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This opinion is nonprecedential except as provided by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
A21-0848

State of Minnesota,
Respondent,

vs.

Aaron Morris Swenson,
Appellant.

Filed June 20, 2022
Affirmed in part, reversed in part, and remanded; motion granted
Bryan, Judge

Redwood County District Court
File No. 64-CR-20-591

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

Jenna M. Peterson, Redwood County Attorney, Travis J. Smith, Special Assistant County
Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Pres iding Judge; Jesson, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from a judgment of conviction, appellant argues that his
conviction should be reversed and the remaining, unadj udicated counts of conviction be
dismissed because the district court violated his constitutional right to a speedy trial.
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Alternatively, appellant argues that his c onviction must be reversed for insufficient
evidence. We conclude that the district court did not violate appellant’s speedy trial rights.
However, because we conclude that the evid ence is insufficient to support the jury’s
finding that appellant inflicted great bodily harm, we reverse the conviction and remand
for further proceedings regardi ng the unadjudicated counts of conviction. We also grant
the state’s motion to strike portions of appellant’s brief.
FACTS
On August 11, 2020, respondent State of Minnesota charged appellant Aaron
Swenson with second-deg ree assault, fifth-degree assault, and threats of violence. On
October 19, 2020, the state amended its complaint to remove the threats-of-violence charge
and to add one count of first-degree assau lt and one count of third-degree assault.
Swenson’s attorney made requ ests for a speedy trial at h earings on August 31, 2020;
October 5, 2020; October 23, 2020; October 31, 2020; and November 12, 2020.
Swenson’s jury trial was originally sche duled for November 3, 2020. In early
November 2020, the district court rescheduled Swenson’s jury trial to December 2, 2020.
The district court found good cause to continue the trial because a critical witness exhibited
COVID-19 symptoms. On December 4, 2020, the district court postponed Swenson’s jury
trial a second time, this time until February 10, 2021, pursuant to the Minnesota Supreme
Court Chief Justice’s November 20, 2020 order 1 suspending criminal jury trials until

1 In response to the COVID-19 pandemic, jury trials were suspe nded until February 1,
2021. Order Governing the Continuing Operations of the Minnesota Judicial Branch, No.
ADM20-8001, at 2 (Nov. 20, 2020).
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February 1, 2021. On February 10, 2021, the district court postponed Swenson’s jury trial
a third time, rescheduling the trial for February 24, 2021. This third continuance occurred
because Swenson’s defense counsel was exhi biting COVID-19 symptoms. On February
24, 2021, jury selection began for Swenson’s jury trial. Before the trial itself could begin,
however, the district court issued a fourth continuance because one of the state’s witnesses
was hospitalized. The trial began on March 10, 2021.
The three-day trial included testimony fro m Swenson; Swenson’ s mother, L.A.J.;
the victim, S.A.J.; L.A.J.’s brother-in-law, D.G.E.; the physician who treated S.A.J.; and
two Redwood County sheriff’s officers. According to th e testimony of S.A.J., the
following events occurred. In August 2020, S.A.J. went fishing with D.G.E. After fishing
along the rocks of a river located within th e Lower Sioux Indian Community for around
half an hour, Swenson arrived. S.A.J. was swimming in the water when Swenson put him
in a chokehold until S.A. J. become unconscious. S.A.J. regained consciousness on the
rocks of the riverbank, having been pulled out of the water by Swenson. After S.A.J.
smoked a cigarette, Swenson then demanded that S.A.J. get b ack into the water. When
S.A.J. refused, Swenson pulled out a serrated steak knife and threatened S.A.J. S.A.J. then
went back into the river where Swenson chok ed him a second time before pulling S.A.J.
onto the shore again. S.A.J. saw police officers enter the riverbank area and begin speaking
with Swenson. S.A.J. was taken to the hospital, where he was treated by a physician.
According to the physician’s testimony, S.A.J. had no identifiable bruising, but
there were “[two] tender points” on his neck. The physician further noted that he observed
S.A.J.’s heart rate was elevated. The physician testified that a brai n scan of S.A.J. was
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normal and explained what potential injuries a person could experience as a result of being
choked or held under water.
D.G.E. witnessed the altercat ion, spoke to police at th e time of the incident, and
testified at trial. He stated that he planned to go fishing w ith S.A.J. that morning. About
forty minutes after D.G.E. and S.A.J. began fishing, Swenson arrived. D.G.E. also testified
that he heard splashing and saw Swenson w ith his arm around S.A.J.’s neck. D.G.E.
hollered at Swenson to leave S.A.J. alone. D. G.E. then left to get help from his sister,
L.A.J. During his testimony, D.G.E. was asked to reconcile his testimony with conflicting
statements that he made to the police. For instance, D.G.E. told police that he saw Swenson
holding a knife, but at trial, D.G.E. did not remember seei ng a knife. Instead, D.G.E.
testified that he saw Swenson holding something that could have been Swenson’s glasses.
L.A.J. testified that her brother D.G.E. went fishing with S.A.J. At some point that
day, D.G.E. returned to the house where L.A. J. was and said that there was a fight going
on by the river’s edge. L.A.J. was immediat ely concerned and grabbed the phone to call
911. The state introduced th e 911 call and played it for the jury during L.A.J.’s direct
examination. In the call, L.A.J. told the dispatcher “to get to the river as fast as you can.”
The state also inquired about D.G.E.’s demeanor and L.A.J.’s reason for urgency that day.
Swenson also testified at trial. Swenson testified that he, S.A.J., and D.G.E. planned
to fish together that day. While there, S.A.J. was intoxicated from alcohol, belligerent, and
confrontational. Swenson tes tified that he and S.A.J. be gan splashing each other and
pushing each other in the water. Swenson denied that S.A.J. lost consciousness and denied
fighting with S.A.J. Swenson also denied holding S.A.J. underwater and stated that he did
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not possess a knife that day. Instead, Swen son stated that he was holding his reading
glasses and a cell phone while speaking with S.A.J.
The jury found Swenson guilty of all count s, including first-degree assault. The
district court adjudicated the conviction of first-degree assault, and sentenced Swenson to
an executed term of imprisonment of 161 mo nths. The district court did not formally
adjudicate the convictions on the remaining three counts. Swenson appeals.
DECISION
I. Speedy Trial
Swenson argues that his conviction must be overturned and the remaining counts
dismissed because of the delay in bringing him to trial. We conclude that based on the
applicable factors, Swenson’s constitutional rights to a speedy trial were not violated.
The federal and Minnesota constitutions provide state criminal defendants the right
to a speedy trial. U.S. Const. amends. VI, XI V; Minn. Const. art. I, § 6. The Minnesota
rule of criminal procedure providing for a speedy trial states, in relevant part:
A defendant must be tried as soon as possible after entry of a
plea other than guilty. On demand of any party after entry of
such plea, the trial must start within 60 days unless the court
finds good cause for a later trial date. Unless exigent
circumstances exist, if trial does not start within 120 days from
the date the plea other than guilty is entered and the demand is
made, the defendant must be released under any nonmonetary
conditions the court orders under Rule 6.01, subd. 1.

Minn. R. Crim. P. 11.09(b).
To determine whether a delay in a case violates a person’s speedy trial rights,
reviewing courts use the balancing test set forth by the United States Supreme Court in
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Barker v. Wingo , 407 U.S. 514 (1972). State v. Windish , 590 N.W.2d 311, 315 (Minn.
1999). This test requires courts to cons ider the following fact ors, known as the Barker
factors, to determine whether a violation occu rred: “(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 defendant.” Id.; Barker, 407 U.S. at 530-33. A
60-day delay is presumptivel y prejudicial and requires th e weighing of the remaining
factors. Windish, 590 N.W.2d at 315-16. None of these factors alone is “either a necessary
or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather,
they are related factors and must be considered together with such other circumstances as
may be relevant.” Barker, 407 U.S. at 533. Appellate courts review alleged violations of
a defendant’s constitutional rights to a speedy trial de novo. State v. Griffin, 760 N.W.2d
336, 339 (Minn. App. 2009).
A. The length of the delay
“A defendant must be tried as soon as possible after entry of a plea other than guilty
. . . . [T]he trial must start within 60 days unless the court finds good cause for a later trial
date.” Minn. R. Crim. P. 11.09(b). “[D]el ays beyond the 60-day limit simp ly raise the
presumption that a violation has occurred and require the trial court to conduct a further
inquiry to determine if there has been a violation of the defendant’s right to a speedy trial.”
State v. Friberg, 435 N.W.2d 509, 513 (Minn. 1989).
Pursuant to rule 11, the 60-day period of time begins when a defendant enters a not
guilty plea. Minn. R. Crim. P. 11.09(b); see also, e.g., State v. Mikell, 960 N.W.2d 230,
250 n.14 (Minn. 2021). Swenson pleaded not guilty and asserted his speedy trial rights on
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October 5, 2020. His trial began on March 10, 2021. There was, therefore, a 156-day
delay in bringing Swenson’s case to trial. Because this figure exceeds 60 days, we must
consider the other Barker factors.
B. The reason for the delay
If the state caused the delay, it may have violated a defendant’s right to speedy trial,
depending on the particular reasons for the delay. Mikell, 960 N.W.2d at 251. Multiple
factors, many of which were related to the COVID-19 pandemic, caused the delay here.
We identify the following four distinct periods of delay in this case: (1) November 4, 2020
to December 2, 2020, which resulted from th e unavoidable unavailability of S.A.J.’s
treating physician who was experiencing COVID-19 symptoms at the time of the scheduled
trial; (2) December 2, 2020 to February 10, 2021, which resulted from the provisions of
Order No. ADM20-8001 preventing the commencem ent of jury trials; (3) February 10,
2021 to February 24, 2021, which resulted from the unavailability of Swenson’s attorney
who was experiencing COVID-19 symptoms at the time of the scheduled trial; and
(4) February 24, 2020 to March 10, 20 20, which resulted from the unavoidable
unavailability of L.A.J., who was hospitalized at the time of the scheduled trial.
We cannot attribute the first, second, or third delays to the state. State v. Jackson,
968 N.W.2d 55, 61 (Minn. App. 2021), rev. granted (Minn. Jan. 18, 2022) (finding that
delays caused by the COVID-19 pandemic are not attributable to the state). We also
conclude that there was good cause for the fourth delay because “[n]ormally, the
unavailability of a witness constitutes good cause for delay,” when the state acts diligently.
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Windish, 590 N.W.2d at 317.2 Importantly, Swenson does not argue that the state acted in
bad faith or failed to act diligen tly to secure L.A.J.’s appear ance. For these reasons, this
factor weighs in the state’s favor.
C. Assertion of Swenson’s right to a speedy trial
We next determine whether Swenson asserted his rights to a speedy trial. In
evaluating this factor, the force and frequency of the defendant’s demand for a speedy trial
must be considered. Friberg, 435 N.W.2d at 515. Swenso n’s attorney noted his speedy
trial demand on the record at the hearings on October 5, 2020; October 23, 2020; October
31,
2020; and November 12, 2020. This factor weighs in Swenson’s favor.
D. Prejudice
Under the final factor, we consider whether the delay prejudiced Swenson’s
interests, including pretrial incarceration, anxiety, and ability to prepare a defense:
Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect. This Co urt has identified three such
interests: (i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired. Of these, the
most serious is the last, becau se the inability of a defendant
adequately to prepare his case skews the fairness of the entire
system.

Barker, 407 U.S. at 532.

2 Without asserting error, Swenson appears to disagree with the characterization of L.A.J.
as a “material witness.” We discern no erro r and conclude that L.A.J. was a material
witness because her testimony corroborated portio ns of S.A.J.’s testimony, contradicted
portions of Swenson’s testimony, supplied information regarding D.G.E.’s demeanor and
sense of urgency, and provided foundation and context for the 911 call.
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In this case, Swenson argues that he wa s prejudiced by the de lay because he had
increased exposure to CO VID-19 and anxiety about contracting COVID-19 while
incarcerated prior to the start of the trial. 3 Swenson’s argument is unpersuasive because
Swenson’s incarceration was not solely related to this case. Instead, Swenson was also
held in custody on a separate and unrelated matter. Indeed, even af ter the district court
released Swenson in this case on February 25, 2021, he remained in custody. The first two
interests listed in Barker—preventing oppressive pretrial incarceration and minimizing
anxiety and concern of the accused—are not rele vant when a defendant is in custody on
another matter, State v. Taylor, 869 N.W.2d 1, 20 (Minn. 2015), and Swenson makes no
argument regarding the third interest—wheth er the defense was impaired. For these
reasons, the final factor weighs strongly in favor of the state.
In sum, after considering and balancing each of the Barker factors, we conclude that
the district court did not violate Swenson’s constitutional right to a speedy trial.
II. Sufficiency of the Evidence
Swenson next argues that his conviction for first-degree assault must be reversed
because S.A.J. did not actually sustain great bodily harm. Because the evidence of S.A.J.’s
actual injuries cannot sustain a finding that he experienced great bodily harm, we reverse
Swenson’s conviction and remand for further proceedings on the unadjudicated counts.

3 In its brief, the state moves this court to strike footnotes 9 and 10 of Swenson’s brief,
which reference news articles covering COVID-19. Because Swenson references material
outside the court record, we grant the state’s motion to strike footnotes 9 and 10. Minn. R.
Civ. App. P. 110.01; Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); Stageberg v.
Stageberg, 695 N.W.2d 609, 613 (Minn. App. 2005), rev. denied (Minn. July 19, 2005).
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To assess whether sufficient evidence suppo rts a conviction, this court “carefully
examine[s] the record to determine whether the facts and th e 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. Griffin, 887
N.W.2d 257, 263 (Minn. 2016) (quotation omitted). When di rect evidence supports an
element of an offense, this court’s review is limited “to a painstaking analysis of the record
to determine whether the evid ence, when viewed in the li ght most favorable to the
conviction, was sufficient to permit the jurors to reach the verdict which they did.” State
v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (quotation omitted).
To convict a person of first-degree assau lt, the state must prove that the person
“assault[ed] another and inflict[ed] great bodily harm.” Minn. Stat. § 609.221, subd. 1
(2020). “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 func tion of any bodily memb er or organ or other
serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2020). Whether an injury constitutes
great bodily harm is a question for the jury. State v. Moore, 699 N.W.2d 733, 737 (Minn.
2005). When determin ing whether the victim suffered great bodily harm, a court must
“focus on the injury to the victim rather than the actions of the assailant,” State v. Gerald,
486 N.W.2d 799, 802 (Minn. App. 1992), and mu st consider the totality of the victim’s
injuries, State v. Dye, 871 N.W.2d 916, 922 (Minn. App. 2015).
In this case, the state presented the tes timony of S.A.J.’s tr eating physician, who
testified generally regarding injuries that can theoretically occur when someone is choked
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or held under water, such as bone fractures, neurological issues, artery damage, internal
bleeding, and death. The treating physician also testified specifically regarding the injuries
that S.A.J. actually sustained, stating that S.A.J. experienced tender spots on his neck, an
elevated pulse, and elevated temperature. Further, the physician testified that S.A.J.’s brain
scan was normal. In addition, S.A.J. testified that he vo mited water on the riverbed and
that he experienced lapses of consciousness. The parties do not dispute that this testimony
is insufficient to establish th at S.A.J. actually suffered grea t bodily harm. Instead, the
dispute presented relates to whether ev idence that Swenson’s actions had the potential to
cause S.A.J. great bodily harm can sustain a conviction of first-degree assault.
We are bound by precedent re quiring evidence of actual great bodily harm, not
merely the potential for great bodily harm. E.g., Gerald, 486 N.W.2d at 802; Dye, 871
N.W.2d at 921-22. In Gerald, this court determined that two knife cuts on the back of the
victim’s neck and near his ear did not amount to great bodily harm. 486 N.W.2d at 802.
The state argued that Gerald inflicted great bodily harm because one of the wounds was
near a major artery and had the potential to cause death if it had injured the artery. Id. This
court rejected that argument, reasoning that “the injury itself must be life-threatening” and
that the statutory definition of great bodily harm is not satisfied if the injury “could have
been more serious.” Id. Similarly, in Dye, this court determined that a victim who was
shot in the abdomen did not suffer great bodily harm because the bullet did not injure any
major organs. 871 N.W.2d at 922. This court rejected the state’s argument that the bullet
could have injured “critical body parts” and caused the victim’s death, focusing on actual
injuries not theoretical ones. Id. at 921-22.
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Here, the conviction of first-degree assau lt rests on evidence of potential injuries,
which cannot sustain a finding that Swenson in flicted great bodily harm. Therefore, we
reverse Swenson’s conviction of first-degree assault and rema nd to the district court for
further proceedings regarding the jury’s guilt y verdicts on the rema ining, unadjudicated
counts of conviction.
Affirmed in part, reversed in part, and remanded.