State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-1626

Court of Appeals Chutich, J.

State of Minnesota,

Respondent,

vs. Filed: September 15, 2021
Office of Appellate Courts
Melvin DeVaughn Epps,

Appellant.

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Jennifer Workman Jesness,
Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

________________________
S Y L L A B U S
Appellant is not entitled to relief under the modified plain error doctrine because the
prosecutor’s statement during the State’s closi ng argument did not a ffect his substantial
rights.
Affirmed.
2
O P I N I O N
CHUTICH, Justice.
Appellant Melvin DeVaughn Epps asks us to apply the modified plain error doctrine
to determine whether a statement made by the prosecutor during the jury trial warrants a
reversal of his first-degree criminal sexual conduct conviction and a new trial. Specifically,
the prosecutor told the jury during the State’ s closing argument that a unanimous verdict
on one element of the offense—whether Epps acted with force or with coercion to
accomplish the act of sexual pene tration—was not required. E pps failed to object to the
prosecutor’s statement. The jury found him guilty . On appeal, Epps argued that the
prosecutor misstated the law. In a precedent ial opinion, the court of appeals determined
that the statutory phrase “force or coercion” in the first-degree criminal sexual conduct
statute, Minnesota Statutes section 609.342, subdivisi on 1(e)(i) (2018), sets forth
alternative means for comple ting the sexual penetration element of the offense;
accordingly, a unanimous jury verdict on whether Epps used force or used coercion is not
required. We granted Epps’s petition for review. Because we conclude that the modified
plain error doctrine is not satisfied in this case, we affirm.
FACTS
In 2019, Epps was charge d in Hennepin County with fi rst-degree criminal sexual
conduct under section 609.342, subdivision 1(e)(i). The Stat e alleged that Epps sexually
assaulted an adult female, E.P., in his car afte r he offered to give he r a ride back to her
motel from a Super Bowl party in downtown Minneapolis.
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The case proceeded to a jury trial. During the trial, E.P. testified that she traveled
with a friend from her home in Seattle to Mi nnesota to attend a Super Bowl party in
downtown Minneapolis. E.P. explained to the jury that she was worried about returning to
her motel in the suburbs after the party when Epps started a conversation with her and
offered to give her a ride. E.P. testified th at Epps drove her to an unknown motel in the
suburbs, parked his vehicle in a dark back area of the parking lot, and started kissing her.
When E.P. said no a nd pushed him away, she testified that Epps climbed on top of her,
pinned her down in the front passenger seat, and sexually assaulted her. E.P. testified that
she begged Epps to stop and tried to fight back, but he became aggressive and angry. E.P.
became fearful, thinking that Epps might kill her to cover up his sexual assault. When
Epps finished the assault and climbed back in to the driver’s seat of his vehicle, E.P.
unbuckled her seatbelt and fled. E.P. wa s interviewed by the police and agreed to
immediately go to the hospital for a sexual assault examination.
The State also presented testimony from E. P.’s friend, the law enforcement officers
who responded to the 911 call, the sexual assault nurse who examined E.P., and a law
enforcement investigator who subsequently interviewed Epps. One law enforcement
officer testified about the visible bruising on E.P.’s arms that looked like someone had
forcibly held onto her. The sexual assault nurse also testified that E.P. had bruises on her
wrist and arm that were consistent with some one forcibly holding onto her. Photographs
from the sexual assault examination, as well as photographs that E.P. later took herself,
show contusions on the outsides of E.P’s knees, scratches on her back, a contusion around
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her right shoulder blade, a hematoma near the cervical and thoracic regions of her spine,
bruising around her spine and her pelvic bones, and bruising around her wrists.
Epps testified and told the jury that he had consensual sexual intercourse with E.P.
twice, the first time in the lobby bathroom of a nearby apartment building and the second
time in the front seat of his car. Epps de nied sexually assaulting E.P. During cross-
examination, Epps was unable to explain how E.P. sustained her extensive injuries.
Before closing arguments, the district court instructed the jury according to standard
jury instructions. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction
Guides, Criminal, CRIMJIG 12.01, 12.03 (6th ed. 2019). The district court instructed the
jury on the use of the verdict form:
If you find the defendant guilty you will have an ad ditional issue to decide,
and the issue will be put to you in the form of questions on the verdict form.
The questions are: Did the defendant use force in the commission of the
offense? Did the defendant use coercion in the commission of the offense?
Did the defendant use both force and coercion in the commission of the
offense?

The district court cautioned the jury: “If an attorney’s argument contains any statement of
the law that differs from the law I give you, di sregard the statement.” Finally, the district
court told the jury that “to re turn a verdict, whether guilty or not guilty, ea ch juror must
agree with that verdict” because it “must be unanimous.” Epps did not object to any of the
jury instructions.
During the State’s closing argument, the prosecutor discussed the fourth element of
first-degree criminal sexual conduct:
The fourth element is that the defendant used force or coercion to accomplish
the [sexual] penetration. And in this case, you have both, and if you find the
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defendant guilty, you’re goi ng to be asked specifica lly to break that down,
force versus coercion.

. . .

Once again, let’s talk abou t unanimity. So you don’t all need to agree that
there was either force or coercion in order for this element to be met. So six
of you could say: Yep, I think there was force. Six of you could say: There
was coercion but not force. That element is still met in that situation. The
piece where you have to br eak it down is if you find the defendant guilty.
Then you’re asked an additional ques tion: Was there force, was there
coercion, or was there both? In those questions, you need to all agree, 12 of
you need to agree. But that’s only after you’ve decided whether the State
has met that element.

Epps did not object during the prosecutor’s closing argument.
The jury found Epps guilty. On the verdic t form, the jury responded affirmatively
when asked if Epps used both force and coercion:
Did the defendant use force in the commission of the offense? Answer: Yes.
Did the defendant use coercion in the commission of the offense? Answer:
Yes. Did the defendant use both force and coercion in the commission of
the offense? Answer: Yes.

(Emphasis added.) The district court imposed the presumptive sentence of 156 months in
prison.
On appeal, Epps argued that the prosecutor committed a reversible error during the
State’s closing argument by misstating th e law regarding whether the jury must
unanimously agree that he accomplished the sexual penetration with force or with coercion.
Epps acknowledged that he did not object during the State’s closing argument, but asserted
that the prosecutor’s statement was plain error. He contended that the plain error impacted
his substantial rights because the testimony pres ented to the jury rega rding the nature of
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the sexual contact was conflicting. Epps as ked the court of appe als to reverse his
conviction and remand for a new trial to ensure the fairness and integrity of the proceeding.
In a precedential decision, the court of appeals affirmed Epps’s conviction. State v.
Epps, 949 N.W.2d 474, 478 (Minn. App. 2020 ). Interpreting the plain language of
section 609.342, subdivision 1(e)(i), 1 the court concluded that the phrase “force or
coercion” presents alternative means for committing the sexual penetration element of the
offense and the jury does not need to unanimously agree on which of the two possible
means was used by the defendant. Id. at 483–84. Applying this interpretation to the facts,
the court of appeals determined that the pr osecutor did not misstate the law when he
suggested that the jury need not reach a unanimous verdict regarding whether Epps used
force or used coercion. 2 Id. at 486. Accordingly, based on the lack of an error by the
prosecutor, the court of appeals found that Epps was not entitled to relief under the
modified plain error doctrine.3

1 During the 2021 special session, the Le gislature amended the statute by separating
“force or coercion” into different subsections. See Act of June 30, 2021, ch. 11, art. 4,
§ 16.

2 In a footnote, the court of appeals noted th at even if the first-degree criminal sexual
conduct statute required a jury to reach a unanimous verdict on whether the defendant acted
with force or with coercion, Epps would still not be entitled to a new trial because the jury
stated on the special verdict form that Epps used both force and coercion. 949 N.W.2d at
486 n.3. Thus, any error in the prosecutor’s statement was harmless and did not affect
Epps’s substantial rights. Id.

3 The court of appeals also concluded that the evidence was sufficient to support
Epps’s conviction for first-degree criminal sexual conduct. 949 N.W.2d at 487. The court
of appeals remanded the case to the district court, however, to allow that court to consider
Epps’s sentence in light of State v. Robinette, 944 N.W.2d 242 (Minn. App. 2020), aff’d,
___ N.W.2d ___, 2021 WL 3745545 (Minn. Aug. 25, 2021). 949 N.W.2d at 488.
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We granted Epps’s petition for review.
ANALYSIS
Ordinarily, a defendant’s failure to objec t to an error during the trial forfeits
appellate consideration of the issue. State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006);
see also State v. Smith , 932 N.W.2d 257, 271 (Minn. 2019) (“When a defendant fails to
object at trial, the forfeiture doctrine gene rally precludes appellate relief.” (citation
omitted) (internal quotation marks omitted)); State v. Beaulieu, 859 N.W.2d 275, 278–79
(Minn. 2015). But we have the discretionary power to grant relief when a particularly
egregious error “seriously aff ect[s] the fairness, integrity, or public reputation of judicial
proceedings” even if a party fails to object to the error below. State v. Huber, 877 N.W.2d
519, 528 (Minn. 2016) (citation omitted) (internal quotation marks omitted); see also Minn.
R. Crim. P. 31.02. To invok e this discretionary power, the plain error doctrine must be
satisfied.
In State v. Griller, we clarified the proper analysis to use when applying the plain
error doctrine:
[B]efore an appellate court reviews an unobjected-to error, there must be
(1) error; (2) that is plain; and (3) the error must affect substantial rights. If
these three prongs are met, the appellate court then assesses whether it should
address the error to ensure the fairne ss and the integrity of the judicial
proceedings.

583 N.W.2d 736, 740 (Minn. 1998) (footnotes omitted). In Ramey, we extended the plain
error doctrine to unobjected-to claims of prosecutorial error or misconduct
4 but modified

4 Prosecutorial error and prosecutorial mi sconduct are separate contentions but the
modified plain error standard applies to both. See State v. Leutschaft , 759 N.W.2d 414,
8
the Griller analysis to shift the burden of proof between the defendant and the State.
721 N.W.2d at 302. Under this approach, the defendant must establish the existence of an
error that was plain, and then the burden shifts to the State to establish that the plain error
did not affect the defendant’s substantial rights. Id.
Notably, a negative answer to any one of the three parts of the plain error doctrine
may end our analysis and a de fendant’s quest for relief. See, e.g. , State v. Coleman ,
957 N.W.2d 72, 83 (Minn. 20 21) (concluding that the defendant’s claim of error was not
viable because it could not have affected his substantial rights); State v. Jones, 753 N.W.2d
677, 689 (Minn. 2008) (granting no relief for the defendant because the alleged error could
not have been plain); State v. Ihle, 640 N.W.2d 910, 917–19 (Minn. 2002) (analyzing the
underlying legal questions and finding no error).
Here, Epps argues that an error occurred, the error was plain, and that plain error
affected his substantial rights because the core issue during the jury trial was whether he
used force or coercion to accomplish sexual penetration. He contends that the prosecutor’s
statement during the State’s closing argument allowed the jury to “c obble together their
findings” rather than unanimously decide whet her he used force or coercion. The State
counters that the prosecutor’s statement during the closi ng argument was not erroneous
because force or coercion are alternative means for completing the offense. But even if the

418 (Minn. App. 2009) (discussing the distin ction between prosecutorial misconduct and
prosecutorial error but applying the modified pl ain error standard of review regardless of
the characterization), rev. denied (Minn. Mar. 17, 2009).
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statute is interpreted differently, the State argues that Epps suffered no prejudice because
the answers on the verdict form confirm that the jury’s verdict was unanimous.
We conclude that the modified plain e rror doctrine cannot provide relief to Epps
because the State has established that his substantial rights were not affected by the alleged
error. First, and most importantly, there is an obvious lack of prejudice to Epps. The
record, when read as a whole, refutes Epps’s claim that the prosecutor’s statement caused
a lack of jury unanimity. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating
that we review a challenge to a prosecutor’s statement in closing argument “as a whole”).
Epps challenges the following portion of the prosecutor’s closing argument:
So you don’t all need to agree that there was either force or coercion in order
for this element to be met. So six of you could say: Yep, I think there was
force. Six of you could say: There was coercion but not force. That element
is still met in that situation. The piece where you have to break it down is if
you find the defendant guilty . . . .

Immediately after the above passage, the prosecutor continued:
Then you’re asked an additional ques tion: Was there force, was there
coercion, or was there both? In those questions, you need to all agree, 12 of
you need to agree. But that’s only after you’ve decided whether the State
has met that element.

This second portion of the prosecutor’s statement—which was omitted in Epps’s
brief to our court—clearly refers to the verdict form. The district court explicitly instructed
the jury as much, stat ing: “If you find th e defendant guilty you w ill have an additional
issue to decide and the issue will be put to you in the form of questions on the verdict form.”
The verdict form lists questions that squa rely match up with the second half of the
prosecutor’s statement. On th e verdict form, the jury answered “yes ” to each of the
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questions. And at the end of the trial, the court polled each of the jury members
individually, asking whether the verdict form reflected their “true and correct verdict.”
Each member of the jury, being duly sworn by the district court, answered in the
affirmative. Considering the full context of the prosecutor’s statement, the district court’s
instructions, the verdict form , and the jury polling, it is undisputed that the jury
unanimously found that Epps used force, coercion, and both force and coercion to sexually
assault E.P. Consequently, Epps’s theory of prejudice is completely refuted by the record.
In addition, the State had a strong case agai nst Epps. The eviden ce at trial almost
universally undermined Epps’s defense th at the sexual intercourse with E.P. was
consensual. Specifically, the State introduced pictures of E.P’s injuries, as well as
testimony from a nurse who explained that the bruises on E.P.’s arms were consistent with
being held down under someone’s “bodyweight,” and her injuries were consistent with a
forcible sexual encounter. See Troxel v. State, 875 N.W.2d 302, 311 (Minn. 2016) (noting
that “fresh-appearing bruises” and abrasions on the victim’s thighs were “inconsistent with
consensual sexual activity”).
Finally, the prosecutor’s statement during the State’s closing argument was brief
and not repeated. The statem ent consisted of only four sentences in the 28 pages of
transcript that comprised the closing argument. Cf. State v. Peltier, 874 N.W.2d 792, 803
(Minn. 2016) (noting that improperly admitted testimony “occupie[d] just three lines in the
transcript, while [the witness’s] full testimony [ran] to 69 pages”). Because the State has
met its burden to establish the third part of th e modified plain error doctrine, that Epps’s
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substantial rights were not affected by the alleged error, we agree with the court of appeals
that no relief is warranted in this case.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.