Dakota County District Court File No. 19HA-CR-11-257
Lori Swanson, Attorney General, St. Paul, Minnesota; and James Backstrom, Dakota County Attorney, M. Christine Misurek, Kevin J. Golden, Assistant County Attorneys, Hastings, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and Willis, Judge. [*]
Appellant argues that he was denied a fair trial because the prosecutor committed misconduct during closing argument by improperly shifting the burden of proof and misstating the law of defense of another. We affirm.
In February 2012, appellant Antonio Armando Zepeda was convicted of second-degree assault stemming from his display of a knife during a January 2011 confrontation at a convenience store parking lot. He argued at trial that he was acting in defense of another.
Around 2:30 a.m. on January 23, 2011, two groups of people arrived at a PDQ convenience store in Burnsville. The majority of the first group, which included D.M., J.A., A.R., K.W., and the victim, entered the store just as the second group arrived. The second group, which included Zepeda, T.G., and Zepeda's daughter and her boyfriend, parked next to the first group's vehicle.
At trial, witnesses from the two groups offered conflicting testimony about what occurred. According to testimony from individuals in the first group, the victim and J.A. exited the store and had a loud conversation about performing fellatio as they walked back to their vehicle. Meanwhile, D.M., the first group's sober designated driver, was still inside the store when a man from Zepeda's group walked into the store and said that someone in the parking lot was making comments about performing fellatio for $25. D.M. testified that Zepeda become upset by the comments and walked outside to D.M.'s vehicle, where the victim was sitting, and opened the vehicle door. According to the victim, when Zepeda opened the vehicle door, he asked if anyone was performing fellatio. The victim, who was unarmed, exited the vehicle and Zepeda then came toward him, threatened him, and made a gesture that made the victim believe that Zepeda was grabbing for a knife or had a knife. According to D.M., who saw the incident, Zepeda was reaching into his pocket as he said "I'll cut you" to the victim. At that point, T.G., who was with Zepeda's group, pushed Zepeda aside and came after the victim, jumping on him, grabbing his necklace, and tearing it off.
T.G., however, described a different version of the incident. She testified that as she walked into the store, one of the men in the other group yelled out to her, calling her "baby, " and asking her to come over and perform fellatio. She told Zepeda, who approached the other group's vehicle and asked who was saying such things. Then the victim, who was sitting in his vehicle, got out of the vehicle and stood face-to-face with Zepeda, who responded that he did not want any problems. As Zepeda and T.G. were walking back toward their car, the victim told Zepeda "[y]ou better keep your b-tch on a leash." When T.G. heard this, she became so upset that she "turned around in anger and [she] started charging toward" the victim to slap him, but Zepeda stopped her. T.G. denied assaulting the victim and testified that during the incident, she did not see Zepeda with a knife.
After seeing the commotion in the parking lot, the PDQ clerk called 911. Responding law enforcement authorities stopped the vehicle in which Zepeda was a passenger and discovered a folding knife in the center console.
The state charged Zepeda with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2010), and aiding and abetting attempted first-degree robbery in violation of Minn. Stat. §§ 609.05, subd. 1 (2010); .245, subd. 1 (2010), relative to the grabbing of the victim's necklace by T.G. The case went to trial in February 2012. During closing arguments, Zepeda argued that he was acting in defense of T.G. In its rebuttal closing argument, the state contended that Zepeda was the aggressor and that the evidence did not support his defense theory. ...