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This opinion is nonprecedential except as provided by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
A25-0331

State of Minnesota,
Respondent,

vs.

Miguel Angel Rodriguez,
Appellant.

Filed December 29, 2025
Affirmed
Larkin, Judge

Nobles County District Court
File No. 53-CR-24-106

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

Braden M. Hoefert, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Larkin, 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NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges his conviction of fifth-degree criminal sexual conduct, arguing
that the district court impermissibly inferred that he tailored his trial testimony and created
an appearance of partiality. He also argues that the prosecutor engaged in misconduct
during closing arguments. We affirm.
FACTS
A grand jury indicted appellant Miguel Angel Rodriguez on one count of fifth -
degree criminal sexual conduct under Minn. Stat. § 609.3451, subd. 1 (2022), alleging that
he “engaged in nonconsensual sexual penetration.”1 The matter proceeded to a court trial.
At trial, the victim, N.R., testified that she had known Rodriguez for approximately
seven years and acknowledged that she had a sexual relationship with Rodriguez “years
ago.” N.R. testified that on the day in question, Rodriguez came to her apartment, and the
two conversed in the living room while N.R. was on the couch. N.R. had recently had foot
surgery. She still had an open wound, she was unable to put weight on her foot , her foot
was in a walking boot, and she used a wheelchair and crutches for mob ility. At the time
of the offense, N.R.’s eight -year-old daughter was sleeping in N.R.’s room, and N.R’s
thirteen- or fourteen-year-old sister was sleeping in another room.

1 The legislature recently created the crime of fifth-degree criminal sexual conduct based
on nonconsensual sexual penetration. 2021 Minn. Laws 1st Spec. Sess. ch. 11, art. 4, § 20,
at 2049.
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N.R. testified that Rodriguez got on top of her and that she knew that Rodriguez
wanted to have sex with her . N.R. testified that, although she tried, she could not push
Rodriguez off of her and that she told him “No” multiple times. N.R. testified that
Rodriguez penetrated her vagina with his penis despite her telling him multiple times that
she did not want to have sex. N.R. explained that she did not want to wake her daughter
and sister because they “would have been scared,” so she did not scream during the sexual
assault.
The next day, N.R. contacted Rodriguez through social media and asked him,
“[W]hy did you do this to me? You know I didn’t want to.” N.R. told Rodriguez that she
had a nightmare about demons raping her. Rodriguez asked her if he was the demon, and
she said, “yes.” Rodriguez told N.R. that he did not rape her. Later, while at an
appointment regarding her foot, N.R. told a medical assistant about the sexual assault. The
medical assistant encouraged N.R. to report the assault, and N.R. contacted the police.
A police officer called Rodriguez to discuss N.R.’s accusation, and footage from the
officer’s body camera was admitted as evidence at trial. In the brief recorded conversation,
Rodriguez said he “kn [e]w the situation” that the officer was referring to, but the
conversation ended when Rodriguez requested an attorney.
At trial, Rodriguez testified that he and N.R. had a prior sexual relationship, with
the most recent sexual encounter occurring approximately one year before the day in
question. He testified that he went to N.R.’s apartment to say goodbye because he was
planning to move. He denied that he intended to have sex with N.R. He testified that they
talked for around five minutes and that he then began to touch N.R. He testified that he
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performed consensual oral sex on N.R. and “got on top of her ,” but he could not get an
erection. He also testified that he unsuccessfully attempted vaginal penetration with his
penis in two positions: while on top of N.R. and from behind her.
When asked to clarify what he meant when he said he performed oral sex on N.R.,
Rodriguez said he put his mouth on her vaginal area. When asked, “did it go inside?” he
replied, “Yes.” But Rodriguez testified that his penis did not go inside N.R.’s vagina. He
testified that he asked N.R. to perform oral sex on him, and she refused. On cross -
examination, the prosecutor asked Rodriguez if his sexual encounter with N.R. involved
“some degree of penetration” with his mouth or hand “enter[ing] her vaginal opening.” He
responded, “Yes.” The prosecutor asked, “So what [we] don’t agree on is whether there
was consent, right?” Rodriguez responded, “Agree.”
In its oral closing argument at trial, the state argued that Rodriguez “admitted to
penetrating [N.R.] with his mouth or with his hands,” that “[t]he only element that’s in
question is consent,” and that “[t]he parties agree that there was sexual penetration.” The
district court allowed Rodriquez to submit his closing argument in writing, after the trial.
In his written closing argument, Rodriguez conceded that “consent is the only issue.”
The district court found Rodriguez guilty and sentenced him to a stayed 36 -month
prison term.
Rodriguez appeals.
DECISION
I.
Rodriguez contends that the district court improperly inferred that he had tailored
his testimony based on police reports and grand jury records that he received before trial.
Rodriguez argues that the district court impermissibly based its credibility determination
on his exercise of his discovery and confrontation rights. Specifically, Rodriguez
complains that in finding his testimony less credible than N.R.’s, the district court remarked
that “[Rodriguez] provided his first statement regarding the events . . . at the trial. His
testimony was after discovery of the police reports and grand jury testimony was provided
by the State.”
In State v. Swanson , the supreme court addressed whether “[t] he state’s questions
and arguments implying that defendant used his constitutional right to confront witnesses
against him to tailor his testimony were error .” 707 N.W.2d 645, 650 (Minn. 2006) .
During rebuttal closing argument in Swanson, the prosecutor commented on the fact that
the defendant had listened to the state’s evidence before testifying and asserted that the
defendant tailored his testimony to defend against the inculpatory evidence. Id. at 656-57.
In addressing the alleged error, the supreme court noted that “[t]he United States Supreme
Court has held that such comments do not violate a defendant ’s rights under the federal
constitution,” but “[t]he Court . . . did not discourage other jurisdictions from considering
the question as a matter to be decided under state law.” Id. at 657.
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The Swanson court stated, “One can reasonably argue that, in some cases, such
comments by the state are merely a statement of the obvious and therefore should be
permitted.” Id. However, the Swanson court held:
We believe, however, that although not constitutionally
required, the better rule is that the prosecution cannot use a
defendant’s exercise of his right of confrontation to impeach
the credibility of his testimony, at least in the absence of
evidence that the defendant has tailored his testimony to fit the
state’s case. Without specific evidence of tailoring, such
questions and comments by the prosecution imply that all
defendants are less believable simply as a result of exercising
the right of confrontat ion. The exercise of this constitutional
right, by itself, is not evidence of guilt. Because the record
contains neither evidence of tailoring nor any other reason for
the state ’s argument, the prosecution ’s questions and
comments were error.

Id. at 657-58 (emphasis added) (footnote omitted).

One year later, in State v. Davis, the supreme court reiterated the Swanson rule:
Absent evidence in the record giving rise to an inference
that a criminal defendant has tailored his or her testimony to fit
the evidence, a prosecutor commits misconduct by questioning
the defendant in a manner that implies the defendant ’s
testimony is not credible because the defendant was present at
trial and had the opportunity to see the evidence before
testifying.

735 N.W.2d 674, 676 (Minn. 2007) ; see also State v. Leutschaft , 759 N.W.2d 414, 41 6,
426 (Minn. App. 2009) (holding that a prosecutor’s unsubstantiated suggestion that the
defendant tailored his trial testimony violates the defendant’s confrontation and due -
process rights, but questions about tailoring may be proper if the facts show that
possibility), rev. denied (Minn. Mar. 17, 2009).
7
Swanson and Davis establish a rule that applies to prosecutors at criminal trials. See
Swanson, 707 N.W.2d at 657 (stating that “the better rule is that the prosecution cannot use
a defendant ’s exercise of his right of confrontation to impeach the credibility of his
testimony”); Davis, 735 N.W.2d at 676 (stating that a prosecutor commits misconduct by
questioning the defendant in a manner that implies tailored testimony); Leutschaft, 759
N.W.2d at 419 ( “For future guidance, prosecutors must adhere to the Swanson rule and
their failure to do so surely will be in the realm of prosecutorial misconduct rather than
prosecutorial error.”).
Rodriguez does not argue that the prosecutor in this case asserted or implied that his
testimony was tailored. Instead, he asks us to extend application of the Swanson/Davis
rule to a fact-finder’s determination regarding the credibility of a defendant’s testimony,
even if the prosecutor did not suggest that the defendant tailored his testimony. Rodriguez
argues:
If it is highly improper for the prosecution to accuse a
defendant of tailoring his testimony to conform to the
evidence, it certainly is not proper for a trial court, sitting as
the factfinder, to discredit or impeach the defendant’s
credibility in this same manner.

He further argues: “It is difficult to understand how the judge can draw an adverse
credibility inference on its own when the prosecutor would be forbidden from eliciting the
same inference” and that “given the unique role of the judge, the Swanson/Davis rule is
especially applicable.”
We need not determine th is issue of first impression because —assuming without
deciding that the district court erred —the error was not prejudicial. A violation of the
8
Swanson/Davis rule does not provide a ground for relief absent prejudice. “Once
prosecutorial misconduct has been established, we must determine whether the misconduct
constitutes harmless error.” Swanson, 707 N.W.2d at 658 (concluding that the prosecutor’s
violation of the Swanson/Davis rule was harmless); see also Davis, 735 N.W.2d at 681-82
(stating that , despite the “ conclusion that the prosecutor engaged in misconduct ” in
violation of the Swanson/Davis rule, “we also conclude that the state has met i ts
burden . . . of showing that the misconduct did not affect Davis’s substantial rights”). For
the reason that follows, we discern no prejudice from the alleged violation of the
Swanson/Davis rule in this case.
Despite the district court’s observation that Rodriguez did not provide a statement
regarding his version of the events until after his receipt of discovery and the presentation
of the state’s case in chief, the district court provided numerous other detailed findings to
support its credibility determination , which do not reference any so-called “tailored”
testimony. The district court explained:
[N.R.’s] testimony at trial had some gaps where she
indicated she no longer remembered clearly and also a bit of
variation regarding whether she continued to push [Rodriguez]
off her after he inserted his penis or just as he was about to
insert his penis. However, the small gaps of memory and the
small variation in when she was attempting to push
[Rodriguez] off of her did not reduce her credibility in light of
over a year passing between her first statement and trial. [N.R.]
has overall consistently repo rted the events of July 15, 2023,
for approximately 14 months, including her statements to [ the
medical assistant ], the officer when she reported, testimony
before the grand jury and finally at trial. [N.R.] had a rational
reason not to yell during the incident. She expressed multiple
times that she did not want to wake her young child or younger
sister as she was responsible for them. She believed they
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would be traumatized or at risk of harm. There is no benefit to
[N.R.] from her testimony. [N.R.’s] testimony at trial was
credible.

. . . The short amount of time that [Rodriguez] spoke
with [N.R.] before beginning sexual contact is in direct
contradiction to his insistence that he did not intend to have
sexual relations with [N.R.] when he went to her apartment that
morning. [Rodriguez’s] claim that the two of them engaged in
multiple positions during the few minutes of the sexual
encounter is less likely than [N.R.’s] testimony that the
encounter occurred in one position with [Rodriguez] being on
top of her. This is in light of [N.R .] wearing a post surgical
boot and her behavior of keeping that foot elevated, using
crutches and being particularly protective of her foot.
[Rodgriguez’s] testimony was less credible than [N.R.’s]
testimony.

The district court also found that “during [N.R.’s] testimony she did not imply or in any
way communicate any hatred or strong anger towards [Rodgriguez]. She showed emotions
more consistent with a friend undermining her trust . . . .”
On this record, in which the district court made one finding suggesting tailored
testimony and offset that finding with numerous other detailed findings that persuasively
show why the district court did not credit Rodriguez’s testimony, we discern no prejudice
that would justify relief based on the alleged error.
II.
Alternatively, Rodriguez contends that the district court created an appearance of
partiality when it relied on an “improper inference” to find Rodriguez guilty. “Justice
requires that the judicial process be fair and that it appear to be fair; it necessarily follows
that a presiding judge must be impartial and must appear to be impartial.” State v. Pratt,
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813 N.W.2d 868, 878 (Minn. 2012). We presume that the district court discharged its
judicial duties properly. State v. Munt, 831 N.W.2d 569, 580 (Minn. 2013).
There are three types of judicial bias: actual, emergent, and perceived. State v.
Lopez, 988 N.W.2d 107, 117 (Minn. 2023). Rodriguez urges this court to apply the Powell
test, which applies in instances of perceived bias. When addressing “perceived bias, which
arises when facts or circumstances might cause the public to reasonably question the
impartiality of an unbiased court,” courts apply the Powell test and address three factors to
determine whether reversal is warranted: “(1) the risk of injustice to the parties in the
particular case, (2) the r isk that denial of relief will produce injustice in other cases, and
(3) the risk of undermining the public’s confidence in the judicial process.” Id. at 117, 120
(citing Powell v. Anderson, 660 N.W.2d 107, 121 (Minn. 2003)).
As to the risk of injustice to Rodriguez, we discern none. As explained in section I
of this opinion, Rodgriguez was not prejudiced by the district court’s single finding
regarding the timing of his trial testimony. For that same reason, we are not persuaded that
the denial of relief here will produce injustice in other cases. Finally, we are not concerned
that the single finding in this case will undermine the public’s confidence in the judicial
process. As the supreme court observed in Swanson, “One can reasonably argue that in
some cases, [tailoring] comments by the state are merely a statement of the obvious and
therefore should be permitted.” 707 N.W.2d at 657.
In sum, the district court did not create an appearance of partiality.
III.
Finally, Rodriguez contends that the prosecutor committed serious prejudicial
misconduct during the state’s closing argument. A prosecutor engages in misconduct if he
misstates the applicable law. State v. Strommen, 648 N.W.2d 681, 689 -90 (Minn. 2002).
A prosecutor also engages in misconduct if he intentionally misstates the evidence. State
v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006).
Rodriguez argues that the prosecutor misstated the law and the evidence by arguing
that he “admitted to penetrating [N.R.] with his mouth or with his hands,” that “[t]he only
element that’s in question is consent,” and that “[t]he parties agree that there was sexual
penetration.” Rodriguez did not object to these statements.
Unobjected to allegations of prosecutorial error are reviewed under a “modified
plain-error test.” State v. Portillo , 998 N.W.2d 242, 248 (Minn. 2023). Under that test,
the defendant has the burden to show that the misconduct constitutes error that is plain. Id.
If the defendant establishes error that is plain, the burden then shifts to the state to show
“that there is no reasonable likelihood that the absence of the misconduct in question would
have had a significant effect on the verdict.” Id. at 248, 251 (quotations omitted). If the
state fails to meet its burden, then we assess “w hether the error should be addressed to
ensure fairness and the integrity of the judicial proceedings .” Id. at 248 (quotation
omitted).
Rodriguez was convicted under Minn. Stat. § 609.3451, subd. 1 , which states, “ A
person is guilty of criminal sexual conduct in the fifth degree if the person engages in
nonconsensual sexual penetration. ” The term “sexual penetration” is defined to include
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“cunnilingus” as well as “ any intrusion however slight into the genital or anal
openings . . . of the complainant ’s body by any part of the actor ’s body .” Minn. Stat.
§ 609.341, subd. 12 (2022).
Rodriguez argues that the challenged statements were inaccurate because state did
not charge him with having oral sex with N.R. without her consent. But the indictment
alleged that Rodriguez engaged in nonconsensual sexual penetration, without specifying a
particular form of penetration. In addition, although the challenged statements were made
during the prosecutor’s oral closing argument at trial , Rodriquez’s subsequent written
closing argument did not assert that the prosecutor had improperly framed the issue for the
fact-finder. Instead, like the prosecutor, Rodriquez argued, “In this case, consent is the
only issue.”
On this record, Rodriquez fails to establish that the prosecutor engaged in
misconduct by misstating the law or the evidence.
Affirmed.