State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1658

State of Minnesota,
Respondent,

vs.

Kenneth Freeland Jami Morrow, Jr.,
Appellant.

Filed January 11, 2021
Affirmed
Segal, Chief Judge

Blue Earth County District Court
File No. 07-CR-18-455

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Patrick R. McDermott, Blue Earth County Attorney, Susan B. Devos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and Kirk,
Judge.

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

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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges his convictions of being an ineligible person in possession of
ammunition and receiving stolen property, arguing that his right to a speedy trial was
violated. Appellant also argues that the district court abused its discretion by denying his
motion for a downward durational departure. We affirm.
FACTS
On January 29, 2018, two law enforcement officers were surveilling a residence in
Mankato. The officers were conducting surveillance on A.Y., who had outstanding
warrants. The of ficers had reason to believe A.Y. w as inside the house, along with
appellant Kenneth Freeland Jami Morrow, Jr. While observing the alley in back of the
house, the officers saw A.Y., Morrow, and two unidentified men leave and get into a car.
Morrow sat in the rear, passenger-side seat of the car. The officers followed the car to the
front of the house, where one of the unidentified men got out, and the car was then driven
away from the residence.
A third officer, in a marked squad, stopped the car .1 While speaking with the
occupants, the officers detected a strong odor of marijuana coming from the car and
decided to search the car because they believed there may be narcotics inside. During the
search, the officers discovered methamphetamine, silver bars and coins, and a loaded

1 The two officers surveilling the residence were in plain clothes and in an unmarked
vehicle, so they requested a uniformed officer in a marked squad car to initiate the traffic
stop.

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firearm. The silver was discovered in a backpack that also contained a wallet with
Morrow’s identification, and the loaded firearm was discovered under the rear passenger-
side seat where Morrow had been sitting. The officers later obtained a warrant to search
the house. The officers executed the search warrant the same day as the traffic stop and
discovered additional methamphetamine, drug paraphernalia, collector’s coins, and a box
of ammunition.
One of the officers conducted a recorded interview with Morrow the following day.
During the interview, Morrow admitted that he knew the silver was stolen, but stated that
it had “nothing at all to do with” him. He also admitted t o touching the ammunition
discovered at the house, but denied owning or possessing the loaded firearm found in the
car.
Respondent State of Minnesota charged Morrow with two counts of being an
ineligible person in possession of a firearm or ammunition un der Minn. Stat. § 609.165,
subd. 1b(a) (2016), one count of being an ineligible person in possession of a firearm or
ammunition under Minn. Stat. § 624.713, subd. 1(2) (2016), and receiving stolen property
under Minn. Stat. § 609.53, subd. 1 (2016). The c omplaint alleged that Morrow was
ineligible to possess a firearm or ammunition based on a prior conviction for a crime of
violence and that he had possessed the loaded firearm discovered in the car, the ammunition
discovered during the search of the residence, and the stolen silver.
On May 7, 2018, Morrow failed to appear for an omnibus hearing and a bench
warrant was issued. On June 6, a second warrant was issued following a report that Morrow
had violated the conditions of his pretrial release. On Nov ember 29, Morrow filed a

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demand for a spe edy trial. On December 14 , Morrow’s counsel filed a letter with the
district court indicating that Morrow had been in custody in Douglas County since May 31,
2018. He faced charges in Douglas County of check forgery, controlled-substance crimes,
unlawful possession of a firearm, criminal vehicular operation, and fleeing a police officer.
The letter also reiterated the speedy -trial demand and requested that the district court
respond with possible trial dates. On December 18, court staff contacted Morrow’s counsel
about starting trial on February 5, 2019. Morrow’s counsel responded that she would be
available for trial but asked the court for a finding of good cause to start the trial outside of
the 60-day speedy-trial deadline imposed by Minn. R. Crim. P. 11.09. Morrow’s counsel
did not receive a response.
On January 10, 2019, Morrow’s counsel filed another letter with the district court,
indicating that she had not received a response following her conversation with court staff
on December 18 and again reiterating Morrow’s speedy-trial demand. On January 22, the
district court issued a n order setting the pretrial hearing for February 5, the jury trial for
February 6, and finding good cause for the delay because “there [was] no other availability
on the court calendar” and Morrow was already committed to the commissioner of
corrections. The state moved to continue the trial based on the unavailability of witnesses
from the Minnesota Bureau of Criminal Apprehension (BCA). The district court granted
the motion and set the trial for April 24, 2019 , the next available date on the court’s
calendar. Morrow filed a motion to dismiss the charges based on a violation of his right to
a speedy trial, which the district court denied.

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The jury trial commenced on April 24 , 2019. Following a two -day trial, the jury
found Morrow guilty of one count of being an ineligible person in possession of
ammunition based on his possession of the box of ammunition found at the residence and
receiving stolen property based on his possession of the silver, but acquitted him of the
charges that alleged he possessed the loaded firearm found in the car. Morrow moved for
a downward dispositional or durational departure. The district court denied the motion and
sentenced Morrow to a presumptive sentence of 60 months in prison , the mandatory
minimum for being an ineligible person in possession of ammunition. This appeal follows.
DECISION
I. Morrow’s right to a speedy trial was not violated.
The United States and Minnesota Constitutions afford criminal defendants the right
to a speedy trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. Pursuant to Minn. R.
Crim. P. 11.09, a trial must start within 60 day s of a speedy-trial demand unless the court
finds good cause for a later trial date. A defendant must be released if the trial does not
start within 120 days of the speedy -trial demand “[u]nless exigent circumstances exist.”
Minn. R. Crim. P. 11.09. If a defendant has been deprived of his constitutional right to a
speedy trial, the criminal case against him must be dismissed. State v. Osorio, 891 N.W.2d
620, 627 (Minn. 2017). We review a claimed speedy -trial violation de novo. State v.
Taylor, 869 N.W.2d 1, 19 (Minn. 2015).
“[T]o determine whether a speedy -trial violation has occurred, we apply the
four-factor balancing test set forth by the 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

6
four factors, often referred to as the Barker factors, are: “(1) the length of the delay; (2) the
reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial;
and (4) whether the delay prejudiced the defe ndant.” Id. (quotation omitted). “None of
these 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.” Taylor, 869 N.W.2d at 19 (quotation
omitted). It is “a difficult 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). We address each factor in turn.
Length of Delay
The first factor is the length of the delay. “The length of the delay is a triggering
mechanism which determines whether further review is necessary.” Id. (quotations
omitted). Analysis of the other three factors is required if the length of the delay is
presumptively prejudicial. State v. Johnson, 498 N.W.2d 10, 15-16 (Minn. 1993). Under
Minnesota law , a delay of 60 days following a speedy -trial demand is presumptively
prejudicial. State v. Windish , 590 N.W.2d 311, 315 -16 (Minn. 1999). Here, the delay
between Morrow’s November 29 speedy-trial demand and the start of the trial on April 24
was 146 days. Accordingly, the length of the delay is presumptively prejudicial and we
must analyze the remaining three factors.
Reason for Delay
The second factor requires the court to consider the reason for the delay. When
considering the reason for the delay, “the key question is whether the government or the

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criminal defendant is more to blame for the delay.” Osorio, 891 N.W.2d at 628 (quotation
omitted). Once the court has determined which party is responsible for the delay, the court
considers the specific reasons for the delay, with various reasons being weighed differently.
Id. If the delay is the result of negligence or an overcrowded court docket, the delay is
weighted less heavily than an intentional effort on the part of the state to delay trial for
improper motives. Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
Here, the reason for the delay was largely due to the court’s schedule and the state’s
request for a continuance based on witness unavailability. Morrow made his speedy-trial
demand on November 29, 2018, and his counsel explicitly requested that the district court
contact her with potential trial dates on December 14, 2018. The record indicates that
Morrow’s counsel spoke with court staff about a trial date on December 18, but the district
court did not issue an order setting a trial date until January 22, for trial to start on February
5, 2019. The state then made a request for a continuance due to witness unavailability,
which the district court granted. The district court ultimately scheduled the trial to begin
on April 24, noting that an earlier date was “impossible” because of the judge’s schedule.
It bears noting, as the district court points out in its order denying Morrow’s motion
to dismiss, that six weeks of the delay were caused by Morrow because of his failure to
appear for the omnibus hearing. When Morr ow made his speedy -trial demand on
November 29, he was not being held in custody on the charges in this case. He also had
two active warrants : one for failure to appear at the omnibus hearing and the other for
allegedly violating the terms of his conditional release . It was not until December 14 that
Morrow’s counsel advised the court that Morrow had been in custody in another county on

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new, unrelated criminal charges s ince May 2018. Morrow’s counsel did not request that
the warrants be quashed until January 10, 2019. The district court, thus, calculated that the
time period between the date Morrow’s counsel requested that the warrants be quashed
until the April trial date was 104 days, and that th e first 42 days between the demand for
the speedy trial and the request to quash should be held against Morrow and not the state.
Nevertheless, the primary reason for the delay was the court’s calendar congestion
and the unavailability of the state’s witnesses. 2 While these reasons are given less weight
than deliberate attempts to delay the trial, they still weigh against the government. State v.
Reese, 446 N.W.2d 173, 179 (Minn. App. 1989), review denied (Minn. Nov. 15, 1989).
Assertion of Speedy-Trial Right
The third factor is whether Morrow asserted his speedy-trial right. “The defendant’s
assertion of his speedy trial right is entitled to strong evidentiary weight in determining
whether the defendant is being depr ived of the right.” Osorio, 891 N.W.2d at 629
(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). Here, Morrow first made a speedy -trial demand on November 29, 2018. He
reasserted the right through counsel on December 14, 2018 , and January 10, 2019, raised

2 Morrow points out that the state ultimately did not call the BCA witnesses, who were
unavailable for the initial trial date, to testify at the trial. There could be a variety of reasons
why the state thought testimony from BCA representatives was necessary prior to trial, but
determined it was not needed once trial commenced. Thus, without more, we cannot
conclude that the motion for the continuance was brought in bad faith.

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the issue of the speedy -trial demand at the pretrial hearing, and moved to dismiss the
charges based on a violation of his speedy-trial rights. This factor therefore clearly weighs
in Morrow’s favor.
Prejudice to Defendant
The final factor considers whether Morrow was prejudiced by the delay in bringing
the matter to trial. “Three types of prejudice may result from an unreasonable delay
between formal accusation and trial: oppressive pretrial incarceration, anxiety and concern
of the accused, and the possibility that the accused’s defense will be impaired.” Osorio,
891 N.W.2d at 631 (quotations omitted). The most serious form of prejudice is the
possibility that the defense will be impaired “because the inability of a defe ndant
adequately to prepare his case skews the fairness of the entire system.” Id. (quotations
omitted).
Morrow acknowledges that he was incarcerated in Douglas County for unrelated
charges during the delay period, but argues that he nonetheless experienced more restrictive
incarceration condi tions and suffered stress and anxiety from the delay. But “[i]f a
defendant is already in custody for another offense . . . the first two interests are not
implicated.” Taylor, 869 N.W.2d at 20. Thus, Morrow’s argu ments addressing the first
two types of prejudice have no impact on the analysis.
The remaining question is “whether the defense was likely harmed by the delay.”
Id. Morrow makes no argument on this last factor and does not identify any harm caused
by the delay in mounting his defense. And our review of the record reveals no such harm.
Indeed, Morrow was acquitted of the two charges based on the allegation that he possessed

10
the loaded firearm found in the car. He was convicted of possessing the ammunition found
in the house and the stolen silver, but he admitted during the recorded interview that he had
touched the ammunition and knew the silver was stolen, and his identification was found
in the backpack containing the stolen silver. The evidence ag ainst Morrow on these
charges was strong and Morrow has failed to articulate how the delay may have harmed
any potential defense to these charges. Accordingly, the prejudice factor weighs against
finding a speedy-trial violation.
Having addressed each factor, we must now balance them to determine whether
Morrow’s right to a speedy trial was violated . In balancing the factors, Minnesota courts
have emphasized the importance of the prejudice factor. See State v. Jones , 392 N.W.2d
224, 234-36 (Minn. 1986); State v. Strobel, 921 N.W.2d 563, 573 (Minn. App. 2018), aff’d,
932 N.W.2d 303 (Minn. 2019).3 In both Jones and Strobel, the appellate courts concluded
that the first three factors weighed at least slightly in favor of the defendant, but nonetheless
determined that the defendant’s right to a speedy trial had not been violated because the
defendant did not suffer any prejudice as a result of the delay. Jones, 392 N.W.2d at 234-
36; Strobel, 921 N.W.2d at 573.
We reach the same conclusion here despite Morrow’s clear assertion of his right to
a speedy trial. Morrow was incarcerated on new, unrelated charges during the delay and
suffered no appar ent prejudice in being able to present his defense. And because the

3 The Minnesota Supreme Court granted Strobel’s petition for rev iew on an issue related
to his criminal -history score, but denied his petition for review of his speedy-trial claim.
932 N.W.2d at 306 n.4.

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reasons for the delay were largely administrative, rather than the result of a deliberate
attempt by the state to delay the trial, that factor weighs less heavily against the state.
Barker, 407 U.S. at 531, 92 S. Ct. at 2192. On the facts presented here, we conclude that
Morrow’s right to a speedy trial was not violated.
II. The district court did not abuse its discretion by denying Morrow’s motion for
a downward durational departure.

Morrow argues that the district court abused its discretion by denying his motion
for a downward durational departure and sentencing him to the mandatory minimum of 60
months in prison. Morrow was convicted of being an ineligible person in possession of
ammunition under Minn. Stat. § 624.713, subd. 1(2). Pursuant to Minn. Stat. § 609.11,
subd. 5(b) (2016), an individual convicted of violating this statute “shall be committed to
the commissioner of corrections for not less than five years.” But a distric t court may
“sentence the defendant without regard to the mandatory minimum . . . if the court finds
substantial and compelling reasons to do so.” Minn. Stat. § 609.11, subd. 8(a) (2016).
A guidelines sentence is presumed to be appropriate and the distr ict court must
impose it unless “identifiable, substantial, and compelling circumstances” justify a
downward departure. State v. Johnson, 831 N.W.2d 917, 925 (Minn. App. 2013)
(quotation omitted), review denied (Minn. Sept. 17, 2013); see also Minn. Sent. Guidelines
2.D.1 (2016). The sentencing court has “broad discretion” and an appellate court will only
reverse a sentencing court’s refusal to depart in a “rare” case. State v. Kindem, 313 N.W.2d
6, 7 (Minn. 1981). This court generally will not disturb the imposition of a presumptive
sentence when “the record shows that the sentencing court carefully evaluated all the

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testimony and information presented” before imposing a sentencing. Johnson, 831 N.W.2d
at 925 (quotation omitted). And we will ordinarily not disturb the district court’s
imposition of the presumptive guidelines sentence, even when reasons for a downward
departure exist. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).
A district court may grant a downward durational departure “if the defendant’s
conduct is significantly less serious than that typically involved in the commission of the
offense.” State v. Mattson , 376 N.W.2d 413, 415 (Minn. 1985). Unlike a dispositional
departure, the appropriateness of a durational departure depends solely on the nature of the
offense, rather than a defendant’s amenability to treatment or probation. State v. Behl, 573
N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998). We review
the district court’s refusal to depart fro m the presumptive sentence for an abuse of
discretion. Id. at 714.
With regard to Morrow’s conviction for possession of the ammunition , Morrow
argues that his conduct was significantly less serious than the typical offense because he
did not own the ammunition and only possessed it for a brief period of time. According to
evidence in the record, the ammunition was thrown to him in a bag so that he could look
at it and Mor row theoretically did not know that the bag contained ammunition until he
opened it. The evidence does not show that Morrow possessed the ammunition for any
substantial length of time.
Morrow acknowledges that Minnesota does not recognize a “fleeting poss ession”
defense to violations of Minn. Stat. § 624.713, subd. 1(2), see In re Welfare of S.J.J., 755
N.W.2d 316, 318-19 (Minn. App. 2008), but argues that the circumstances of the offense

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nonetheless minimize his culpability even if they do not absolve him . While we are
sympathetic to this argument, it is not sufficient to demonstrate an abuse of discretion by
the district court in not granting a downward durational departure. The state had requested
a “top-of-the-box” sentence of 68 months. Here, the district court imposed the mandatory
minimum sentence for this offense of 60 months and, thus, may have factored in the
severity of the offense in determining the sentence.
Morrow counters that deference is not due the district court’s sentencing decision,
because the court did not make findings on whether the offense was less serious than the
typical possession case. A district court, however, is not required to make such findings
when imposing a presumptive sentence. State v. Van Ruler , 378 N.W.2d 77, 8 0 (Minn.
App. 1985) (“Although the trial court is required to give reasons for departure, an
explanation is not required when the court considers reasons for departure but elects to
impose the presumptive sentence.”).
Moreover, we note that the district court took Morrow’s requests for downward
departures under advisement at the sentencing hearing and asked the parties for written
memoranda addressing Morrow’s requests. The court then set a second sentencing hearing
at a later date after the court had the opportunity to review the memoranda. At the start of
the second sentencing hearing, the district court stated that it had reviewed and considered
the memoranda and arguments presented by both Morrow and the state. The record thus
shows that the district court considered and evaluated the arguments and information
presented before imposing a “bottom-of-the-box” presumptive sentence.

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The final argument raised by Morrow is that the district court erred because it
considered offender -related characteristics —his criminal history and new charges —in
denying the downward durational departure. Offender -related characteristics are only
relevant in assessing the basis for a downward dispositional departure, not a durational
departure. State v. Peter, 825 N.W.2d 126, 130 (Minn. App. 2012), review denied (Minn.
Feb. 27, 2013). Based on our review of the transcript from the sentencing hearing , the
district court does not appear to have relied on the wrong factors. While the district court
discussed Morrow’s criminal history and new charges , this was only in connection with
the request for a dispositional departure. The court’s comments were made in response to
Morrow’s claim that he was amenable to probation to “turn his life around.” Accordingly,
it appears that the district court properly considered Morrow’s criminal history and the new
charges when addressing Morrow’s motion for a downward durational departure, and did
not state that it was denying the motion for a downward durational departure based on these
factors.
In short , the evidence presented does not justify treating this as that “rare case”
where reversal is appropriate. State v. Soto, 855 N.W.2d 303, 305 (Minn. 2014); Kindem,
313 N.W.2d at 7. We therefore conclude that the district court did not abuse its discretion
by denying Morrow’s motion for a downward durational departure.
Affirmed.