, A17-1672

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0990, A17-1672

State of Minnesota,
Respondent,

vs.

Jeffery Robert Kampsula,
Appellant.

Filed December 3, 2018
Affirmed in part, reversed in part, and remanded
Ross, Judge

Otter Tail County District Court
File No. 56-CR-15-2464

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Michelle Eldien, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Police suspected that Jeffery Kampsula had sold soybeans and farm equipment from
rural property he was renting. The state charged Kampsula with, and a jury convicted him
of, theft, theft by swindle, and aggravated forgery. Kampsula argues that the evidence was
2
insufficient to convict him, that the district court erred by failing to give a specific-
unanimity instruction, and that the district court erroneously instructed the jury about
accomplice liability. Kampsula’s insufficient-evidence and accomplice-liability arguments
fail, so we affirm in part. But we reverse in part and remand for a new trial on the theft
charge because the lack of a specific-unanimity instruction prevents us from determin ing
whether the jury unanimously found that Kampsula committed that offense.
FACTS
Jeffery Kampsula and Katherine Gaustad were renting an Otter Tail County
farmhouse when their landlord died in January 2015. Gary Wendorf, the landlord’s brother,
visited the farm and saw Kampsula removing soybeans from the farm’s grain storage bin.
Kampsula told Wendorf that he was disposing of the beans because they were rotten, mouse
infested, and worthless.
Wendorf returned later to inventory the equipment belonging to the estate. Wendorf
found a Bobcat skid loader in the garage, but not a Big Tex dump trailer or an Allis-
Chalmers tractor he had also expected to find. Wendorf asked Kampsula about the missing
equipment. Kampsula told him that the dump trailer was at his mother’s house full of wood
and that the ground was too wet to move it. He said that he had taken the tractor to a friend’s
house because it was malfunctioning. The two spoke about the condition of the skid loader,
and Kampsula said that its fuel pump was failing.
The next month Wendorf noticed that a shed had been broken into. He reported both
the break-in and the missing dump trailer and tractor to the sheriff’s department. The
resulting investigation uncovered the follow ing facts. Kampsula had already sold the
3
missing dump trailer and tractor before Wendorf asked Kampsula about them. And
Kampsula had also sold the soybeans. He sold the dump trailer to Gary Albertson for a car
and $2,000. The Henning police chief had pulled Kampsula over a month and a half before
Kampsula sold the trailer to Albertson. Kampsula was pulling the trailer, which lacked a
license plate. The chief asked Kampsula about the trailer, and Kampsula said he was
borrowing it. Albertson said that Kampsula had entered the Weetown Outpost attempting
to sell the trailer with an unsigned title. Albertson objected to purchasing the trailer without
a signature. Kampsula left, but he soon reappeared with the title, this time bearing the
signature of the (deceased) landlord. Albertson bought the trailer and accepted the title.
Kampsula sold the tractor to George Lorentz for $2,000 worth of repairs on Kampsula’s
Chevy Suburban. And he sold the (purportedly rotten, mice- infested, and worthless)
soybeans for more than $4,000. By the time the investigation ended, the skid loader had
also disappeared from the farm.
The state charged Kampsula with one count of theft, one count of theft by swindle,
one count of aggravated forgery, and one count of receiving stolen property. The district
court dismissed the charge of receiving stolen property, and trial commenced on the
remaining counts.
The jury heard the account just described and also heard from Kampsula’s two
witnesses. Kampsula called William Roach, who told the jury that he saw Kampsula and
the landlord signing papers for the sale of the skid loader soon before the landlord died.
Kampsula also called Katherine Gaustad, who identified the skid loader’s supposed bill of
4
sale, purportedly bearing the landlord’s signature. The state’s handwriting expert told the
jury she was almost certain the signature was not the landlord’s.
The district court instructed the jury. It told the jury that, to find Kampsula guilty of
theft, it must find that he took “the soybeans, Allis-Chalmers tractor, Big Tex dump trailer,
or Bobcat skid loader, ” and it must find that Kampsula intended to deprive the owner
permanently of “the soybeans, Allis-Chalmers tractor, Big Tex dump trailer, or Bobcat
skid loader.” (Emphasis added.) The district court did not instruct the jury that it must
unanimously agree as to which of the items was stolen. The court also instructed the jury
that it could find Kampsula guilty of theft by swindle if he swindled Lorentz into repairing
Kampsula’s Chevy Suburban or if Kampsula swindled Albertson into giving up a car and
$2,000 cash. And it told the jury that it must decide whether the property obtained by the
swindle included Kampsula’s obtaining a motor vehicle. The jury found Kampsula guilty
of theft, theft by swindle, and aggravated forgery.
Kampsula appeals.
D E C I S I O N
Kampsula challenges his convictions on four grounds. He argues first that we must
reverse because the evidence was insufficient to prove any of the charges. He argues second
that the district court failed to instruct the jury that it must unanimously agree which of the
several alleged acts of theft and theft by swindle supports the single charged count of each
crime. He ar gues third that the district court erroneously instructed the jury about
accomplice liability and fourth that the errors, considered together, unfairly prejudiced him.
Only one of his arguments merits reversal.
5
I
Kampsula contends that the evidence was insufficient to prove he committed theft,
theft by swindle, or aggravated forgery. We review the evidence in the light most favorable
to the verdict to determine whether those facts and the inferences drawn from them would
allow a jury to conclude that the defendant is guilty beyond a reasonable doubt. State v.
Salyers, 858 N.W.2d 156, 160 (Minn. 2015). On this standard, we have no difficulty
deciding that the evidence supports the guilty verdict on each charge.
We reject Kampsula’s argument that the state failed to prove that anyone besides
him had a possessory interest in the allegedly stolen items after the landlord’s death. A
person who intentionally takes the property “of another” without the other’s consent to
deprive the owner permanently of the property is guilty of theft. Minn. Stat. § 609.52, subd.
2(a)(1) (2016). Wendorf testified that all of the interest in the landlord’s property
transferred from his deceased brother to him and his siblings. And he discussed the
ownership of each item. He testif ied that he combined the soybeans himself and stored
them on the farm . He said that the equipment was also part of his brother’s estate. He
remembered his brother buying the tractor, and he identified a photograph of a stamp on
the tractor bearing the name “Wendorf Farms ” along with the farm’s address. This
testimony was sufficient to convince a reasonable jury that the property belonged to
someone other than Kampsula.
This conclusion is not hindered by Kampsula’s tardy suggestion on appeal that
Wendorf’s testimony lacked foundation. A defendant waives foundational challenges not
6
raised at trial. See State v. Pearson, 189 N.W. 404, 405 (Minn. 1922). Kampsula failed to
challenge the testimony at trial. Our conclusion as to ownership by “another” stands.
Kampsula argues next that the circumstantial evidence was insufficient to prove that
he took the Wendorfs’ property without consent. The evidence supporting this element is
circumstantial. We scrutinize the evidence more restrictively when we review convictions
based on circumstantial evidence. See State v. Al–Naseer, 788 N.W.2d 469, 473 (Minn.
2010). Our review as to whether the circumstantial evidence sufficiently proved that
Kampsula took the Wendorfs’ property without consent involves two steps. We first
identify the circumstances proved. State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011).
To determine the circumstances proved, we consider only those circumstances consistent
with the guilty verdict. State v. Sterling, 834 N.W.2d 162, 175 (Minn. 2013). We then
independently consider the reasonableness of the inferences that can be made from these
circumstances, including inferences consistent with innocence. Id . at 176. We will affirm
a guilty verdict only if “there are no other reasonable, rational inferences that are
inconsistent with guilt.” Hanson, 800 N.W.2d at 622 (quotation omitted). Even on our more
exacting circumstantial-evidence review, we hold that ample evidence proved that
Kampsula lacked consent to take the soybeans, tractor, dump trailer, or skid loader.
Kampsula offers the hypothesis that the landlord had consented to Kampsula’s
taking the soybeans, tractor, dump trailer, and skid loader. The circumstances proved belie
that theory.
Regarding the soybeans, Kampsula contends that he had a deal with the landlord to
clean out and disassemble the grain bins in exchange for the beans. This is not among the
7
relevant circumstances proved. Three of the circumstances proved are that Kampsula
removed the soybeans, took only the beans he sold, and never cleaned or disassembled the
bins. Another circumstance is that, even as Kampsula was actively collecting the soybeans
that he sold for $4,000, he falsely represented to Wendorf that they were worthless.
Kampsula’s dishonest report of the beans’ condition, his removal of only the sellable beans,
and his failure to clean and disassemble the bins after taking the beans render unreasonable
his hypothesis that he was acting on the landlord’s consent to his owning the beans in the
alleged bartered exchange. The only reasonable inference from these circumstances is that
Kampsula lacked the landlord’s consent to take or sell the soybeans.
Regarding the equipment, the circumstances proved indicate that Kampsula lied
when he reported to Wendorf that the dump trailer was at his mother’s house and the tractor
was at a friend’s house when, in fact, Kampsula had already sold both of them . The
circumstances also include Kampsula’s admission to the Henning police chief that he did
not own the trailer. And they show that, after a potential buyer refused to purchase the
trailer from Kampsula because its title was unsigned, Kampsula left and soon reappeared
with the title bearing the forged signature of his deceased landlord. When Wendorf inquired
about the condition of the skid loader, Kampsula did not suggest that the landlord had
already given it to him. And Kampsula presented a trial witness who claimed to have seen
Kampsula purchase the loader from the landlord but who identified a purported bill of sale
that bore a poor forgery of the landlord’s signature. The only reasonable inference from
these and other circumstances proved about the equipment is that Kampsula lacked the
landlord’s consent to take or dispose of any of it.
8
Kampsula also relies on his consent theory to assert that the evidence supporting his
theft-by-swindle and aggravated-forgery convictions is insufficient, and the argument fails
on the same proved circumstances just outlined. A person commits theft “by swindling,
whether by artifice, trick, device, or any other means” to obtain property or services “from
another person.” Minn. Stat. § 609.52, subd. 2(a)(4) (2016). And a person commits
aggravated forgery by falsely making or altering a writing or object “so that it purports to
have been made by another” with the intent to defraud. Minn. Stat. § 609.625, subd. 1
(2016). The circumstances consistent with the verdict indicate that Kampsula lacked
consent to take either the skid loader or the trailer and that he f orged the landlord’s
signature on an alleged bill of sale to fraudulently represent that the landlord had sold the
skid loader and to fraudulently represent that he had the right to sell the trailer. The
circumstances proved lead only to guilt and cannot reasonably support Kampsula’s
innocent hypothesis.
II
More persuasive is Kampsula’s argument that the district court erred by failing to
instruct the jury that, to f ind Kampsula guilty of the single count of theft, it must
unanimously agree as to which of the different alleged acts of theft Kampsula committed.
He makes the same argument regarding the theft-by-swindle conviction.
Kampsula did not ask the district court to instruct the jury about the specific-
unanimity requirement, so we review only for plain error. State v. Webster, 894 N.W.2d
782, 786 (Minn. 2017). Under this standard, we will consider reversing only if we conclude
that the district court erred, the error was plain, and the error affected Kampsula’s
9
substantial rights. Id. If we reach all of these conclusions, we will use our discretion to
correct the error only if the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Kampsula contends that the district court erred by failing to instruct the jury that it
could find him guilty of theft only if all jurors unanimously agreed as to which of the four
items he stole. The argument is well taken. The Sixth Amendment guarantees every
accused the right to “an impartial jury” in all criminal prosecutions. U.S. Const. amend .
VI. And in Minnesota, “The jury’s verdict must be unanimous in all cases.” Minn. R. Crim.
P. 26.01, subd. 1(5). But when “jury instructions allow for possible significant
disagreement among jurors as to what acts the defendant committed, the instructions
violate the defendant’s right to a unanimous verdict.” State v. Stempf, 627 N.W.2d 352,
354 (Minn. App. 2001); see also Richardson v. United States , 526 U.S. 813, 824, 119 S.
Ct. 1707, 1713 (1999) (holding that the jury must unanimously agree as to which acts the
defendant committed if each act alone constitutes an element of the crime ). Applying this
rule, when the state charges a defendant with a single crime but alleges more than one act
that could independently constitute the crime, the jury vindicates the defendant’s right to a
unanimous verdict only if it unanimously agrees as to which act the defendant committed.
Stempf, 627 N.W.2d at 356.
Our reasoning in Stempf, where we expressly adopted the requirement for a specific-
unanimity instruction, controls here. We reversed Stempf’s conviction of a single count of
controlled-substance crime for possessing methamphetamine. 627 N.W.2d at 357–58. The
state had presented evidence that Stempf possessed drugs both at his workplace and in his
10
truck, but the district court refused to instruct the jury that it could find him guilty only if
it unanimously agreed which of the two alleged acts occurred. Id. In reversing the
conviction, we explained that failing to instruct the jury to specify which act S tempf
committed opened the possibility that the verdict was not truly unanimous, as some jurors
might have believed that Stempf possessed the methamphetamine only at work while
others believed he possessed the drugs only in his truck. Id. at 358.
Similarly here, without a specific instruction, we cannot say that the jury
unanimously found that Kampsula stole any one of the alleged objects taken in the theft—
the soybeans, the tractor, the trailer, or the skid loader. And jurors might have reasonably
interpreted the ambiguous instruction given (advising the jury to convict Kampsula of theft
if it found that Kampsula took “the soybeans, Allis-Chalmers tractor, Big Tex dump trailer,
or Bobcat skid loader”) as inviting jurors individually—rather than the whole jury as a
unanimous body—to rest the verdict specifically on any of the four items. This situation
leaves open the possibility that, despite the purportedly unanimous guilty verdict, the jury
might not have unanimously found that Kampsula stole the same particular item.
We are not persuaded otherwise by the state’s assertion that jurors are not always
required to agree on a single act that constitutes a charged crime. It is true that a jury need
not “unanimously agree on the facts underlying an element of a crime in all cases.” State
v. Pendleton, 725 N.W.2d 717, 731 (Minn. 2007). The Pendleton court reminds us that
“different jurors may be persuaded by different pieces of evidence, even when they agree
upon the bottom line.” Id. at 733 (quotation omitted). So, for example, when a defendant
is charged with kidnapping under a statute that defines the crime as the nonconsensual
11
confining or removing of a person from one place to another for any of four listed purposes,
the district court need not give a specific-unanimity instruction as to which of those four
purposes each juror found to have been the defendant’s motive. Id. at 729–32. The jury-
unanimity requirement is satisfied if the jury was instructed to agree that the defendant had
any of the listed purposes under the mens rea element. Id. Likewise the district court is not
bound to require jurors to agree on any specific predicate act that meets the element of a
“past pattern of domestic abuse” before finding a defendant guilty of a domestic-abuse
homicide. State v. Crowsbreast, 629 N.W.2d 433, 438 –39 (Minn. 2001). Similarly the
district court need not instruct the jury in a domestic-assault trial that it must unanimously
find which of several means of committing an assault the defendant’s actions satisfied, as
between intentionally causing fear of bodily harm, intentionally inflicting harm, and
attempting to inflict bodily harm. State v. Dalbec, 789 N.W.2d 508, 513 (Minn. App. 2010).
Unlike in this line of cases involving potentially different m eans of committing a
criminal act, in this case, as in Stempf, without a specific-unanimity instruction, the guilty
verdict does not reveal whether every juror agreed that the defendant committed any one
criminal act . Failing to give a specific-unanimity instruction was therefore error. And
because it was an error that contravenes well -established case law, State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006), the error was plain.
We hold too that the plain error affected Kampsula’s substantial rights. A plainly
erroneous jury instruction affects a defendant’s substantial rights if there is a reasonable
likelihood that giving the proper instruction would have significantly affected the verdict.
State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015). Kampsula offered different evidence
12
and theories to support his consent defense as to each of the items. Among other theories,
to justify the skid-loader sale, he relied on the alleged bill of sale as proof of the landlord’s
prior consent; to justify his taking and selling the soybeans, he relied on testimony from
his acquaintance about an alleged agreement to clean the bins in exchange for the beans;
to justify his taking and selling the tractor, he relied on his claimed agreement with the
landlord to exchange his labor for the tractor; and to justify his taking and selling the trailer,
he claimed that the landlord had given the trailer to him because it was too difficult to
maneuver. The state reasonably emphasizes that the evidence rather compellingly
established Kampsula’s guilt, but this is so only if we conclude that each juror rejected the
same theories. In a similar situation where “the jury could have believed appellant’s
defense as to one act but not the other,” we concluded that the record did “not permit a
conclusion that violation of appellant’s right to a unanimous verdict may have been
harmless error.” Stempf, 627 N.W.2d at 358. This case requires the same conclusion for
the same reason. We add that we must reverse the theft conviction to ensure the fairness,
integrity, and public reputation of judicial proceedings in light of the failing of the essential
requirement that every conviction must result from a unanimous verdict.
We reach a different conclusion as to the theft-by -swindle conviction. The district
court directed the jury to decide whether Kampsula swindled one acquaintance into
repairing his Chevy Suburban and whether he swindled a different acquaintance into giving
up a car and $2,000 in cash. The jury completed a special verdict form finding that “the
property obtained by [s]windle [did not] include a vehicle.” Because only one of the alleged
swindles involved Kampsula’s obtaining a motor vehicle, by necessary inference the
13
verdict unanimously establishes the specific criminal act that the jury found him guilty of.
We therefore affirm Kampsula’s theft-by-swindle conviction.
III
Kampsula asks us to review the district court’s instruction on accomplice liability.
The district court issued the following now-challenged instruction:
A defendant is guilty of a crime committed by another
person when the defendant has played an intentional role in
aiding the commission of the crime and made no reasonable
effort to prevent the crime before it was committed.
“Intentional role” includes aiding, advising, hiring, counseling,
conspiring with, or procuring another to commit the crime.

Kampsula did not object to this instruction at trial, so again, we consider only whether the
instruction constitutes plain error. Webster, 894 N.W.2d at 786. An instruction is erroneous
if the district court abused its discretion by issuing it, such as when the instruction
materially misstates the law or is so confusing or misleading that the jury cannot understand
it. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).
The challenged instruction is plainly erroneous under this standard because it failed
to properly advise the jury about accomplice liability. An accomplice -liability instruction
must explain that a defendant is criminally liable for the acts of another only if he “knew
his alleged accomplice was going to commit a crime and the defendant intended his
presence or actions to further the commission of that crime.” State v. Huber, 877 N.W.2d
519, 524 (Minn. 2016) (quotation omitted). The challenged instruction fails on that point.
It is similar to the instruction in Huber, which failed to explain the meaning of
“intentionally aiding.” Id. at 525. In Huber, the erroneous instruction failed to inform the
14
jury not to convict unl ess the evidence proved that the defendant “knew the other person
was going to commit a crime and intended his actions or presence to further the commission
of that offense.” Id. And similarly here, the instruction did not explain that Kampsula
cannot be guilty of another’s crime unless he knew the other person was going to commit
a crime and he intended his actions or presence to further its commission. The instruction
is therefore plainly erroneous.
But the erroneous instruction does not lead us to reverse because it did not affect
Kampsula’s substantial rights by prejudicing his defense. The jury received no evidence
and heard no argument that any o ther person was the principal and Kampsula the
accomplice in any of the charged crimes. To the contrary, the prosecutor urged the jury,
“I’m standing here before you to say though [that] Mr. Kampsula did each and every one
of these acts. He is guilty himself of Theft, Theft by Swindle, and the Aggravated Forgery.”
The lack of any evid ence or suggestion that anyone besides Kampsula was the principal
offender precludes any reasonable likelihood that the jury found Kampsula guilty as an
accomplice.
IV
Kampsula argues finally that the combined, multiple alleged errors warrant reversal
of all his convictions. The argument fails because we have identified only one prejudicial
error and have corrected it. We reverse Kampsula’s conviction of theft alone and remand
for a new trial on that charge.
Affirmed in part, reversed in part, and remanded.