This opinion is nonprecedential except as provided by Minn.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 A23-1663
State of Minnesota, Respondent,
vs.
Reymundo Gonzalez, Appellant.
Filed August 26, 2024 Affirmed in part, reversed in part, and remanded Johnson, Judge
Olmsted County District Court File No. 55-CR-21-1114
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County Attorney, Rochester, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Segal, Chief Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
An Olmsted County jury found Reymundo Gonzalez guilty of second-degree
criminal sexual conduct based on evidence that he touched a young girl’s vaginal area over
her clothing. We conclude that the district court did not err by admitting Spreigl evidence of Gonzalez’s conduct toward the girl’s half-sister and that the prosecutor did not engage
in misconduct that requires a new trial. But we conclude that the district court erred by
ordering Gonzalez to pay restitution to the county sheriff’s office for the costs of
extraditing him from Texas to Minnesota. Therefore, we affirm in part, reverse in part, and
remand for resentencing.
FACTS
In September 2018, L.B., a 13-year-old girl living in Texas, confided to a relative
that a man had sexually assaulted her when she was seven or eight years old while he was
living in her family’s home in Minnesota. L.B. did not know the man’s name but said that
he went by the nickname “Chief” and was known as the “grandpa” of her half-sister, though
there was no such actual familial relationship. L.B. also said that the man has a mole on
his face and tattoos. L.B.’s relative determined that the man was Gonzalez and confirmed
that fact by showing L.B. a photograph of Gonzalez. L.B.’s relative made a report to Texas
law-enforcement authorities, who arranged for a forensic interview of L.B. Texas law
enforcement then referred the matter to Minnesota law enforcement. The City of Rochester
police department conducted an investigation.
In February 2021, the state charged Gonzalez with first-degree criminal sexual
conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2012). The state alleged that
Gonzalez committed the crime between November 2012 and November 2014. In June
2022, Gonzalez was extradited from Texas to Minnesota. In May 2023, the state amended
the complaint by substituting a charge of second-degree criminal sexual conduct causing
2 fear of imminent great bodily harm, in violation of Minn. Stat. § 609.343, subd. 1(c)
(2012).
The case was tried to a jury on two days in June 2023. The state called eight
witnesses. L.B. testified that Gonzalez touched her vagina “countless times” and that he
repeatedly hit her in the back of the head, grabbed her arm, or took off his belt and
threatened to hit her with it. L.B. also testified that, on one occasion, Gonzalez grabbed
her, pushed her into a wooded area behind her house, covered her mouth, tried to remove
her clothes, and touched her vaginal area over her clothes. She testified that Gonzalez told
her to stop screaming and said that he would kill her family if she tried to scream. L.B.
testified further that, on one occasion, Gonzalez entered her bedroom while she was
sleeping, touched her private parts, and placed a dollar bill under her pillow. L.B. gave the
dollar bill to her mother and told her what had happened. L.B.’s mother confronted
Gonzalez, who then ceased the inappropriate conduct for a while before resuming again.
L.B. identified Gonzalez in the courtroom as the man who engaged in the conduct that she
had described, based in part on the tattoos on his arms and the mole on his face.
Gonzalez did not testify. At the state’s request, the district court submitted the
charged offense to the jury and also submitted a lesser-included charge of second-degree
criminal sexual conduct. The jury found Gonzalez guilty of both offenses. The district
court imposed a sentence of 108 months of imprisonment on the charge alleged in the
amended complaint. Gonzalez appeals.
3 DECISION
I. Spreigl Evidence
Gonzalez first argues that the district court erred by admitting the testimony of
L.B.’s half-sister, B.G., who testified that Gonzalez once offered to give her a dollar if she
would allow him to touch her private parts.
Gonzalez’s argument is based on a rule of evidence that provides, “Evidence of
another crime, wrong, or act is not admissible to prove the character of a person in order to
show action in conformity therewith,” though it may be admissible “for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Minn. R. Evid. 404(b)(1). Evidence of other crimes or
bad acts is known in Minnesota as “Spreigl evidence.” State v. Kennedy, 585 N.W.2d 385,
389 (Minn. 1998) (citing State v. Spreigl, 139 N.W.2d 167 (Minn. 1965)). Such evidence
generally is inadmissible unless
(a) the proffered evidence is relevant to an identified material issue other than conduct conforming with a character trait; (b) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; and (c) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.
Minn. R. Evid. 404(b)(2). This court applies an abuse-of-discretion standard of review to
a district court’s admission of Spreigl evidence. State v. Griffin, 887 N.W.2d 257, 261
(Minn. 2016).
The Spreigl issue first arose seven months before trial, when the state gave notice
of its intent to offer evidence of Gonzalez’s conduct toward B.G. One week before trial,
4 the state filed a memorandum in which it asserted that the Spreigl evidence is admissible
to prove a common scheme or plan and to prove identity. The state asserted that the
incident involving B.G. is similar to the incident in which Gonzalez put a dollar bill under
L.B.’s pillow after inappropriately touching her.
On the first day of trial, the district court heard arguments on the Spreigl issue and
ruled provisionally that B.G.’s testimony would be admitted if she could identify Gonzalez
as the man who had offered her a dollar. The district court reasoned that the Spreigl
evidence would be relevant to intent and modus operandi and that the probative value of
the evidence outweighed the potential for unfair prejudice, in part because Gonzalez did
not actually touch B.G.
B.G. testified that, on one occasion while she and L.B. were living in the same house
in Rochester, Gonzalez offered to give her a dollar if she would let him touch her private
parts. B.G. testified that she refused and that Gonzalez did not touch her. B.G. also
testified that she was “a hundred percent” sure that Gonzalez was that man based on “his
mustache, his glasses, and his mole on the cheek.”
Gonzalez argues that the district court erred in three ways. First, he contends that
the district court erred by not examining “the real purposes” for which the Spreigl evidence
was offered. See State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006); State v. Smith, 749
N.W.2d 88, 94 (Minn. App. 2008). The state’s asserted purposes were common scheme
or plan and identity. The state relied on State v. Wermerskirchen, 497 N.W.2d 235 (Minn.
1993), which provides strong support for the introduction of Spreigl evidence in a
prosecution for criminal sexual conduct against a child on the ground that such evidence
5 may be used to “establish common scheme or plan, i.e., to establish that the act occurred.”
Id. at 241; see also Ness, 707 N.W.2d at 688; State v. Asfeld, 662 N.W.2d 534, 542 (Minn.
2003); State v. Anderson, 275 N.W.2d 554, 555-56 (Minn. 1978). The district court
referred to the Kennedy opinion in ruling that the Spreigl evidence is admissible to show
modus operandi. In Kennedy, the supreme court held that Spreigl evidence of a defendant’s
sexual conduct toward others may be relevant to show a common scheme or plan. 585
N.W.2d at 391. Other opinions have discussed the interrelationship between common
scheme or plan and modus operandi. See, e.g., Ness, 707 N.W.2d at 687-88. We construe
the district court’s ruling as approving of the state’s theory of common scheme or plan.
The district court did not abuse its discretion in ruling that there was a proper purpose for
the state’s Spreigl evidence.
Second, Gonzalez contends that the district court erred by not identifying the precise
disputed fact to which the Spreigl evidence was relevant. This contention is resolved by
the same caselaw that justified the state’s purpose in introducing the evidence. The
supreme court reasoned in Wermerskirchen that common-scheme-or-plan evidence is
“highly relevant to the specific issue of whether the conduct on which the charge was based
actually occurred or was, as the defendants contended, a fabrication or a mistake in
perception by the victim.” 497 N.W.2d at 242. Because the defendant in Wermerskirchen
had denied the alleged sexual conduct, the Spreigl evidence was “highly relevant” in that
“it showed an ongoing pattern of opportunistic fondling of young girls within the family
context and, therefore, tended to disprove the defense that [the complainant] was
fabricating or imagining the occurrence of sexual contact” and conveyed to the jury “a clear
6 indication of . . . a design or a pattern of behavior involving the opportunistic sexual
exploitation of young girls within the family context.” Id. (quotation omitted). In this case,
Gonzalez’s attorney argued in closing argument, that “multiple people could have abused
this young girl” but that Gonzalez did not do so. Accordingly, the state’s common-scheme-
or-plan evidence was relevant to both identity and whether the alleged conduct occurred.
See Kennedy, 585 N.W.2d at 391; Wermerskirchen, 497 N.W.2d at 242. The district court
did not expressly identify those factual issues, but they may be implied from the whole of
the district court’s ruling. The district court did not abuse its discretion by not identifying
with more specificity the disputed factual issue to which the Spreigl evidence is relevant.
Third, Gonzalez contends that the district court erred by reasoning that the potential
for unfair prejudice did not outweigh the probative value of the Spreigl evidence. The
district court stated that B.G.’s testimony had limited potential for unfair prejudice because
it concerned an incident that was less serious than the allegations underlying the charged
offense because there was no actual sexual contact between Gonzalez and B.G. The district
court did not abuse its discretion by ruling that the risk of unfair prejudice was outweighed
by the probative value of the evidence.
Thus, the district court did not err by admitting the state’s Spreigl evidence.
II. Prosecutorial Misconduct
Gonzalez next argues that the prosecutor engaged in misconduct in statements to
the jury, in three ways.
The right to due process of law includes the right to a fair trial. Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App.
7 2007), rev. denied (Minn. June 19, 2007). “Prosecutors have an affirmative obligation to
ensure that a defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn.
2008) (quotation omitted). Consequently, prosecutorial misconduct may result in the
denial of the right to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).
The parties agree that Gonzalez did not object at trial to the alleged misconduct that
he challenges on appeal. Accordingly, we apply the modified plain-error test. State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under the modified plain-error
test, an appellant initially must establish that there is prosecutorial misconduct and that it
is plain. Ramey, 721 N.W.2d at 302. If the appellant establishes plain misconduct, the
burden shifts to the state to show that the plain misconduct did not affect the appellant’s
substantial rights, i.e., “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 these three prongs are satisfied, the court then assesses whether
the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010).
First, Gonzalez contends that the prosecutor engaged in misconduct in closing
argument by aligning himself with the jury by using the word “we” when speaking to
jurors. At oral argument, Gonzalez’s appellate attorney stated that the prosecutor
improperly used the word “we” 37 times during closing argument. Gonzalez relies on State
v. Mayhorn, 720 N.W.2d 776 (Minn. 2006), in which the supreme court stated that “a
prosecutor is not a member of the jury” and, thus, may not “describe herself and the jury
as a group of which the defendant is not a part.” Id. at 790.
8 In response, the state acknowledges that some of the prosecutor’s uses of the word
“we” may have been improper, which we understand to be a limited concession. The state
also contends that Mayhorn is distinguishable because the prosecutor in that case used the
word “we” in the context of what the supreme court described as a possible “attempt[] to
highlight cultural differences between the predominantly white jury and the [African
American] defendant.” Id. at 789. Gonzalez agrees that the prosecutor’s closing argument
in this case was not infected with the improper purpose that was present in Mayhorn. The
state also responds by citing Nunn v. State, 753 N.W.2d 657 (Minn. 2008), in which the
supreme court held that the prosecutor did not engage in misconduct because the word
“we” “does not necessarily exclude the defendant . . . [and] could reasonably be interpreted
. . . to refer to everybody who was in court when the evidence was presented.” Id. at 663.
We accept the state’s limited concession that the prosecutor sometimes used the
word “we” in an improper way and, thus, engaged in misconduct. For purposes of this
nonprecedential opinion, we assume without deciding that the misconduct was plain. But
on most occasions, the prosecutor’s use of “we” was more like the statements in Nunn than
those in Mayhorn. On many occasions, the prosecutor simply used the word “we” as an
innocuous rhetorical device when describing the evidence presented at trial. Consequently,
the prosecutor did not engage in misconduct on the occasions that are not conceded to be
misconduct.
Second, Gonzalez contends that the prosecutor engaged in misconduct in both the
opening statement and in closing argument by vouching for the credibility of L.B. “A
prosecutor may not express a personal opinion regarding witness credibility, but it is not
9 improper for a prosecutor to analyze the evidence and argue that particular witnesses were
or were not credible.” State v. Smith, 825 N.W.2d 131, 139 (Minn. App. 2012) (quotation
omitted), rev. denied (Minn. Mar. 19, 2013). The prosecutor’s statements concerning
L.B.’s credibility did not communicate the prosecutor’s personal belief about her
credibility. Rather, the statements were appropriate ways of attempting to persuade the
jury to find L.B. credible.
Third, Gonzalez contends that the prosecutor engaged in misconduct in closing
argument by inflaming the passions of the jury by highlighting L.B.’s young age and
diminutive size and the fear that she felt during the incident in the woods. A prosecutor is
not required to make a colorless argument. State v. Porter, 526 N.W.2d 359, 363 (Minn.
1995). Given the charged offense, the state was required to prove that “circumstances
existing at the time of the act cause[d] the complainant to have a reasonable fear of
imminent great bodily harm to the complainant or another.” Minn. Stat. § 609.343,
subd. 1(c). The prosecutor’s reference to the incident in the woods did not inflame the
passions of the jury.
Having identified one form of prosecutorial misconduct that we assume to be plain,
we must determine whether Gonzalez is entitled to an appellate remedy. The relevant
question is whether the state has satisfied its burden of showing that the misconduct did
not affect Gonzalez’s substantial rights, i.e., “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.” See Ramey, 721 N.W.2d at 302 (quotation omitted). “When reviewing claims
of prosecutorial misconduct during closing argument, we consider the argument as a whole,
10 rather than focusing on particular phrases or remarks that may be taken out of context or
given undue prominence.” State v. Jones, 753 N.W.2d 677, 691 (Minn. 2008) (quotation
omitted).
We believe that there is no reasonable likelihood that the prosecutor’s occasional
wrongful use of the word “we” had a significant effect on the jury’s verdict. Even when
using the word “we,” the prosecutor’s arguments were focused on the evidence and the
inferences that may be drawn from the evidence. The jury likely decided the case based
on the evidence, not on the prosecutor’s “we” statements. L.B. testified in detail about the
alleged incidents, and her testimony was corroborated by B.G., who testified that Gonzalez
engaged in similar conduct toward her on one occasion. We do not believe that the result
would have been different if the prosecutor had not improperly used the word “we” in
closing argument.
Thus, Gonzalez is not entitled to a new trial on the ground of prosecutorial
III. Restitution
Gonzalez last argues that the district court erred by ordering him to pay restitution
to the county sheriff’s office for the expenses it incurred in extraditing Gonzalez from
Texas to Minnesota.
In June 2022, shortly after Gonzalez was extradited, the county sheriff’s office
submitted a letter to the district court administrator stating that it had incurred expenses of
$6,800 to extradite Gonzalez from Texas to Minnesota. The sheriff’s office requested
reimbursement from Gonzalez pursuant to a statute providing that, “upon conviction of the
11 defendant, the court may order as part of the sentence that defendant shall pay the whole
or any part of the disbursements of the prosecution, including disbursements made to
extradite a defendant.” Minn. Stat. § 631.48 (2012) (emphasis added).
At the sentencing hearing in August 2023, the prosecutor informed the district court
that the county sheriff’s office had filed a “restitution affidavit.” The district court
responded by ordering Gonzalez to pay “$6,800 in restitution to the Olmsted County
Sheriff’s Department.” The district court filed a warrant of commitment that includes
“restitution” in the amount of $6,800.
“A victim of a crime has the right to receive restitution as part of the disposition of
a criminal charge . . . if the offender is convicted . . . .” Minn. Stat. § 611A.04, subd. 1(a)
(2012). The word “victim” is defined within chapter 611A to mean, primarily, “a natural
person who incurs loss or harm as a result of a crime.” Minn. Stat. § 611A.01(b) (2012).
The statutory definition also includes “a government entity that incurs loss or harm as a
result of a crime.” Id. But restitution may be ordered “only for losses that are directly
caused by, or follow naturally as a consequence of, the defendant’s crime.” State v.
Boettcher, 931 N.W.2d 376, 381 (Minn. 2019).
In this case, the victim of Gonzalez’s crime is L.B. The county sheriff’s office is
not a victim of Gonzalez’s crime because it did not sustain a loss directly caused by
Gonzalez’s crime of criminal sexual conduct. See State v. Kendall, No. A05-998, 2006
WL 2129720, *4 (Minn. App. Aug. 1, 2006) (concluding that court administrator and
police department were not “direct victims” of crime of driving after cancellation and, thus,
12 not entitled to restitution); see also Minn. R. Civ. App. P. 136.01, subd. 1(c) (stating that
“nonprecedential opinions may be cited as persuasive authority”).
At oral argument, the state cited State v. Kujak, 639 N.W.2d 878 (Minn. App. 2002),
rev. denied (Minn. Mar. 25, 2002), in which this court affirmed a sentencing order that
awarded restitution to a drug task force. Id. at 885. We acknowledged that “payment of
restitution to a drug task force is inappropriate.” Id. (citing State v. Murray, 529 N.W.2d
453, 455-56 (Minn. App. 1995)). 1 We nonetheless affirmed because the district court
originally ordered “reimbursement” of the “costs of prosecution” pursuant to section
631.48 but the district court administrator later made a clerical error by referring to the
payment obligation as “restitution.” Id. In this case, however, the district court used the
term “restitution” both during the sentencing hearing and in its warrant of commitment,
which means that there is no clerical error. For that reason, Kujak is distinguishable.
Thus, the district court erred by ordering Gonzalez to pay restitution to the county
sheriff’s office. Therefore, we reverse that part of Gonzalez’s sentence and remand to the
district court for resentencing, with instructions to vacate the restitution award.
Affirmed in part, reversed in part, and remanded.
1 We note that the restitution statute was amended after Murray to allow governmental entities to receive restitution, when appropriate. See 1996 Minn. Laws ch. 408, art. 7, §§ 2, 3, 5, at 673-75 (codified at Minn. Stat. §§ 609.10, 609.125, 611A.01(b) (1996)); 1997 Minn. Laws ch. 239, art. 7, § 19, at 2838 (codified at Minn. Stat. § 611A.01(b) (1998)). Those amendments are not relevant to this appeal, in which Kujak is cited only for the proposition that a restitution order may be affirmed even if restitution is inappropriate.