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This opinion is nonprecedential except as provided by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
A24-1379

State of Minnesota,
Respondent

vs.

Victor Zuniga Gonzalez,
Appellant.

Filed July 14, 2025
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CR-23-16775

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

Mary F. Moriarty, Hennepin County Attorney, Britta Nicholson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Amber S. Johnson, Johnson Criminal Defense, Minneapolis, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his conviction for first-degree criminal sexual conduct,
alleging multiple instances of unobjected-to prosecutorial misconduct. Because there was
no plain error, we affirm.
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FACTS
The Richfield Police Department received a report that appellant Victor Zuniga
Gonzalez sexually assaulted his 13-year -old cousin. Respondent State of Minnesota
charged him with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd.
1a(e) (2022). The case proceeded to a jury trial.
At trial, the cousin testified that, after she and Gonzalez went to a movie theater,
Gonzalez brought her into his apartment and sexually assaulted her. She testified that, after
the assault, she spent the night with an aunt who lived in an apartment down the hall from
Gonzalez. The cousin said that she disclosed the assault to her mother, and that she recalled
going to the hospital on three occasions for visits related to the incident. Multiple witnesses
corroborated the cousin’s testimony, including the mother, a doctor, a police officer, and a
forensic interviewer. Jurors also heard testimony that both the cousin and Gonzalez tested
positive for chlamydia. The district court admitted exhibits confirming the positive test
results. When Gonzalez presented his case, two aunts and another relative testified that
they did not recall any out-of-the-ordinary behavior by the cousin the day after the alleged
incident. Gonzalez also testified. He acknowledged bringing the cousin back to his
apartment but denied any sexual contact.
On cross-examination, Gonzalez had the following exchange with the prosecutor:
Q: Okay. So your testimony is [the cousin] is making all this
up about what happened inside your apartment?
A: (Interpreter) Yes.
Q: Why?
A: (Interpreter) I don’t know what she’s thinking. As you can
see, I am here to testify, to what I—what I did and what I saw.
. . . .
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Q: She’s just making this up for no reason?
A: (Interpreter) As I said, I do not know what—what is going
through her mind. I am here to testify to say what I did and
what I saw.
Q: Well, you’re here to tell your version of the events, right?
A: (Interpreter) Of course.

When the parties proceeded to closing argument, the prosecutor stated that the
cousin “has been nothing but consistent about what [Gonzalez] did to her. She’s been
unimpeached.” The prosecutor went on to say:
The reasonableness of her testimony, is this something
that is outlandish, unbelievable? Everything she said except
for the rape itself was corroborated by [Gonzalez] himself.
This isn’t an outlandish story. He got her alone. He’s not
willing to admit that he raped her, but the only thing that’s
unbelievable about what she says happened is that some adult
would do this to a child. Unfortunately, that’s the world we
live in. It happens all the time. People do that to kids. He did
that to [the cousin].

She has no motive to lie to you about what he did, none.
. . . [Gonzalez] himself can’t even come up with a reason as to
why she would make this up about him. None of his witnesses
could think of a reason.

When defense counsel presented closing argument, it sought to undermine the
credibility of the cousin and the reliability of the state’s evidence. First, defense counsel
emphasized the severity of the allegation : “The allegation is a Chernobyl-style nuclear
meltdown” that “hits you in the chest.” Second, he highlighted that, during her testimony,
the cousin struggled to remember whether she had stayed overnight with her aunts in the
building before the incident: “We all forget things. But when she’s not remembering if she
stayed over at her aunts’ house, people that she’s known all of her life, it’s difficult to
believe that that is just something that just fell out of [her] head and [she] can’t figure it
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out.” Third, defense counsel noted that family members did not notice any problems with
her the day after the alleged incident. Fourth, defense counsel stated that the cousin
struggled to recall who exactly was involved in her multiple trips to the hospital and that
she could not remember her symptoms during those visits.
On rebuttal, the prosecutor stated:
Who cares how many times she spent the night at her
aunt’s house before [Gonzalez] raped her? Who cares how
long they lived together? No offense to the defense, this case
is about July 1st of 2023 and whether or not the defendant
sexually assaulted her, not about how many times she spent the
night with her cousins, not about how long they lived together,
none of that.

Regarding defense counsel’s statements about the hospital visits, the prosecutor
stated that “it’s easy for [the cousin] through an interpreter to not understand [defense
counsel’s] questions about the exact day, [and] the exact doctor she talked to.” Regardless,
the prosecutor again added, “no offense to the defense, who cares?”
To close rebuttal, the prosecutor stated:
To suggest that he’s just that unlucky that [the cousin],
for no reason, with no motivation, decided to lie about him
raping her, say that it occurred on the one night that he admits
that they were alone together, and they both just happen to have
chlamydia[,] . . . is not reasonable doubt. That is fanciful. It’s
implausible, and it is not supported by the evidence.

After deliberation, the jury found Gonzalez guilty. The district court sentenced
Gonzalez to 144 months in prison with conditional release after confinement. This appeal
followed.
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DECISION
On appeal, Gonzalez argues that he is entitled to a new trial because the prosecutor
committed misconduct during cross-examination and closing argument. He argues that the
prosecutor improperly (1) shifted the burden of proof; (2) expressed a personal opinion on
his credibility; (3) belittled the defense theory and attacked defense counsel; and
(4) appealed to the passions and prejudices of the jury.
“The overarching concern regarding prosecutorial misconduct . . . is that [the]
misconduct may deny the defendant’s right to a fair trial.” State v. Ramey, 721 N.W.2d
294, 30 0 (Minn. 2006). Prosecutors are ministers of justice who “have an affirmative
obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence
of guilt.” Id.
When, as is the case here, a defendant “fail[s] to object at trial to the prosecutor’s
alleged misconduct, we review the issue under a modified plain-error standard.” State v.
Johnson, 915 N.W.2d 740, 746 (Minn. 2018). Plain error requires “(1) [an] error; (2) that
is plain; and (3) [that] . . . affect[s] substantial rights.” State v. Griller, 583 N.W.2d 736,
740 (Minn. 1998). “An error is plain if it is clear or obvious, which is typically established
if the error contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894
N.W.2d 782, 787 (Minn. 2017) (quotations omitted). Plain error affects substantial rights
when it is “prejudicial” and impacts “the outcome of the case.” State v. Sontoya, 788
N.W.2d 868, 872 (Minn. 2010). Modified plain-error review differs from traditional plain-
error review because, if the defendant shows an error that is plain, the burden shifts to the
state to demonstrate “no reasonable likelihood that the absence of the misconduct in
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question would have had a significant effect on the verdict.” See Ramey, 721 N.W.2d at
302 (quotation omitted). Whether the state met its burden depends on factors like the
strength of the state’s evidence, the error’s pervasiveness, and whether the defendant had
an opportunity to rebut the error. State v. Davis, 735 N.W.2d. 674, 682 (Minn. 2007).
However, even if we identify a plain error that affects substantial rights, we reverse
only if it is necessary to “address the error to ensure fairness and the integrity of the judicial
proceedings.” Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004) (quotation omitted).
Shifting burden of proof
First, Gonzalez argues that the prosecutor improperly shifted the burden of proof
during cross-examination and closing argument. He contends the prosecutor committed
misconduct on cross-examination by asking him: “She’s just making this up for no
reason?” and “Well, you’re here to tell your version of the events, right?” He also contends
the prosecutor committed misconduct during closing argument by stating: “[Gonzalez]
himself can’t even come up with a reason as to why she would make this up about him.
None of his witnesses could think of a reason.” Gonzalez argues that these statements
erroneously implied that he had the burden to prove his innocence.
“Misstatements of the burden of proof are highly improper and would, if
demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294, 302
(Minn. 2000). However, “a prosecutor’s comment on the lack of evidence supporting a
defense theory does not improperly shift the burden,” State v. McDaniel, 777 N.W.2d 739,
750 (Minn. 2010), and a prosecutor “may argue that particular witnesses were or were not
credible,” State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003).
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In State v. Fields, for example, the Minnesota Supreme Court rejected the argument
that the prosecutor improperly shifted the burden of proof by suggesting to the jury that the
defendant “could not explain why [the victim] would lie about . . . rape.” 730 N.W.2d 777,
785 (Minn. 2007). The supreme court concluded that the prosecutor’s statement did not
amount to misconduct because “the prosecutor raised the issue of motive for [the victim]
to lie in the context of credibility” and the defendant “fail[ed] to point to any explicit
misstatement of the burden of proof.” Id. at 786.
Here, when the prosecutor made the challenged statements, he sought to cast doubt
on Gonzalez’s credibility and his theory that the cousin fabricated her allegations.
Specifically, on cross-examination, the prosecutor asked: “So your testimony is [the
cousin] is making all this up about what happened inside your apartment?” Gonzalez
responded “Yes,” and the prosecutor then asked whether she did so for “no reason,” to
which Gonzalez responded “I do not know. . . . I am here to testify to say what I did and
what I saw.” Consistent with this exchange, the prosecutor stated during closing argument:
“[Gonzalez] himself can’t come up with a reason as to why she would make this up,” nor
could any of his witnesses. Because the prosecutor permissibly cast doubt on Gonzalez’s
credibility and theory of the case, and did not explicitly misstate the burden proof, we do
not discern any plain error.
Expressing personal opinion on credibility
Second, Gonzalez argues that the prosecutor improperly expressed a personal
opinion on his credibility during cross-examination. Gonzalez again relies on the
prosecutor’s statement: “Well, you’re here to tell your version of the events, right?” He
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argues that, when the prosecutor asked this question, he implicitly expressed the opinion
that Gonzalez was lying and that “his version of the facts is not the truth.”
Prosecutors commit misconduct by giving their “own opinion about the credibility
of a witness.” State v. Washington, 725 N.W.2d 125, 134 (Minn. App. 2006), rev. denied
(Minn. Mar. 20, 2007). A prosecutor gives a personal opinion about credibility by, without
a basis in the record, suggesting that a defendant is not being truthful. Id. However, no
such misconduct occurs when a prosecutor comments upon credibility by analyzing the
evidence. State v. Wright, 719 N.W.2d 910, 918-19 (Minn. 2006).
Here, the challenged statements occurred in a context where Gonzalez responded
“Yes” to the prosecutor asking whether the cousin made up “what happened inside your
apartment.” Eventually, the prosecutor followed up with the challenged statement: “Well,
you’re here to tell your version of the events, right?” To the extent the prosecutor implied
that Gonzalez was not being truthful , the prosecutor did so in response to Gonzalez
asserting that the cousin was not being truthful, and to help show that such a theory was
not credible and contradicted much of the evidence in the record. We conclude that the
prosecutor did not improperly comment on Gonzalez’s credibility.
Belittling the defense theory and attacking defense counsel
Third, Gonzalez argues that the prosecutor belittled the defense theory and
personally attacked defense counsel during the rebuttal portion of closing argument.
Gonzalez focuses on the following statement: “Who cares how many times she spent the
night at her aunt’s house before the defendant raped her? Who cares how long they lived
together? No offense to the defense, this case is about July 1st of 2023 and whether or not
9
[Gonzalez] sexually assaulted her.” In addition, he focuses on the prosecutor’s statement
that it was understandable that the cousin could not recall “the exact day, [and] the doctor
she talked to,” but regardless, “no offense to the defense, who cares?” Finally, Gonzalez
focuses on the prosecutor’s statement that the notion the cousin made up the allegations
was “fanciful” and “implausible.”
A prosecutor may “vigorously argue [the] case, including during closing
arguments,” but “should not disparage defense counsel personally or belittle the defense,
either in the abstract or by suggesting that the defendant raised the defense because it was
the only one with any hope for success.” State v. Davis, 982 N.W.2d 716, 726 (Minn.
2022) (quotations omitted). However, no misconduct occurs when the challenged
statements, “in context, were about the merits of potential defenses and an actual defense
in closing argument,” or were “about the evidence.” Id. at 727.
Here, defense counsel stated during closing argument that the cousin had trouble
remembering whether she had stayed overnight before with her aunt and the details of her
medical visits. When the prosecutor used the phrases “no offense” and “who cares,” he
rebutted those statements by refocusing the case on the events of the alleged incident itself.
And when the prosecutor described the theory that the allegations were false as “fanciful”
or “implausible,” he did so within the context of emphasizing the strength of the evidence
in the record, noting that Gonzalez and the cousin were alone on the night of the incident
and that they both tested positive for chlamydia. We conclude that the prosecutor did not
improperly belittle the defense theory or attack defense counsel.
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Appealing to the passions and prejudices of the jury
Fourth, Gonzalez argues that the prosecutor made statements during closing
argument that improperly appealed to the jury’s passions and prejudices. Specifically,
Gonzalez points to the prosecutor’s statement that “the only thing that’s unbelievable about
what [the cousin] says happened is that some adult would do this to a child. Unfortunately,
that’s the world we live in. It happens all the time. People do that to kids. He did that to
[the cousin].”
“A prosecutor must avoid inflaming the jury’s passions and prejudices against the
defendant.” State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (quotation omitted).
Nevertheless, a prosecutor has some flexibility to render arguments that “might have a
tendency to evoke sympathy,” if the purpose for doing so is to counter anticipated
arguments from defense. State v. Carter, 289 N.W.2d 454, 455 (Minn. 1979).
Here, in the challenged statement, the prosecutor described the general reality that
child sexual assault does occur. Later, when defense counsel presented closing argument,
it questioned the truth of the allegations based on details that were ancillary to the
allegations themselves and characterized the allegations as “a Chernobyl-style nuclear
meltdown” that “hits you in the chest.” Because the prosecutor correctly anticipated that
defense counsel would attack the cousin’s credibility and emphasize the incendiary nature
of the allegations, we conclude that the prosecutor did not improperly inflame the passions
and prejudices of the jury by stating that child sexual assault does in fact occur.
Gonzalez also argues that by using a “we” statement, the prosecutor improperly
aligned himself with the jury: “[T]he only thing that’s unbelievable about what [the cousin]
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says happened is that some adult would do this to a child. Unfortunately, that’s the world
we live in.” (Emphasis added.)
“[A] prosecutor is not a member of the jury, so to use ‘we’ and ‘us’ is inappropriate
and may be an effort to appeal to the jury’s passions.” State v. Mayhorn, 720 N.W.2d 776,
790 (Minn. 2006). In Mayhorn, a prosecutor said about the defendant: “This is kind of
foreign for all of us, I believe, because we’re not really accustomed to this drug world and
drug dealing.” Id. at 789. On appeal, the Minnesota Supreme Court determined that the
statement was misconduct because a prosecutor cannot describe himself “and the jury as a
group of which the defendant is not a part.” Id. at 789-90. But it is not misconduct when
a “we” statement, in context, “does not necessarily exclude the defendant because the ‘we’
could reasonably be interpreted . . . to refer to everybody who was in court when the
evidence was presented.” Nunn v. State, 753 N.W.2d 657, 663 (Minn. 2008).
Here, in describing a world where child sexual assault occurs, the prosecutor was
not distinguishing between a world in which the defendant lives and a world in which the
prosecutor and jury live. Rather, the prosecutor was describing a general reality in a world
in which everyone lives. Therefore, we conclude the prosecutor did not improperly align
himself with the jury through a “we” statement.
Because Gonzalez fails to show misconduct by the prosecutor, we need not consider
whether the state met its burden to demonstrate there was “no reasonable likelihood that
the absence of the misconduct in question would have had a significant effect on the
verdict,” see Ramey, 721 N.W.2d at 302 (quotation omitted), or whether to reverse in order
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“to ensure fairness and the integrity of the judicial proceedings,” Bernhardt, 684 N.W.2d
at 475 (quotation omitted).
Affirmed.