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This opinion is nonprecedential except as provided by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
A24-0816

State of Minnesota,
Respondent,

vs.

Kevon Dorsey,
Appellant.

Filed May 19, 2025
Affirmed
Klaphake, Judge*

Hennepin County District Court
File No. 27-CR-22-1042

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

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Bond, Presiding Judge; Reyes, Judge; and Klaphake,
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NONPRECEDENTIAL OPINION
KLAPHAKE, Judge
Appellant challenges his convictions of second-degree assault and domestic assault,
arguing that the prosecutor committed plain, reversible misconduct by (1) eliciting
vouching testimony, (2) advancing speculative arguments, and (3) misstating the evidence.
We affirm.
DECISION
Appellant Kevon Dorsey argues that the prosecutor committed misconduct at trial.
Because Dorsey did not object to the alleged misconduct , we review his claims under a
modified plain-error test. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under
that standard, Dorsey bears the initial burden to establish that the prosecutor’s misconduct
was plain error. Id. “An error is plain if it . . . contravenes case law, a rule or a standard
of conduct.” Id. (quotation omitted). If Dorsey meets that burden, the burden shifts to the
state to establish that the error did not affect Dorsey’s substantial rights. See id. The state
meets this burden if it shows that there is “no reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(quotation omitted) If the state cannot meet this burden, this court assesses “whether the
error should be addressed to ensure fairness and the integrity of the judicial proceedings.”
Id.
Vouching Testimony
Dorsey argues that the prosecutor elicited improper vouching testimony from a state
witness. Improper vouching occurs when one witness testifies that another witness is
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telling the truth or is more believable than another witness. See State v. Ferguson, 581
N.W.2d 824, 835 (Minn. 1998) (“[O]ne witness cannot vouch for or against the credibility
of another witness.”). “Prosecutors may not elicit credibility-vouching testimony from trial
witnesses.” State v. Robideau, 783 N.W.2d 390, 400 (Minn. App. 2010), rev’d on other
grounds, 796 N.W.2d 147 (Minn. 2011).
Dorsey challenges this exchange between the prosecutor and Sergeant D.K.:
PROSECUTOR: Did you ever take any action against [D.W.]
for filing a false police report?

WITNESS: No, I did not.

PROSECUTOR: And is that based on your review of the
evidence in this case?

WITNESS: Yes.

Dorsey argues that this exchange constitutes vouching because it “clearly conveyed
to the jury that [the witness] and . . . the prosecutor believed” D.W.’s version of events.
But vouching typically occurs when one witness makes an explicit statement about the
credibility of another witness. See e.g., State v . Koskela, 536 N.W.2d 625, 630 (Minn.
1995) (police officer’s testimony that he “had no doubt” a witness was truthful raised
concerns of vouching); Van Buren v. State, 556 N.W.2d 548, 550-551 (Minn. 1996) (police
officer testimony that victim told him that defendant’s wife believed the victim’s story
constituted vouching). Here, the prosecutor asked Sergeant D.K. if he based his decision
on the “evidence in this case,” not on whether he believed D.W. or found her credible.
Because the difference was clear and distinct in the prosecutor’s questions, there was no
explicit or implied vouching for D.W.’s credibility.
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Speculative argument
Dorsey next argues that the prosecutor plainly erred in their closing argument by
presenting arguments that were not supported by the evidence.
In a closing argument, the state may present “all legitimate arguments on the
evidence and may draw reasonable inferences from the evidence.” State v. Fraga, 898
N.W.2d 263, 278 (Minn. 2017) (quotation omitted). But the state may not “speculate
without a factual basis.” State v. Pearson, 775 N.W.2d 155, 163 (Minn. 2009). In
determining whether the state committed plain error in a closing argument, this court
considers “the closing argument as a whole, rather than just selective phrases or remarks
that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d
602, 607 (Minn. 1993).
In closing argument, the prosecutor addressed D.W.’s and A.S.’s reluctance to speak
with police after they were assaulted:
[D.W.] had to think to herself, “Do I say what happened
even if nobody wants me to? If I don’t tell anyone, my friend
could get hurt. But if I do tell someone, I could lose that friend
forever.”
[A.S.] had to be thinking, “Even though he hurt me,
even though he did this to me, I have to keep this secret. And I
have to do it for my boyfriend, this person that I love and care
about.”

Dorsey contends that the prosecutor’s argument was speculative because the state
presented no evidence as to what D.W. or A.S. were thinking during or after the assault,
and no expert testimony about thought processes common among assault victims. Relying
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on State v. Peltier, Dorsey characterizes the prosecutor’s arguments as “psychological
hypotheses.” See 874 N.W.2d 792, 805 (Minn. 2016).
But Peltier is distinguishable. In Peltier, the prosecutor argued in closing argument
that the defendant learned abusive behaviors from an ex-boyfriend and exhibited a trait
common to child abusers when she blamed her victim. Id. at 804. The court determined
that these arguments were improper because they were not supported by the facts in
evidence or expert testimony. Id. at 805.
Here, the prosecutor did not assert that D.W. or A.S. exhibited a trait commo n to
assault victims. Moreover, the prosecutor’s arguments were supported by the evidence.
At trial, the prosecutor asked D.W. “[w] hat was going through [her] mind” during the
assault, and she stated that she “just wanted [A.S.] to be safe.” She further testified that
she stopped talking to police because she “didn’t want to make [A.S. ] mad.” And the
state’s evidence included a text message from D.W. to A.S. that read: “[The police are]
talking to me. . . . I don’t know what to do.” This evidence supports the prosecutor’s
argument that D.W. weighed the consequences of reporting Dorsey.
Similarly, the evidence supports the argument that A.S. acted to protect Dorsey
based on their relationship. A.S. testified that she and Dorsey lived together and were
romantically involved. S he conceded at trial that, in order to protect Dorsey , she lied to
police about whether he had a gun. And two eyewitnesses contradicted her claim that
Dorsey did not assault her. Based on that evidence, it was a reasonable inference that A.S.
was motivated by her feelings to protect Dorsey.
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Dorsey also contends that the prosecutor advanced a speculative argument when he
told the jury that it “makes sense” that assault victims sometimes tell police that “nothing
happened,” because “even if [they]’re getting hurt, even if [they]’re being injured, those
feelings don’t just go away.” We discern no error here because the prosecutor did not
reference facts outside the record, nor did he assert, as a fact, that abuse victims in general
are motivated to lie based on their feelings. Rather, the prosecutor appealed to the jury’s
common sense, arguing that it “makes sense” that a person would lie to protect someone
that they care about. See State v. Bauer, 776 N.W.2d 462, 475 (Minn. App. 2009),
(“[A]ppeals to common sense are permitted.”), aff’d, 792 N.W.2d 825 (Minn. 2011);
State v. Outlaw, 748 N.W.2d 349, 359 (Minn. App. 2008), (“[A]ppeals to common sense
. . . do not constitute facts not in evidence.”), rev. denied (Minn. July 15, 2008).
Misstatement
Finally, Dorsey argues that the prosecutor intentionally misstated Sergeant D.K.’s
testimony. “It is unprofessional conduct for the prosecutor to intentionally misstate the
evidence or mislead the jury as to the inferences it may draw.” Peltier, 874 N.W.2d at 805
(quotation omitted).
On redirect-examination, Sergeant D.K. affirmed that sometimes “victims refuse to
talk to [him].” During closing argument, the prosecutor rephrased Sergeant D.K.’s
testimony as: “sometimes victims just say that nothing happened.” Even if we agreed that
the prosecutor’s misstatement was intentional, we conclude that there is no reasonable
likelihood that a misstatement so slight had a substantial effect on the jury’s verdict.

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Based on the record before us, we conclude that no plain error occurred.
Affirmed.