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STATE OF MINNESOTA

IN SUPREME COURT

A19-1281

Court of Appeals Thissen, J.
Took no part, Chutich, J.
State of Minnesota,

Respondent,

vs. Filed: March 24, 2021
Office of Appellate Courts
Francios Momolu Khalil,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt , Senior Assistant
County Attorney, Linda M. Freyer, Assistant County Attorney, Megan Massie, Certified
Student Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.

Anna Light, Assistant Dakota County Attorney, Hastings, Minnesota; and

Kelsey R. Kelley, Assistant Anoka County Attorney, Anoka, Minnesota, for amicus curiae
Minnesota County Attorneys Association.

________________________

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S Y L L A B U S
1. The legislative definition of “mentally incapacitated,” as set forth in Minn.
Stat. § 609.341, subd. 7 (2020), does not include a person who is voluntarily intoxicated
by alcohol.
2. The district court’s erroneous jury instructions were not harmless beyond a
reasonable doubt.
Reversed and remanded.
O P I N I O N
THISSEN, Justice.
This case arises from an experience no person should ever have to endure. J.S. was
intoxicated after drinking alcohol and taking a prescription narcotic . She went to a bar
with a friend but was denied entry due to her intoxication . Appellant Francios Momolu
Khalil approached J.S. outside of the bar and invited her to accompany him to a supposed
party at a house . After arriving at the house, J.S. passed out and wok e up to find Khalil
penetrating her vagina with his penis. The question before us is whether Khalil’s conduct
is third-degree criminal sexual conduct: sexual penetration with another person when the
actor knows or has reason to know that the complainant is “mentally incapacitated.”
Our decision turns on the meaning of mentally incapacitated as defined by the
Legislature in Minn. Stat. § 609.341, subd. 7 (2020). The statute provides:
“Mentally incapacitated” means that a person under the influence of alcohol,
a narcotic, anesthetic, or any other substance, administered to that person
without the person’ s agreement, lacks the judgment to give a reasoned
consent to sexual contact or sexual penetration.

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Id. Specifically, we are asked to determine whether the phrase “administered to that person
without the person’s agreement” applies to alcohol. Id. In other words, we must decide
whether a person can be mentally incapacitated under the statute when the person
voluntarily ingests a lcohol, or whether the alcohol must be administered to the person
without his or her agreement.
We hold that a person is mentally incapacitated under the definition adopted by the
Legislature in section 609.341, subdivision 7, when that person is “under the influence of
alcohol . . . administered to that person without the person’s agreement .”1 Consequently,
we reverse the decision of the court of appeals and remand to the district court for a new
trial.
FACTS
The parties do not dispute the relevant facts. On the evening of May 13, 2017, J.S.
consumed approximately five shots of vodka and one pill of a prescription narcotic . She

1 We are mindful of and concerned with the fact that, as the Minnesota County
Attorneys Association points out in its amicus brief, nearly half of all women in the United
States have been the victim of sexual violence in their lifetime—including an estimated 10
million women who have been raped while under the influence of alcohol or drugs. With
this level of sexual violence, legislatures across the country have enacted statutes aimed at
prioritizing consent and protecting intoxicated victims of rape and sexual assault,
regardless of how the victim became intoxicated. See, e.g., Wash. Rev. Code § 9A.44.010
(defining “mental incapacity” —for the purpose of second -degree rape under Wash. Rev.
Code § 9A.44.050 —as a “condition existing at the time of the offense which prevents a
person from understanding the nature or consequences of the act of sexual intercourse
whether that condition is produced by illness, defect, the influence of a substance or from
some other cause”) . These statutory definitions prot ect intoxicated victims of rape
regardless of how they became intoxicated. But today we undertake the task of interpreting
the definition of “mentally incapacitated” that the Minnesota Legislature enacted in Minn.
Stat. § 609.341, subd. 7 (2020).

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then traveled to the Dinkytown neighborhood of Minneapolis with her friend S.L. U pon
arriving, J.S. attempted to enter a local bar but was denied entry by the bouncer because
she was intoxicated. Shortly thereafter, Khalil and two other men approached J.S. and S.L.
outside the bar and invited them to a party. Khalil then drove the group to a house in North
Minneapolis, arriving in the early morning hours of May 14, 2017. There was no party at
the house.
S.L. testified that, after walking into the house, J.S. immediately laid down on the
living room couch and soon fell asleep. J.S. testified that she “blacked out” due to her
intoxication shortly after arriving at the house and did not clearly remember lying down on
the couch. J.S. woke up some time later to find Khalil penetrating her vagina with his
penis. She said , “No, I don’t want to,” to which he replied , “But you’re so hot and you
turn me on.” J.S. then lost consciousness and woke up at some point between 7 and 8 a.m.
with her shorts around her ankles. She retrieved S.L. from another room and the two called
a Lyft and left the house. During the ride, J.S. told S.L. that she had been raped. Later that
day, J.S. went to Regions Hospital in St. Paul to have a rape kit done.
On May 18, 2017, J.S. contacted the Minneapolis police department to report the
incident. The police c onducted an investigation and the State charged Khalil with one
count of third -degree criminal sexual conduct involving a mentally incapacitated or
physically helpless complainant.2 See Minn. Stat. § 609.344, subd. 1(d) (2020). The State

2 The State also charged Khalil with three additional counts arising from the same
alleged conduct: first -degree criminal se xual conduct involving personal injury and a
mentally incapacitated or physically helpless complainant in violation of Minn. Stat.

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chose not to charge Khalil with fifth -degree criminal sexual conduct which criminaliz es
nonconsensual sexual contact, a charge both the State and Khalil conceded would cover
the conduct alleged in this case but which is a gross misdemeanor rather than a felony for
a first offense. See Minn. Stat. § 609.3451 (2020).
At trial, the district court issued jury instructions, which stated in part:
Mr. Khalil knew or had reason to know that [J.S.] was mentally incapacitated
or physically helpless.

A person is mentally incapacitated if she lack s the judgment to give
reasoned consent to sexual penetration due to the influence of alcohol, a
narcotic, or any other substance administered without her agreement.[3]

During deliberations, the jury requested clarification on the mental incapacitation
element of criminal sexual conduct.4 In the questions to the district court, the jury outlined

§ 609.342, subd. 1(e)(ii) (2020); first -degree criminal sexual conduct involving physical
injury and use of force or coercion in violation of Minn. Stat. § 609.342, subd. 1(e)(i); and
third-degree criminal sexual conduct involving use of force or coercion in violation of
Minn. Stat. § 609.344, subd. 1(c) (2020). At trial, the jury acquitted Khalil on these three
additional counts; only the conviction for third-degree criminal sexual conduct involving a
mentally incapacitated or physically helpless complainant is before us on appeal.

3 This instruction do es not align precisely with the definition of mentally
incapacitated as set forth in Minn. Stat. § 609.341, subd. 7. Critically, th is instruction (a
written copy of which was available to the jury during its deliberations) omit s the comma
between “any other substance” and “administered” present in the statute. Id. This may
explain, at least in part, the jury’s confusion about the proper interpretation of the definition
of mentally incapacitated.

4 As the court of appeals noted, although the jury asked about the meaning of mentally
incapacitated as it related to first-degree criminal sexual conduct involving personal injury
and a mentally incapacitated or physically helpless complainant, its question about the
proper interpretation of mentally incapacitated also applied to Khalil’s charge of third -
degree criminal sexual conduct involving a mentally incapacitated or physically helpless
complainant. See State v. Khalil , 948 N.W.2d 156, 163 n.1 (Minn. App. 20 20); see also

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two potential readings of the definition of mentally incapacitated . The first reading
interpreted the definition as requiring J.S. to be under the “influence of alcohol [J.S.]
administered herself or [the] influence of [a] narcotic J.S. administered herself or a thing
administered [without] her agreement.” The second reading required J.S. to be under the
influence of “alcohol, narcotic, or another substance[,] none of which had been
administered with her knowledge.”
In other words, the jury sought to clarify whether it was sufficient that J.S.
voluntarily consumed the alcohol or whether Khalil or another person had to have
administered the alcohol to J.S. without her agreement for her to qualify as mentally
incapacitated under Minn. Stat. § 609.341, subd. 7. Over Khalil’s objection, the district
court instructed the jury that the first reading of the statute was correct, stating: “[Y]ou can
be mentally incapacitated following consumption of alcohol that one administers to one’s
self or narcotics that one administers to one’s self or separately something else that’s
administered without someone’s agreement.” The jury then found Khalil guilty of third -
degree criminal sexual conduct.
On appeal, Khalil challenged the validity of the jury instructions, arguing that the
district court erred by instructing the jury on the definition of mentally incapacitated the
way it did. State v. Khalil, 948 N.W.2d 156, 163 (Minn. App. 2020). In a divided opinion,

Minn. Stat. § 609.341, subd. 1 (2020) (applying the definitions laid out in the statute to the
five degrees of criminal sexual conduct). We agree.

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the court of appeals rejected Khalil’s argument a nd affirmed his conviction .5 Id. at 170.
We granted review.
ANALYSIS
The jury convicted Khalil of third-degree criminal sexual conduct under Minn. Stat.
§ 609.344, subd. 1(d), which states in relevant part:
A person who engages in sexual penetration with another person is guilty of
criminal sexual conduct in the third degree if any of the following
circumstances exists: . . .
(d) the actor knows or has reason to know that the complainant is
mentally impaired, mentally incapacitated, or physically helpless[.]

(Emphasis added.) Consequently, to convict Khalil of third-degree criminal sexual conduct
under section 609.344, subdivision 1(d), the State was required to prove that when Khalil
sexually penetrated J.S., he knew or had reason to know that J.S. was in a particular state;
namely, that J.S. was mentally incapacitated.
It is cert ainly true that a commonsense understanding of the term mentally
incapacitated could include a person who cannot exercise judgment sufficiently to express
consent due to intoxication resulting from the voluntary consumption of alcohol. But here,
we do not look at the ordi nary, commonsense understanding of mentally incapacitated
because the Legislature expressly defined the term in the general definitions section of
Minnesota’s criminal sexual conduct statutes, Min n. Stat. §§ 609.341 –.3451 (2020). See
U.S. Jaycees v. McClu re, 305 N.W.2d 764, 766 (Minn. 1981) (“The legislature defines a

5 Khalil raised several other issues related to impeachment, discovery, and
sentencing. Those arguments were rejected by the court of appeals and are not before us.
See Khalil, 948 N.W.2d at 170.

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term only because it intends in some measure to depart from the ordinary sense of that
term. Thus, there is a presumption that we are not to substitute the literal, ordinary meaning
of [a term] for the definition the legislature has provided.”). For the purpose of criminal
sexual conduct offenses, “ ‘[m]entally incapacitated ’ means that a person under the
influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that
person without the person’s agreement , lacks the judgment to give a reasoned consent to
sexual contact or sexual penetration.” Minn. Stat. § 609.341, subd. 7.
The State does not claim that Khalil knew or had reason to know that J.S. was under
the influence of alcohol administered to J.S. without her agreement. There is no evidence
to support such a claim. On the other hand, Khalil does not dispute that there is sufficient
evidence in the record that he knew or had reason to know that J.S. was under the influence
of alcohol. Accordingly, our decision in this appeal turns on whether the Legislature’s
definition of mentally incapacitated includes a state of mental incapacitation caused by the
consumption of alcohol, voluntary or not, or whether it is limited to circumstances where
the state of mental incapacitation results from consumption of alcohol administered to the
complainant involuntarily without her agreement.
The State urges us to read the definition of mental ly incapacitated like the district
court did when it instructed the jury in response to the jury’s questions: mentally
incapacitated means that a person under the influence of alcohol, however consumed, lacks
the judgment to give a reasoned consent to sexual contact or sexual penetration. In contrast,
Khalil challenges the district court’s interpretation of th e Legislature’s definition of
mentally incapacitated and urges us to read the statute as follows: mentally incapacitated

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means that a person under the influence of alcohol, administered to that person without the
person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or
sexual penetration.
I.
The legal issue before us arises because of the district court’s instruction to the jury
on the meaning of mentally incapacitated. Although district courts enjoy “considerable
latitude in selecting jury instructions,” the instructions “must fairly and adequately explain
the law of the case and not materially misstate the law.” State v. Peltier, 874 N.W.2d 792,
797 (Minn. 2016).6 The question of whether the district court materially misstated the law
requires us to interpret the statutory definition of mentally incapacitated, which is a matter
subject to de novo review. Vill. Lofts at St. Anthony F alls Ass ’n v. Hous. Partners III-
Lofts, LLC, 937 N.W.2d 430, 435 (Minn. 2020). The purpose of statutory interpretation is
to “ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2020).
Our deference to the intention of the Legislature is due not only to the section 645.16
mandate from the Legislature itself . It also reflects a structural understanding that
legislators are the elected representatives of the people and that legislative bodies are

6 The fact that Khalil challenges the district court’s supplemental instructions issued
in response to a question from the jury does not alter our analysis. See, e.g., State v. Spence,
768 N.W.2d 104, 106 –08 (Minn. 2009) (conducting routine statutory interpretation
analysis based on the district court’s supplemental jury instructions).

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institutionally better positioned than courts to sort out conflicting interests and information
surrounding complex public policy issues.7

7 A good example of the unique institutional capacity of the Legislature (as compared
with the judiciary) to sort out complex policy issues is the work currently underway to
amend Mi nnesota’s criminal sexual conduct statutes, including revisions to address the
Legislature’s concern about a potential gap concerning sexual penetration of, or sexual
contact with, voluntarily intoxicated persons.
In 2019, bills were introduced in the Legislature to amend the definition of mentally
incapacitated to include voluntarily intoxicated persons. See S.F. 1786, § 1, 91st Minn.
Leg., 2019 Reg. Sess. (first engrossment) (amending the definition of mentally
incapacitated to add new language after the phrase “administered to that person without the
person’s agreement” to include persons who are “significantly impaired by alcohol, a
narcotic, anesthetic, or any other substance”); H.F. 480, § 3, 91st Minn. Leg., 2019 Reg.
Sess. (as introduced) (amendin g the definition of mentally incapacitated to delete the
phrase “administered to that person without the person’s agreement”); see also S.F. 1786,
§ 2, 91st Minn. Leg., 2019 Reg. Sess. (as introduced) (making similar revisions to the
definition of physically helpless in Minn. Stat. § 609.341, subd. 9).
The proposed changes to the definition of mentally incapacitated were not enacted,
but the Legislature formed in session law a Criminal Sexual Conduct Statutory Reform
Working Group. Act of May 24, 2019, 1st Spec. Sess., ch. 5, art. 4, § 21, 2019 Minn. Laws
547, 1001 –02. The Legislature charged the Reform Working Group with reviewing,
assessing, and making specific recommendations for amendments to Minnesota’s criminal
sexual conduct laws. Id. The Legisl ature expressly directed that the Reform Working
Group include a wide variety of stakeholders. Id. at 1001. Eventually, a diverse group of
74 individuals served as members of the Reform Working Group. Criminal Sexual
Conduct Statutory Reform Working Group, Report to the Minnesota Legislature at 38 (Jan.
2021) (App. 2). The Reform Working Group met on numerous occasions, held public
hearings, and formed several subcommittees, including subcommittees on consent and
capacity. Id. at 3.
In January 2021, as this case was pending before us, the Reform Working Group
issued its Report to the Legislature that recommended amendments to Minnesota’s criminal
sexual conduct statutes to address voluntary intoxication. The Reform Working Group
proposed either to (1) add a new subdivision (b) to the definition of mentally incapacitated
in section 609.341, subdivision 7, provid ing “that a person is under the influence of an
intoxicating substance to a degree that renders them incapable of consenting or incapable
of appreciating, understanding, or controlling the person’s conduct” or, alternatively, (2)
create specific felony crimes of third -degree and fourth -degree criminal sexual conduct
where

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If the Legislature’s intended meaning is clear from the text of the statute, we apply
that meaning and not what we may wish the law was or what we think the law should be .
State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019) (noting that when interpreting a statute,
we first determine whether the lan guage of the statute is clear, and if it is, we follow the
plain meaning); Axelberg v. Comm’r of Pub. Safety, 848 N.W.2d. 206, 212 (Minn. 2014);
Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 438 (Minn. 2009) (stating that when the
text of a statute is clear “[w]e cannot rewrite a stat ute under the guise of statutory
interpretation”). A text is unclear or ambiguous only when it is susceptible to multiple
reasonable interpretations. Vill. Lofts, 937 N.W.2d at 435 . We hold that the definition of
“mentally incapacitated” in section 609.341, subd. 7, is susceptible to only one reasonable
interpretation; namely, that alcohol causing a person to lack judgment to give a reasoned
consent must be administered to the person without the person’s agreement.
A.
We start with the text, structure, and punctuation of Minn. Stat. § 609.341, subd. 7.
See State v. Pakhnyuk, 926 N.W.2d 914, 920–21 (Minn. 2019). Once again, the Legislature
defined mentally incapacitated in Minn. Stat § 609.341, subd. 7 as follows:

the actor has the intent (or purpose) to have sexual penetration/contact wi th
the complainant while the actor knows (or has actual knowledge) that the
complainant is under the influence of an intoxicating substance to a degree
that renders them incapable of consenting or incapable of appraising or
controlling the complainant’s conduct.
Id. at 24, 33–34 (third-degree penalty where penetration is proven; fourth -degree penalty
where sexual contact is proven); see also id. at 12 –13 (discussing proposed changes).
Legislation was introduced in the 2021 legislative session to enact proposed changes. H.F.
707, § 1, 92d Minn. Leg., 2021 Reg. Sess. (proposing to enact the first alternative described
above); S.F. 1683, § 1, 92d Minn. Leg., 2021 Reg. Sess. (companion file).

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“Mentally incapacitated” means that a person under the influence of alcohol,
a narcotic, anesthetic, or any other substance, administered to that person
without the person’s agreement , lacks the judgment to give a reasoned
consent to sexual contact or sexual penetration.

The text, structure, and punctuation of the Legislature’s one-sentence definition of
mentally incapacitated supports Khalil’s interpretation of the statute; namely, that a person
is mentally incapacitated only if under the influence of alc ohol administered to the person
without the person’s agreement. The sentence is structured as an easily digestible series of
similar nouns that describe intoxicating substances (alcohol, narcotic, anesthetic, or any
other substance) followed by a qualifier (“administered to that person without the person’s
agreement”) that, as we discuss below, sensibly applies to each noun. See Stay , 935
N.W.2d at 432 (concluding that a qualifier applied only to the closest antecedent phrase
where the two preceding phrases were not parallel and “d[id] not form an easy, digestible
list”). This textual structure is a classic example of the series qualifier rule of grammar,
which states that “[w]hen there is a straightforward, parallel construction that involves all
nouns or verbs in a series, a . . . [qualifier] normally applies to the entire series.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012).
Moreover, it takes little mental energy to process the individual nouns in the list
present in the definition of mentally incapacitated, making it easy to apply the qualifier
across them all. See, e.g., Lockhart v. United States , ___ U.S. ___, 136 S. Ct. 958, 96 3–
65 (2016) (noting that a qualifier generally applies to the closest antecedent clause “where
it takes more than a little mental energy to process the individual entries in the list, making

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it a heavy lift to carry the [qualifier] across them all,” as opposed to a situation where the
statutory language comprises a “single, integrated list”).
It is also significant that the qualifier here (“administered to that person without the
person’s agreement”) is set off from the series of similar nouns by a comma. “A qualifying
phrase separated from antecedents by a com ma is evidence that the qualifier is supposed
to apply to all the antecedents instead of only to the immediately preceding one.” 2A
Norman J. Singer & Shambie Singer, Sutherland Statutes and Statutory Construction
§ 47.33 (7th ed. 2007) . Accordingly, t he inclusion of a comma between the last in the
series of intoxicating substances and “administered to that person without the person’s
agreement” supports Khalil’s reading that the qualifier modifies all four of the substances
in the preceding series: “alcohol, a narcotic, anesthetic, or any other substance .” Minn.
Stat. § 609.341, subd. 7.
Our precedent supports this interpretation of the statutory text . In In re Butler, we
interpreted Minn. Stat. § 524.6–204(a) (2010), which provided:
Sums remaining on deposit at the death of a party to a joint account belong
to the surviving party or parties as against the estate of the decedent unless
there is clear and convincing evidence of a different intention , or there is a
different disposition made by a valid wi ll as herein provided, specifically
referring to such account.

803 N.W.2d 393, 397 (Minn. 2011). We held that the qualifying phrase “specifically
referring to such account” applied to both preceding phrases because, among other things,
a comma separated the qualifier from both of the phrases. Id. at 397–98.

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B.
As with any rule of grammar or syntactic canon, however, the series qualifier rule
“can be defeated by other indicia of meaning , including competing canons.” Pakhnyuk,
926 N.W.2d at 922. The State makes several arguments from the text of section 609.341,
subdivision 7, and the broader structural context of Minnesota’s c riminal sexual conduct
statutes, asserting that the qualifier “administered to that person without the person’s
agreement” should apply only to “any other substance” and not to the entire string of nouns
(“alcohol, a narcotic, anesthetic, or any other substance”) that precede s it. We conclude
that the State’s reading of the definition of mentally incapacitated i s not supported by the
statute’s text.
1.
The State first urges us to apply the last antecedent rule , “which instructs that a
limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows
. . . .” Larson v. State , 790 N.W.2d 700, 705 (Minn. 2010). We do not agree that this
general grammatical presumption provide s insight into the meaning of section 609.341,
subdivision 7, which is made up of a very simple and straightforward list of parallel nouns
followed by a qualifier offset from the list of nouns by a comma. No Minnesota case that
we have found applies the last antecedent rule to interpret such a similarly structured
statutory text. Further, as we discuss below, the qualifier “administered to that person
without the person’s agreement” makes sense when applied to each of the nouns in the list.

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2.
The State also offers three arguments focused on words used in the text of section
609.341, subdivision 7, to support its interpretation that the phrase “administered to that
person without the person’s agreement” should not be read to apply to alcohol. We do not
find these arguments convincing.
The State first asserts that Khalil’s reading of the statute is incorrect because people
normally do not speak of “administering” alcohol in everyday speech. It is not uncommon,
however, for the word “administer” to be paired with the word “alcohol” in the context of
criminal sexual conduct statutes. For instance, drafter commentary on proposed revisions
to the Model Penal Code’s sexual assault provisi ons describes alcohol as a substance that
can be administered. See Model Penal Code § 213.3 (Am. L. Inst., Discussion Draft No. 2
2015) (“Although the actual frequency of such incidents is unknown, furtive administration
of alcohol . . . occurs sufficiently often that a spec ial provision is warranted.”); see also
Patricia J. Falk, Rape by Drugs: A Statutory Overview and Proposals for Reform, 44 Ariz.
L. Rev. 131, 145 (2002) (noting that “[a]lthough most alcohol-related cases concerned the
rape of victims who were voluntarily intoxicated, some involved defendant administration
of alcohol to the victim”); State v. Anderson, 94 N.W. 681, 682 (Minn. 1903) (observing
in a parental rights case that the record showed that the father was “addicted to the use of
intoxicating liquors, which he occasionally administered to his little girl”).
Another significant flaw in this argument is that the State plucks the single word
“administered” out of the context of the entire phrase “administered to that person without
the person’s agreement.” Minn. Stat. § 609.341, subd. 7. The point of the qualifier here is

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to distinguish one specific circumstance under which a person consumes something—when
the thing consumed is given to the person without the person’s knowledge or agreement—
from all other circumstances. Even the State would not disagree with this reading of the
phrase as it applies to “any other substance.”8 In view of that broader context, it would not
be at all unusual to say that a person given alcohol surreptitiously (for example , when
someone “spikes” a punch bowl at a party) was administered alcohol without the person’s
agreement.
The error in isolating the word “administered” from the rest of the qualifier is also
demonstrated when one considers the other nouns in the series to which the qualifier
applies. Once again, the State is arguing that the word administered cannot apply to alcohol
because people do not commonly refer to alcohol as being administered. But the State
employs that analysis to support its main argument that the qualifier “administered to that

8 Another example demonstrating that the pairing of alcohol and t he word
administered is not unusual is found in Minnesota’s own statutory law. T he concept of
administering intoxicating substances, including alcohol, has been used in precisely this
way in this exact context for most of the State’s history. See, e.g., Minn. Gen. Stat., Penal
Code, tit. 10, ch. 2, § 235(4) (188 9) (defining one form of rape as sexual penetration with
a female “[w]hen her resistance is prevented by stupor or by weakness of mind, produced
by an intoxicating narcotic or anaesthetic agent, administered by or with the privity of the
defendant”); Minn. Gen. Stat. ch. 86, tit. 10, § 6191 (1891) (same); Minn. Rev. Laws ch.
98, § 4926 (1905) (same); Minn. Gen. Stat. ch. 98, § 8655 (1913) (same); Minn. Gen. Stat.
ch. 98, § 10124 (1923) (same); Minn. Stat. § 617.01(4) (1941) (same). In State v.
Dombroski, we interpreted these provisions to criminalize sexual penetration when the
complainant is “under stupor from liquor or narcotics administered to her by or with the
privity of” the defendant. 176 N.W. 985, 986 (Minn. 1920); see also State v. Winger, 282
N.W. 819, 820 (Minn. 1938) (quoting an indictment alleging that the defendant assaulted
a female child where her resistance was “prevented by stupor and weakness of mind which
had been then and there produced by intoxicating liquor administered by and with the
privity of” the defendant).

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person without the person’s agreement” modifies only the final noun in the series: “any
other substance.” Minn. Stat. § 609.341, subd. 7. The State’s position is that the qualifier
also does not modify the terms “narcotic” or “anesthetic.” But the State does not—and
cannot credibly—argue that the word “administered” does not naturally fit with the words
narcotic or (perhaps especially) anesthetic. Thus, the State’s narrow focus on the purported
linguistic ill fit between the words alcohol and administered does not logically support the
ultimate conclusion that the State asks us to reach; n amely, that “administer ed to that
person without the person’s agreement” applies only to “any other substance.”
The State’s second argument focuses on the other nouns included in the series set
forth by the Legislature in section 609.341, subd ivision 7. The State points out that if the
phrase “administered to th at person without the person’s agreement” applie d to all of the
terms in the series, it would create gaps in the statute. For instance, if a person who
consents to the administration of an anesthet ic such as “laughing gas” when undergoing a
medical procedure is sexually penetrated by a medical professional performing the
procedure (and the anesthetic resulted in the person lacking the judgment to give a reasoned
consent), the medical professional would likely face no criminal liability under the mental
incapacitation provision. The State argues that such a result surely could not have been the
intent of the Legislature.
The State’s argument is not really textual in character. The State does not argue that
the plain text itself makes no sense; in other words, that an anesthetic cannot be sensibly
“administered to that person without the person’s agreement.” Minn. Stat. § 609.341, subd.

18
7. Rather, the State is arguing that the Legislature could not have intended what the words
say.
We rejected a very similar argument in State v. Carson , where the defendant was
convicted of third-degree driving while impaired (DWI) for operating a vehicle under the
influence of a hazardous substance under Minn. Stat. § 169A.03, subd. 9 (2016). 902
N.W.2d 441, 442 (Minn. 2017). An analysis of the defendant’s blood showed the presence
of the chemical 1,1-difluoroethane (DFE). Id. at 442–43. The statute defined a hazardous
substance as “any chemical or chemical compound that is listed as a hazardous substance
in rules adopted under chapter 182.” Id. at 444. We held that because DFE was not listed
in the rule, it was not a hazardous substance for the purpose of the hazardous substance
DWI offense. Id. at 445–46. We then stated:
We acknowledge that based on our holding today, a driver dangerously
intoxicated by DFE is not criminally liable under the plain language of the
current DWI statutes. The dissent argues that the Legislature could not have
intended this outcome. In other words, the dissent concludes that the
Legislature could not have intended to criminalize the operation of a motor
vehicle while the driver is knowingly under the influence of only those
chemical compounds that are explicitly listed as hazardous substances under
the [relevant] rules. But this public policy concern should be directed to the
Legislature because we must read this state’s laws as they are, not as some
argue they should be.

Id. at 446 (citation omitted) (internal quotation marks omitted). So too here. If a gap in
the statute exists with regard to anesthetics, filling in that gap is a job for the Legislature.
The State offers one more argument based on the language of section 609.341,
subdivision 7. It asserts that the word “any” in the phrase “any other substance” breaks the
link between the qualifier “administered to that person without the person’s agreement”

19
and the nouns alcohol, narcotic, and anesthetic. The State asserts that the word “any” is a
determiner in grammatical parlance and use of a determiner may limit the backwards reach
of a qualifier from applying to earlier terms in a series. Scalia & Garner , supra, at 149.
The State’s argument, however, is weakened by the secondary source on which it relies.
Scalia and Garner acknowledge that “the insertion of a determiner before the second item
[in a list] tends to cut off the modifying phrase so that its backward reach is limited,” but
then immediately go on to note that the “effect is not entirely clear” before providing three
examples, none of which use the determiner “any.” Id.
More importantly, the State’s explanation for why the qualifier “administered to that
person without the person’s agreement” is textually necessary to limit circumstances under
which a person becomes mentally incapacitated by “any other substance” but not the other
substances in the series is not compelling. The State claims that without limiting the words
“any other substance ,” the definition of mentally incapacitated c ould criminalize sexual
contact with a person under the influence of caffeine (an example the State offered at oral
argument) or any other nonintoxicating substance. Alcohol, narcotics, and anesthetics, on
the other hand, need no limitation because they are plainly intoxicating.
Yet at oral argument , the State conceded that the final phrase of the mentally
incapacitated definition in section 609.341, subd ivision 7—“lacks the judgment to give a
reasoned consent to sexual contact or sexual penetration”—requires the State to prove that
the influence of the consumed substance deprived the person consuming it of judgment to
give a reasoned consent. Accordingly, “any other substance” is already limited by the final
phrase in the definition to substances, the consumption of which can deprive the consuming

20
person of judgment to give a reasoned consent. The qualifier “administered to that person
without the person’s agreement” is not textually necessary to achieve that outcome.
Moreover, the qualifier “administered to that person without the person’s agreement” does
not itself actually limit the words “any other substance” to intoxicating substances , the
purpose that the State suggests for this qualifier. For example, if a person is served regular
coffee instead of decaffeinated coffee without her knowledge, the person is administered a
substance, but it is highly unlikely that caffeine is intoxicating such that it will exert any
impact on complex judgment and reasoned decision-making.
Instead, we believe Khalil offers the more reasonable explanation for the inclusion
of the word “any” in “any other substance” by arguing that the Legislature intended to
capture all substances , the consumption of which could deprive a person of judgment to
give a reasoned consent. Rather than naming each substance specifically (a list that could
change over time as new intoxicating substances emerge), the Legislature used catch -all
language. W e generally recognize that statutes are commonly constructed to include
specific items followed by a general catch -all term intended to capture the same kind or
class of items as those specifically identified. See State v. Sanschagrin, 952 N.W.2d 620,
627 (Minn. 2020) (describing the ejusdem generis canon of construction).
Thus, the State’s arguments about the nature of the word “administered,” the scope
of the qualifier “administered to that person without the person’s agreement,” the possible
statutory gaps created by Khalil’s interpretation of the statute, and the meaning of “any” in
“any other substance” do not reasonably support its reading of the definition of mentally
incapacitated.

21
3.
Finally, the State looks beyond the definition of mentally incapa citated in section
609.341, subdivision 7, to other parts of Minnesota’s criminal sexual conduct statutes to
support its position that the qualifier “administered to that person without the person’s
agreement” does not apply to the word “alcohol.”
First, the State focuses on the mental-state requirement in Minn. Stat. § 609.344,
subd. 1(d) , the basis for Khalil’s conviction here , which provides that the defendant
commits third-degree criminal sexual conduct if he “knows or has reason to know” that the
complainant is mentally incapacitated. Id. The State claims that, because the third-degree
felony crime focuses on what the defendant knew or should have known about the
complainant’s condition, rather than on how (voluntarily or involuntarily) the complainant
got into that condition, the “how” is irrelevant.9

9 The State supports this argument by observing that “ mentally incapacitated” is one
of four states set forth in the definition of third-degree criminal sexual conduct, Minn. Stat.
§ 609.344, in which a complainant is legally unable to consent to sexual penetration. The
other three states are when the compla inant is (1) of various ages under the age of 18
(depending on the circumstances surrounding the sexual act); (2) “mentally impaired,”
meaning lacking judgment due to a developmental disability or psychiatric disorder, Minn.
Stat. § 609.341, subd. 6 (2020); or (3) unable to communicate due to physical helplessness,
Minn. Stat. § 609.341, subd. 9 (2020). See Minn. Stat. § 609.344, subd. 1(a)–(b), (d), (e)–
(g). The argument runs that the Legislature imposed criminal liability for sexual
penetration when the complainant falls into one of these three states despite the fact that
none of these circumstances of age , mental disability, or physical helplessness are within
the control of the defendant. Thus, the State reasons, because voluntary intoxication is
similarly a state beyond the control of the defendant, sexual penetration of a person who
cannot consent due to voluntary intoxication must also constitute third -degree criminal
sexual conduct. Accordingly, by default, the term mentally incapacitated must in clude
those persons who are voluntarily intoxicated.

22
The State , however, places the cart before the horse in making th is argument.
Indeed, the entire dispute in this case is about the “how”: is the legislatively defined term
mentally incapacitated limited to circumstances where the alcohol was administered to the
complainant without the complainant’s agreement or does it also include circumstances
where the complainant voluntarily consumed alcohol?
If the proper interpretation of the text of section 609.341, subd ivision 7, is limited
to cases where alcohol is administered to the complainant without her agreement, then the
state of the complainant that the defendant must have known or had reason to know under
section 609.344, subdivision 1(d), is just that—the complainant was administered alcohol
without her agreement and lacked the judgment to give a reasoned consent to sexual
penetration. On the other hand, i f the proper interpretation of the text of section 609 .341,
subdivision 7, covers cases where the complainant voluntarily consumed the alcohol, then
the state of the complainant that the defendant must have known or had reason to know
under section 609.344, subdivision 1(d), is that the complainant was under the influence of
alcohol regardless of the circumstances under which it was consumed and lacked the

The State’s argument is flawed because it pays no attention to the actual language
of section 609.341, subdivision 7. The assertion simply assumes that because age and the
definitions of mental impair ment and physically helpless have the characteristic of being
states beyond the control of the defendant, mentally incapacitated must also be read to
include any state of intoxication over which the defendant has no control. That is a logical
leap too far . The argument also ignores that, unlike age, or the statutory definitions of
physical helplessness and mental impairment, the definition of mentally incapacitated
actually does include language signaling that the Legislature was concerned (at least in
part) about circumstances where the complainant’s state was within the control of the
defendant: the qualifier “administered to that person without the person’s agreement ,”
which is at the heart of this dispute.

23
judgment to give a reasoned consent to sexual penetration. The mental state “knows or has
reason to know” in the definition of third -degree criminal sexual conduct provides no
information that tells us which of the two int erpretations is correct since the mental -state
element could be applied regardless of which interpretation is correct. Minn. Stat.
§ 609.344, subd. 1(d). The State simply assumes that a p erson may become mentally
incapacitated (as defined by the Legislature in section 609.341, subd ivision 7) by
voluntarily consuming alcohol.
The State also more broadly argues that reading the definition of mentally
incapacitated to mean that alcohol must be administered to the complainant without her
consent is inconsistent with the overall context of the prohibition in Minnesota’s criminal
sexual conduct statutes on nonconsensual sex. 10 Underlying the State’s argument is the
insistence that, because a person may be unable to exercise the judgment necessary to
consent due to the voluntary consumption of alcohol, sexual penetration with a complainant
who cannot consent due to voluntary intoxication must be a felony (either first -degree or
third-degree criminal sexual conduct). Both the State and Khalil agree that, under current
law, such conduct would be fifth -degree criminal sexual conduct —a gross misdemeanor

10 As a preliminary matter, the State’s argu ment seems to rely not solely on the
structure of the statute, but on consideration of the purpose of the statute and the policy
issue to be remedied. Such considerations are proper if we determine that the statutory text
is unclear. Minn. Stat. § 645.16 (2020). However, because we consider the text of a
statutory provision within the broader statutory context when interpreting its meaning and
scope and because the line between the whole statute canon, see State v. Townsend , 941
N.W.2d 108, 110 (Minn. 2020) (“Because the meaning of a phrase often depends on how
it is being used in the context of the statute, we examine words and phrases in context.”),
and the inquiries into purpose and problem to be remedied can be fuzzy, we address the
State’s argument here.

24
for a first time offense. Minn. Stat. § 609.3451, subds. 1–2. Whether conduct like Khalil’s
should constitute a higher-level offense is not a question we have authority to answer. See
State v. Soto , 378 N.W.2d 625, 63 0 (Minn. 1985) (“The enactment of criminal la ws, the
scope of those laws, and the sanctions for their violation, are solely within the legislative
function and province.”).
The State is certainly correct that Minnesota’s criminal sexual conduct statutes
prohibit nonconsensual sexual penetration and sexual contact, whereas consensual sexual
acts are not criminalized. See Minn. Stat. §§ 609.341–.3451. But that general proposition
does not compel the conclusion that the State asks us to reach; namely, that because
Minnesota’s criminal sexual conduct statutes prohibit nonconsensual sexual penetration
and sexual contact, it follows that the Legislature’s definition of mentally incapacitated
must include voluntary intoxication.
Indeed, t he State ignores the overall structure of Minnesota’s criminal sexual
conduct statutes. In structuring the law, the Legislature made the conscious policy choice
that not all cases of nonconsensual sexual penetration and sexual contact would be treated
the same by the criminal justice system. The Legislature has chosen to enact five distinct
degrees of criminal sexual conduct: four felony-level crimes and one gross -misdemeanor
crime (for first time offenses). Minn. Stat. §§ 609.342–.3451. And that is squarely within
the power of the Legislature; it is not our place to question those choices . Within the
limitations imposed by the federal and state constitutions, the Legislature has the power to
define crimes and the punishment for crimes (including the terms for confinement and
parole), and the judiciary interprets and carries out those legislative commands . State v.

25
Ali, 855 N.W.2d 235, 253–54 (Minn. 2014); Schumann v. McGinn, 240 N.W.2d 525, 537
(Minn. 1976).
One major differentiator among the five degrees of criminal sexual conduct is
whether the actor engaged in sexual penetration (defined in Minn. Stat. § 609.341, subd.
12 (2020)) or in sexual contact (defined in Minn. Stat. § 609.341, subd. 11 (2020)).
Compare Minn. Stat. §§ 609.342, .344 (2020) (defining separately first- and third-degree
sexual conduct as sexual penetration accompanied by certain aggravating acts or with a
complainant of a certain age), with Minn. Stat. §§ 609.343, .345 (2020) (defining separately
second-degree and fourth-degree criminal sexual conduct as nonpenetrative sexual contact
accompanied by similar aggravating acts or with a complainant of the same certain age).
The Legislature also provided that sexual penetration or sexual contact should be
met with more serious opprobrium and punishment when accompanied by cert ain
aggravating acts or circumstances. For instance, sexual penetration or sexual contact with
a person under a certain young age leads to different punishment d epending on the age
difference between the actor and the complainant, the specific intent of the actor, and the
relationship of the actor and the complainant.11 Further, greater punishment is imposed for
sexual penetration when the complainant reasonably fears imminent great bodily harm,
when the actor is armed with a dangerous weapon, when the complainant suffers personal

11 See, e.g., Minn. Stat. §§ 609.342, subd. 1(a)–(b), (g)–(h); .343, subd. 1(a)–(b), (g)–
(h); .344, subd . 1(a) –(b), (e) –(g); .345, subd. 1(a) –(b), (e) –(g); see generally State v.
Holloway, 916 N.W.2d 338, 348 –50 (Minn. 2019) (upholding such differenc es under the
due process and equal protection clauses).

26
injury, and when the actor has a significant relationship with the complainant (for instance,
a parent, stepparent, or other close relative).12 Similarly, the Legislature imposed different
punishments for nonconsensual sexual penetration or sexual contact with a person who is
physically helpless (defined in Minn. Stat. § 609.341, subd. 9), mentally impaired (defined
in Minn. Stat. § 609.341, subd. 6) or mentally incapacitated, depending on whether the
complainant suffers physical injury as a result of the misconduct.13
In short, the State’s argument that the Legislature must have intended felony
classification for sexual penetration with a complainant who lacks the judgment to give a
reasoned consent due to voluntary intoxication does not withstand scrutiny in light of the
statutes’ structural complexity (five degrees of crime) and the differentiated punishments
imposed for various types of nonconsensual sexual penetration and sexual contact. More
to the point, in light of the myriad choices that the Legislature made when structuring
Minnesota’s criminal sexual conduct statutes as to what constitutes a criminal sexual
conduct crime and the proper punishment is for each criminalized act, the State’s intuition
that sexual contact with a voluntarily intoxicated person must be classified as a felony
provides no definitive information that helps us answer the question before us.

12 Compare Minn. Stat. § 609.342, subd. 1(c)–(e), (g)–(h) (first-degree criminal sexual
conduct for sexual penetration), with Minn. Stat. § 609.344 (third -degree criminal sexual
conduct for sexual pe netration); compare Minn. Stat. § 609.343, subd. 1 (c) –(e), (g)–(h)
(second-degree criminal sexual conduct for sexual contact), with Minn. Stat. § 609.345
(fourth-degree criminal sexual conduct for sexual contact); compare Minn. Stat.
§§ 609.342–.345, with Minn. Stat. § 609.3451 (fifth-degree nonconsensual sexual contact).

13 Compare Minn. Stat. § § 609.342, subd. 1(e), .343, subd. 1(e), with Minn. Stat.
§§ 609.344, subd. 1(d), .345, subd. 1(d).

27
Indeed, the State’s argument logically means that the Legislature should not have
inserted the qualifier “administered to that person without the person’s agreement” in the
definition of mentally capacitated at all. Minn. Stat. § 609.341, subd. 7. Under the State’s
meta-structural argument, there should be no difference between a person intoxicated by
alcohol and a person intoxicated by a substance other than alcohol, a narcotic, or anesthetic;
but it is not our role to question whether the Legislature made the correct decision. Further,
the structure of the criminal sexual conduct statutes, which provides differentiated
punishment for specific aggr avating circumstances, provides support for Khalil’s
interpretation of the statutory text. As outlined abov e, for decades the Legislature has
recognized that the act of surreptitiously administering an intoxicating substance to a
person such that the person was deprived of judgment to provide a reasoned consent is an
aggravating circumstance meriting more severe punishment. See supra note 8.
C.
In summary, we read the Legislature’s definition of “mentally incapacitated” to
unambiguously mean that substances (including alcohol) which cause a person to lack
judgment to give a reasoned consent must be administered to the person without the
person’s agreement. The State’s contrary interpretation unreasonably strains and stretches
the plain text of the statute . Accordingly, we conclude that section 609.341, subd ivision
7, means that a person under the influence of alcohol is not mentally incapacitated unless
the alcohol was administered to the person under its influence without that person’s
agreement.

28
Of course, we offer no judgment as to whether the Legislature’s choice about the
level of criminal liability and punishment that should be imposed on a person who sexually
penetrates another person knowing (or negligently unaware) that the other person lacks the
judgment to consent due to voluntary intoxication is appropriate. If the Legislature
intended for the definition of mentally incapacitated to include voluntarily intoxicated
persons, “it is the Legislature’s prerogative to reexamine the . . . statute and amend it
accordingly.” State v. Rick , 835 N.W.2d 478, 486 (Minn. 201 3), abrogated on other
grounds by State v. Thonesavanh, 904 N.W.2d 432 (Minn. 2017). It has done so recently
to address other perceived gaps in the criminal sexual conduct statutes. See, e.g., Act of
Aug. 1, 2019, 1st Spec. Sess., ch. 5, art. 4, § 5, 2019 Minn. Laws 947, 985–86 (amending
Minn. Stat. § 609.342, subd. 1(h) following our decision in State v. Ortega-Rodriguez, 920
N.W.2d 642 (Minn. 2018)).
II.
Having concluded that the district court erred when instructing the jury on the proper
meaning of Minn. Stat. § 609.341, subd. 7, we must now determine whether that error
entitles Khalil to a new trial . “A district court’ s failure to correctly instruct the jury
regarding an element of a charged offense requires a new trial, unless it can be established
beyond a reasonable doubt that the error did not” significantly impact the verdict. State v.
Struzyk, 869 N.W.2d 280, 290 (Minn. 2015); see also State v. Guzman , 892 N.W.2d 801,
816 (Minn. 2017) (“If we conclude that the alleged error was harmless, we need not decide
whether the district court erred in giving the instruction in question.”).

29
Here, the undisputed fact that neither party claims that Khalil administered anything
to J.S. prior to or during the events in question (or knew or had reason to know that someone
else administered a substance to J.S.) means that, but for the district court’s instruction that
Minn. Stat. § 609.341, subd. 7 , includes voluntarily intoxicated persons who consumed
alcohol, the jury may not have fou nd Khalil guilty. Mor e importantly, the jury requested
clarification on the definition of mentally i ncapacitated and it is impossible to know
whether the jury relied on the mental incapacitation or physical helplessness elements of
Minn. Stat. § 609.344, subd. 1(d), in arriving at its verdict. If we cannot tell from the
verdict whether the jury relied on erroneous instructions on one of two alternative elements
required for a conviction, “ we cannot conclude beyond a reasonable doubt that the
improper instruction did not have a significant impact on the verdict.” State v. Vance, 765
N.W.2d 390, 395 (Minn. 2009), overruled on other grounds by State v. Fleck, 810 N.W.2d
303, 311–12 (Minn. 2012). That is the precise situation in this case. While the jury may
have relied on a physical helplessness theory regardless of the district court’s erroneous
instruction as to the definition of mentally incapacitated, we do not know whether it did so.
Thus, because we cannot conclude be yond a reasonable doubt that the district court’s
erroneous jury instructions were harmless, Khalil is entitled to a new trial.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the district court for a new trial.
Reversed and remanded.
CHUTICH, J., took no part in the consideration or decision of this case.