2018 trial in this matter constitutes a denial of his right to
a speedy trial. The state maintains that Kingbird was not denied a speedy trial because the

6
pretrial delay in this case was primarily attributable to Kingbird, because Kingbird did not
forcefully assert his right to a speedy trial, and because Kingbird was not prejudiced by the
delay. We review de novo whether Kingbird has been denied his constitutional right to a
speedy trial. State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017).
“To determine whether a speedy-trial vi olation has occurred, we apply the
four-factor balancing test set forth by th e Supreme Court of the United States in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 [(1972)].” Osorio, 891 N.W.2d at 627. The
four factors are: “(1) the length of the dela y; (2) the reason for the delay; (3) whether the
defendant asserted his or her right to a spee dy trial; and (4) whethe r the delay prejudiced
the defendant.” Id. (quotations omitted). “None of thes e factors is ‘either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they
are related factors and must be considered together with such other circumstances as may
be relevant.’” State v. Taylor, 869 N.W.2d 1, 19 (Minn. 2015) (quoting Barker, 407 U.S.
at 533, 92 S. Ct. at 2193). It is “a difficu lt and sensitive balancing process” in which the
court considers “the conduct of both the State and the defendant.” Osorio, 891 N.W.2d at
628 (quotations omitted).
A. The Length of the Delay
“The length of the delay is a triggeri ng mechanism which determines whether
further review is necessary.” Id. (quotations omitted). Analysis of the other three factors
is only required if the length of the delay is presumptively prejudicial. See State v. Johnson,
498 N.W.2d 10, 16 (Minn. 1993).

7
The right to a speedy trial under the Sixt h Amendment attaches either when the
defendant is formally charged or when he is arrested and held to answer to a criminal
charge. Osorio, 891 N.W.2d at 628. A six mont h delay between attachment of the
constitutional right and trial is presumptively prejudicial, “triggering an inquiry into the
remaining Barker factors.” Id.2
While the parties argue on appeal over whether the length of the delay should
include the time between dismissal of the original set of charges and refiling of the second
set of charges, 3 they agree that the length of the pr etrial delay here is presumptively
prejudicial. Consequently, we conclude that the length of delay weighs in Kingbird’s favor
and that analysis of the other Barker factors is required.
B. The Reason for the Delay
“Under the second prong of the Barker test, the key question is whether the
government or the criminal defendant is more to blame for the delay.” Osorio, 891 N.W.2d
at 628 (quotations omitted). “Once we have determined which party is responsible for the
delay, we must consider the specific reason for the delay.” Id. “We weigh various reasons
differently.” Id. The responsibility for an overburdened judicial system rests with the state.
State v. Jones , 392 N.W.2d 224, 235 (Mi nn. 1986). But this fact or weighs less heavily
against the state than when it deliberately attempts to delay trial. Id. Delays caused by a

2 In Minnesota, if a defendant demands a sp eedy trial under Minn. R. Crim. P. 11.09, a
delay of just 60 days is pr esumptively prejudicial. State v. Windish, 590 N.W.2d 311,
315-16 (Minn. 1999). On appeal, the par ties frame their arguments on this factor
considering only the six-month measure indicated in Osorio.
3 If the delay includes this time, the delay in bringing Kingbird to trial is 14 months. If not,
it is 11 months.

8
defendant’s own motions may be attributable to the defendant and weigh against him in a
speedy trial challenge. See Johnson, 498 N.W.2d at 16. A de lay to facilitate a defense
motion for a competency evaluation under Rule 20.01 is attributable to the defendant. See
State v. DeRosier, 695 N.W.2d 97, 109 (Minn. 2005).
Both parties share some of the responsibility for the pretrial delay in this case. While
the state maintains that Kingbird is more to blame for the pretrial delay that resulted from
the dismissal of the original charges because his previous defense counsel suggested that
the prosecutor dismiss the charges, we concl ude that the responsibility for this delay is
more attributable to the state. The state did not disclose relevant evidence in the BCA file,
including medical records, until shortly before trial was to be gin. We note that the state
admitted to the district court that it was negligent in failing to disclose the medical records
contained in the BCA file.
Many of the later delays, however, ar e attributable to Kingbird. At a
December 4, 2017 hearing, Kingbird reasserted his right to a speedy trial. The district court
then scheduled the case for the trial bloc k beginning on January 10, 2018. But on
January 9, the day before the scheduled tria l block, Kingbird withdrew his speedy trial
demand, and requested a continuance of the tria l as well as the scheduling of an omnibus
hearing. The district court granted Kingbird’s requests and scheduled an omnibus hearing
for January 29. Then, at the January 29 he aring, Kingbird’s counsel requested that the
omnibus hearing be continued to March to allow him additional time to research whether
Kingbird’s right to a speedy trial had been violated. Kingbird eventually filed a motion to
dismiss, alleging a violation of his right to a speedy trial. The omnibus hearing set for

9
March 5 was subsequently continued two more times for reasons relating to Kingbird’s
motion. Thereafter, on April 12, Kingbird’s attorney requested a competency evaluation
for Kingbird under Minn. R. Crim. P. 20.01, which delayed both the omnibus hearing and
the trial into the summer of 2018.
While both parties share some of the respon sibility for the delays in this case, the
record demonstrates that Kingbird was at fault for more of the significant delays in bringing
the matter to trial. Consequently, we conclude that this factor weighs slightly in favor of
the state.
C. Whether Kingbird Asserted the Right to a Speedy Trial
“Whether and how a defendant asserts his right is closely related to the other
[Barker] factors . . . .” Osorio, 891 N.W.2d at 629 (quotation omitted). “The defendant’s
assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining
whether the defendant is bei ng deprived of the right.” Id. (quotation omitted). “[T]he
frequency and force of a demand must be considered when weighing this factor and the
strength of the demand is likely to reflect the seriousness and extent of the prejudice which
has resulted.” State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989).
Kingbird maintains that this factor weighs heavily in his favor because he asserted
the right at six hearings. The state concedes that Kingbird asserted his right to a speedy
trial at the hearings, but argues that this factor weighs against Kingbird because he
expressly withdrew the demand at the January 9, 2018 hearing and did not reassert it until
June 26, 2018.

10
Though Kingbird withdrew his demand for a speedy trial in order to bring a motion
to dismiss, he first made the demand while the prior charges were pending and eventually
reasserted the right in December 2017 after the new charges were filed. After withdrawing
that demand, Kingbird later reasserted the ri ght after the competency and omnibus issues
were resolved. Consequently, we conclude that this factor weighs s lightly in Kingbird’s
favor.
D. Whether Kingbird was Prejudiced by the Delay
In State v. Strobel, this court explained the three forms of prejudice to consider when
assessing whether a speedy-trial violation has occurred:
“Unreasonable delay between formal accusation and trial
threatens to produce more than one sort of harm, including
oppressive pretrial incarcerati on, anxiety and concern of the
accused, and the possibility that the accused’s defense will be
impaired by dimming memories and loss of exculpatory
evidence. Of these forms of prejudice, the most serious is the
last, because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system.”

921 N.W.2d 563, 570 (Minn. App. 2018) (quoting Doggett v. United States, 505 U.S. 647,
654, 112 S. Ct. 2686, 2692 (1992)) (citations omitted), aff’d (932 N.W.2d 303
(Minn. 2019)).
Kingbird does not argue th at the delay caused the most serious form of prejudice—
a prejudice to his ability to present a defense at trial. Instead, he maintains that the pretrial
delay in this case caused him anxiety and concern, and that it resulted in oppressive pretrial
incarceration.

11
Kingbird contends that the pretrial dela y in this case caused him unusual anxiety
and concern because he suffers from mental health conditions. When analyzing whether
delay causes prejudice to a defendant’s interest in avoiding undue anxiety and concern, the
question is whether a defendant suffers anxiety that “is greater than the anxiety of any other
defendant.” State v. Hahn, 799 N.W.2d 25, 33 (Minn. App. 2011), review denied (Minn.
Aug. 24, 2011). Kingbird testified that the pe nding charges took a “toll” on him. But he
did not testify that his mental condition amplified his pretrial anxiety or that the pretrial
incarceration negatively impacted his mental health. While ther e is support in the record
that Kingbird suffers from mental health conditions, we conclude that the record does not
support Kingbird’s claim that the level of anxiety he experienced as a result of the delays
was any greater than that of any other defendant.
Kingbird also asserts that his pretrial incarceration was oppressive. We are not
persuaded. In determining wh ether a defendant’s pretrial in carceration is oppressive, we
may consider whether pretrial delay is due to the defendant’s own actions. Johnson,
498 N.W.2d at 16. The district court releas ed Kingbird from custod y with conditions of
release twice while the charge s were pending. Both times, Kingbird was charged with a
new offense shortly after release, therefore violating the conditions of his release, and was
brought back into custody. Considering that the reason that Kingbird remained in custody
pending trial was his failure to remain law abiding and comply with conditional release,
we conclude that Kingbird’s pretrial incarceration was not oppressive.

12
Because Kingbird did not suffer prejudice as a result of his delay, we conclude that
this factor does not support Kingbird’s assertion that the pretrial delay violated his right to
a speedy trial. See Osorio, 891 N.W.2d at 632.
E. Balancing the Barker Factors
We have concluded that two factors weigh in the state’s favor and two factors weigh
in Kingbird’s favor. Minnesota appellate c ourts have emphasized the importance of the
prejudice factor in balancing the Barker factors. See Jones , 392 N.W.2d at 234-36
(concluding no violation of speedy trial right when no prejudice is shown despite the other
three Barker factors weighing in defendant’s favor); Strobel, 921 N.W.2d at 573 (same).
While the prejudice factor alone is neither “a necessary or sufficient condition to the finding
of a deprivation of the right to a speedy trial,” we place particular emphasis on the complete
lack of prejudice demonstrated in this case. Strobel, 921 N.W.2d at 569. Considering all
of the relevant circumstances and that multiple factors favor the state, we conclude that the
record does not establish a violation of Kingbird’s constitutional right to a speedy trial.
II. The district court did not abuse its di scretion by allowing the state to specify
the nature of Kingbird’s prior conv ictions introduced under Minn. R.
Evid. 609.

Next, Kingbird maintains that the district court abused its discretion by allowing the
state to specify the nature of Kingbird’s prior convictions while impeaching Kingbird under
Minn. R. Evid. 609.

13
Minnesota Rule of Evidence 609(a) allo ws a party to impeach a witness with
evidence of a prior conviction:
For the purpose of attacking th e credibility of a witness,
evidence that the witness has be en convicted of a crime shall
be admitted only if the crime (1 ) was punishable by death or
imprisonment in excess of one year under the law under which
the witness was convicted, and th e court determines that the
probative value of admitting this evidence outweighs its
prejudicial effect, or (2) involved dishonesty or false statement,
regardless of the punishment.

To determine whether the probative value of admitting a prior conviction outweighs its
prejudicial effect, the district court must consider the five Jones factors:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater reas on for not permitting use of the
prior crime to impeach), (4) the importance of [the]
defendant’s testimony, and (5) the centrality of the credibility
issue.

State v. Griffin , 846 N.W.2d 93, 103-04 (Minn. App. 2014), (quoting State v. Jones ,
271 N.W.2d 534, 538 (Minn. 1978)), review denied (Minn. Aug. 5, 2014). An appellate
court “will not reverse a district court’s rulin g on the impeachment of a witness by prior
conviction absent a clear abuse of discretion.” State v. Hill, 801 N.W.2d 646, 651 (Minn.
2011); see also State v. Lloyd, 345 N.W.2d 240, 246 (Minn. 1984) (“We must uphold the
trial court’s ruling [on impeachment evidence under Rule 609] unle ss a clear abuse of
discretion is shown.” (quotatio n omitted)). Moreover, an appe llate court will not grant
relief unless the appellant demonstrates that there is a reasonable possibility that the error
“significantly affected the verdict.” Griffin, 846 N.W.2d at 103.

14
It is within the district court’s discreti on whether to allow the state to impeach a
defendant with an unspecifi ed felony conviction. Hill, 801 N.W.2d at 652-53. “[T]he
decision about what details, if any, to di sclose about the conviction at the time of
impeachment is a decision that remains within the sound discre tion of the district court.”
Id. at 652. “To exercise that discretion properly, a district court must weigh the probative
value of admitting the evidence against its prejudicial effect.” Id. “If a court finds that the
prejudicial effect of disclosing the nature of a felony conviction outweighs its probative
value, then it may still allow a party to im peach a witness with an unspecified felony
conviction if the use of the unspecified conviction satisfi es the balancing test of
Rule 609(a)(1).” Id. at 652-53.
The district court allowed the state to im peach Kingbird with four prior felony
convictions for: (1) escape from custody, (2) obstructing legal process, and (3) two
fifth-degree controlled-substance crime convic tions. In ruling that the prior convictions
were admissible, the district court considered all five Jones factors. First, it found that the
prior convictions had impeachment value be cause they were probative of Kingbird’s
trustworthiness. Second, it fo und that the prior convictions , the oldest being from 2013,
were close enough in time to be relevant fo r impeachment purposes. Third, the district
court found that the prior convictions were not similar to the charged crimes, weighing in
favor of admitting them under Rule 609. F ourth, it found that Ki ngbird’s testimony was
important, but recognized that two of Kingbird’s statements had already been admitted and
received into evidence without objection, in cluding a claim of innocence. Finally, the
district court found that credibility was the ce ntral issue of the trial because Kingbird and

15
S.E. were the only witnesses to the incident. Based on its review of the Jones factors, the
district court ordered that the state could impeach Kingbird with the prior convictions but
that the state could not elicit details about each offense. Instead, the district court allowed
the state to name the offenses and the date of each offense.
Kingbird does not challenge the admissibi lity of the offenses under Minn. R.
Evid. 609(a)—he argues only that the district court abused its discretion by allowing the
state to disclose to the jury that Kingbird had been convi cted of escape from custody,
fifth-degree controlled-substance crime, and obstruction of legal process. He maintains
that the names of these offenses were not probative because the co nvictions were only
probative of Kingbird’s “general lack of respect for the law” and that allowing the state to
disclose the nature of the offenses was prejudicial. See Hill, 801 N.W.2d at 652 (“Under
both our approach to Rule 609(a) and the comm on law tradition, it is the general lack of
respect for the law, rather than the specific nature of the conviction, that informs the
fact-finder about a witness’s credibility, at least with respect to convictions other than those
involving dishonesty or false statements.”).
We conclude that the district court did not abuse its discretion in allowing the state
to disclose the nature of th e offenses. The district c ourt properly considered the Jones
factors in determining whether the prior convictions were more probative than prejudicial.
The district court’s analysis of the Jones factors is logical and well-reasoned, and
importantly, analyzes the admi ssibility of the offenses assu ming that the nature of the
offense would be disclosed. We determine that the district court acted within its discretion

16
in concluding, after consideration of the Jones factors, that the prior specified offenses were
admissible under Rule 609(a).
We also reject Kingbird’s argument th at identifying the crimes by name was
prejudicial. Kingbird contends that the cr imes of escape from custody, fifth-degree
controlled-substance crime, and obstruction of legal process might have caused the jury to
believe that he has the propensity to act fo rcefully and therefore committed the charged
crimes. But none of the identified offenses, by name only, suggest that Kingbird used any
force to accomplish the crime. Moreover, the jury acquitted Kingbird of first and
second-degree CSC and of second-degree assault—all offenses involving the use of force.
Consequently, the argument that the jury improperly consider ed the prior convictions as
evidence that Kingbird was gui lty of the charged crimes because he was prone to act
forcefully is not persuasive.4
Because we conclude that Ki ngbird was not deprived of hi s right to a speedy trial
and that the district court did not abuse its discretion by allowing th e state to specify the
nature of the prior convictions, we affirm Kingbird’s conviction.
Affirmed.

4 Kingbird also maintains that the danger of prejudice was heightened in this case because
the district court did not give a cautionary instruction to th e jury on the proper use of
Rule 609(a) evidence. See 10 Minnesota Practice, CRIMJIG 2.02 (2019); 10 Minnesota
Practice, CRIMJIG 3.15 (2019). Kingbird does not argue that the district court erred in
failing to give the instruction. We conclude that the district court’s failure to give a
sua sponte cautionary instruction did not ca use the specified offenses to become so
prejudicial as to outweigh their probative value under these circumstances because the
alleged prejudice identified by Ki ngbird is nonexistent. An d because Kingbird does not
argue that the district court erred by failing to give a cautionary in struction, we do not
consider this issue.