State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2025

State of Minnesota,
Respondent,

vs.

Bruce Edward Canady,
Appellant.

Filed January 19, 2021
Affirmed
Cochran, Judge

Stearns County District Court
File No. 73-CR-18-10257

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney , Ole Tvedten, Assist ant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Cochran, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Following a jury trial, appellant was convicted of (1) promoting the prostitution of
an individual, (2) receiving profits from prostitution, and (3) engaging in the sex trafficking
of an individual. On the verdict form, the jury found appellant guilty of each of the three

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offenses. The jury also found that each of the offenses “involved more than one sex
trafficking victim,” thereby sa tisfying the sentencing-enhance ment provision set forth in
Minn. Stat. § 609.322, subd. 1(b)(4) (2018).
In this direct appeal, appellant argues that he was denied his right to a unanimous
verdict because the jury was not instructed that it had to unanimously agree on which
person or persons were the a dditional victims when it consid ered whether each offense
“involved more than one sex trafficking victim.” He also argues that the district court erred
by allowing the state to intr oduce evidence that he conte nds was irrelevant, unfairly
prejudicial, and improper prop ensity evidence. Because the district court did not plainly
err by not providing a unanimity instruction specific to the sent encing-enhancement
provision or by admitting the challenged evidence, we affirm.
FACTS
In November 2018, appellant Bruce Edward Canady was arrested and charged with
two felony sex-trafficking o ffenses: promoting th e prostitution of an individual and
engaging in the sex traffi cking of an individual. See Minn. Stat. § 609.322, subd. 1a(2),
(4) (2018). In February 2019, the state amended the complain t to allege a third felony
offense—receiving profits from the prostitution of an individual. See id. , subd. 1a(3)
(2018). The amended complaint alleged that Canady’s offe nses occurred between April
and November 2018, and identified an adult woman, K.F.-H., as the “individual” victim
under each count. For each coun t, the amended complaint also alleged that the statutory
sentencing-enhancement factor of “more than one sex trafficking victim” was met. See id.,
subd. 1(b)(4). To support its allegations, the complaint referenc ed Facebook messages

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between Canady and K.F.-H. and Canady and two additional anonymous victims. The
complaint also detailed Facebook messages that Canady had sent to other people in which
he advertised that he had women available for prostitution.
At trial, two alleged victims testified: K.F.-H. and another woman named A.M.
Both testified that Canady ha d driven them to prostitution appointments, received money
they earned through prostitution, and set up appointments for them to have sex with men
for money. The defense impeached A.M. with a prior conviction of “a crime of
dishonesty.” The jury also heard testimony from D.S., who testified that she created a
prostitution advertisement for a woman named J.N. at Canady’s request.
Prior to and during trial, defense coun sel disputed the admi ssibility of numerous
Facebook messages. Defense counsel objected to the admission of the Facebook messages
on the following grounds: lack of foundation, hearsay, and violation of the Confrontation
Clause of the United States Constitution. The district court ruled that some of the Facebook
messages were inadmissible, ordered others to be redacted, and allowed others to be
admitted with a cautionary instruction. Cana dy did not object to any of the messages on
the grounds that they were irrelevant, unfa irly prejudicial, or constituted propensity
evidence.
Some of the admitted messages corroborated the communications that Canady had
with K.F.-H., A.M., and D.S. Via the testimony of an investigator, the state also introduced
Facebook messages that showed conversations between Canady and potential prostitution
patrons and between Canady and others about potential patr ons. In various messages,
Canady advertised several additional women as available for prostitution. He sometimes

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referred to women by name or nickname—“Carmen,” “April Showers”—or referred to
having multiple women available at once—“got 4 hoes,” “got 2 females.”
Following trial, the district court provided its instructions to th e jury. The district
court instructed the jury as to each of the three counts separately and identified the elements
of each count. All three counts involved co nduct against an “individual.” See Minn.
Stat. § 609.322, subd. 1a(2)-(4) (providing that a person commits a criminal offense where
he “promotes the prostitution of an individual”; “receives profit, knowing or having reason
to know that it is derived from the prostitution, or the promotion of the prostitution, of an
individual”; or “engages in the sex trafficki ng of an individual”). Consistent with the
parties’ agreement, the court named K.F.-H. as the “individual” included in all three counts.
The district court also told th e jury that it must consider ea ch count separately. After the
court stated the elements of each count, it further instructed the jury on the sentencing-
enhancement factor. Specifically, the district court told the jury:
If you find the Defendant guilty, th ere is an additional issue
that you must determine. Th e question will be submitted to
you on the verdict form. The State has the burden of proving
the additional question beyond a reasonable doubt. The
question is: Did the offense involve more than one sex
trafficking victim? You should answer the question yes or no.
If you have a reasonable doubt as to the answer, you should
answer the question no.

Toward the end of the jury inst ructions, the court instructed the jury that it must reach a
unanimous verdict. Canady did not object to the jury instructions at trial. Nor did Canady
ever propose an instruction requiring the jury to unanimously agree on the identities of the
additional victim or victims under the enhancement provision.

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After the district court gave the jury in structions, the parties made their closing
arguments. In its closing argument, the state suggested that the jury could find that the
enhancement provision was established through A.M.’s testimony, D.S.’s testimony about
J.N., or through Canady’s various Faceboo k messages advertising “April Showers,”
“Carmen,” “two females,” and “four hoes.”
The jury found Canady guilty of all thr ee counts and found that the “more than one
sex trafficking victim” sentencing-enhancement factor was met for each. The district court
entered convictions for all three offenses but sentenced Canady only on the third count—
engaging in the sex trafficking of an individual. Canady appeals.
DECISION
Canady argues that the district court erred by (1) failing to instruct the jury that it
must unanimously agree on which person or persons were the additional victims under the
“more than one sex trafficking victim” se ntencing-enhancement provision of Minn.
Stat. § 609.322, subd. 1(b)(4), and (2) allowi ng the state to intro duce certain evidence
about additional alleged victims, which Cana dy contends was irrelevant and unfairly
prejudicial. We address each of these arguments in turn.
I. The district court did not plainly erro r when it instructed the jury on the
unanimity requirement.

Canady first contends that the district court deprived him of his right to a unanimous
verdict because it did not provide a speci fic-unanimity instruction regarding the
sentencing-enhancement provision under Minn. Stat. § 609.322, subd. 1(b)(4). That
provision states that a pers on who commits the crime of sex trafficking or soliciting,

6
inducing, or promoting prostitution may be subject to an enhanced sentence if “the offense
involved more than one sex trafficking victim.” Id. At trial, the jury heard evidence about
several additional alleged victims besides K.F.-H., including A.M. and other women
Canady discussed in his Facebook messages—“Carmen,” “April Showers,” “4 hoes,” and
“2 females.” And while the district court gave a general-unanimity instruction requiring
the jury to unanimously agree on the verdict, it did not inst ruct the jury that it must
unanimously agree regarding the identities of the additional victim or victims for each
offense. Canady now argues that the jury was required to unanimously agree on exactly
who the additional victims were for each offense in order for the unanimity requirement to
be met.
Canady, however, did not request a specific -unanimity instruction at trial. A
defendant who fails to propose specific jury in structions generally forfeits that issue on
appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But, even abse nt a specific
jury-instruction proposal, this court may review the jury inst ructions for plain error.
State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001 ) (providing that an unpreserved
claim of an omitted specific-unanimity jury instruction is reviewed for plain error). Under
the plain-error test, we examine the instruc tions to determine whet her there was (1) an
error, (2) that was plain, and (3) that a ffected appellant’s substantial rights.
State v. Gunderson, 812 N.W.2d 156, 159 (Minn. A pp. 2012). If “any one of the
requirements” of the plain-error test is not satisfied, we “need not address any of the
others.” State v. Lilienthal, 889 N.W.2d 780, 785 (Minn. 2017) (quotation omitted).

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We begin our plain-error analysis by ex amining the law governing the unanimity
requirement. A jury’s verdict must be unanim ous in all criminal cases. Minn. R. Crim.
P. 26.01, subd. 1(5); State v. Plantin, 682 N.W.2d 653, 662 (Minn. App. 2004) (providing
that “[d]efendants have a constituti onal right to a unanimous verdict”), review denied
(Minn. Sept. 29, 2004). The jury must unani mously agree that the state “proved each
element of the offense.” State v. Pendleton , 725 N.W.2d 717, 730-31 (Minn. 2007)
(quotation omitted). But, while “the jury must unanimously agree on which acts the
defendant committed if each act itself constitutes an element of the crime,” the jury is not
required to unanimously agree on “alternative means or ways in which the crime can be
committed.” State v. Stempf , 627 N.W.2d 352, 354-55 (Mi nn. App. 2001) (quotation
omitted).
With that legal background in mind, we consider whether the district court plainly
erred when it instructed the jury. “An error is plain if it is clear or obvious.”
State v. Webster, 894 N.W.2d 782, 787 (M inn. 2017) (quotation om itted). An error is
“clear or obvious” if it “contravenes case la w, a rule, or a standard of conduct.” Id.
(quotation omitted). An allege d error does not contravene case law unless the issue is
“conclusively resolved.” State v. Jones , 753 N.W.2d 677, 689 (Minn. 2008). When
reviewing jury instructions , we recognize that “distr ict courts are entitled to
considerable latitude when selecting language for jury instructions.” State v. Carridine ,
812 N.W.2d 130, 144 (Minn. 2012). But a jury instruction cannot materially misstate the
law. Id. We review jury instructions “as a wh ole to determine whether the instructions

8
accurately state the law in a manner that can be understood by the jury.” State v. Kelley,
855 N.W.2d 269, 274 (Minn. 2014).
Canady focuses on Stempf to support his argument that the district court plainly
erred by failing to provide a specif ic-unanimity instruction. In Stempf, the state charged
the appellant with one count of possession of a controlled substance but presented evidence
on two separate acts of possession—one at the appellant’s workplace and one in the truck
in which the appellant was travelling. Id. at 357. We analyzed the elements of the
offense—(1) unlawful possession, and (2 ) one or more mixtures containing
methamphetamine. Id. We concluded that because “the statute makes the act of possession
an element of the crime,” the jury was required to unanimously agree on which of the two
separate acts of possession supported its verdict. Id. And, because some jurors could have
believed that the appellant possessed the substance found at his workplace and others could
have believed that he possessed th e substance found in his truck, we held that the district
court erred by failing to provide a specific-unanimity instruction. Id. at 359.
Canady contends that this case is similar to Stempf. He argues that without a
specific-unanimity instruction on the sentencing-enhancement factor, it is possible that
some jurors could have disagreed as to the identity of the additional victim or victims but
all still agreed that each offense involved more than one sex-trafficking victim. As a result,
he contends that the jury instructions e rroneously allowed for disagreement about which
act or acts supported the sentencing-enhancement factor for each crime, and, therefore, he
was denied his right to a unanimous verdict. Consequently, he maintains that the district
court plainly erred when it failed to provide a specific-unanimity instruction.

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The state, in contrast, argues that the dist rict court did not err because this case is
more similar to other decisions in which we ha ve held that jury unanimity is not required
with respect to the “altern ative means” by which a crime can be committed. See
State v. Ayala-Leyva, 848 N.W.2d 546, 554-55 (Minn. Ap p. 2014) (holding that the jury
was not required to unanimously agree on which of 20 overt acts appellant had committed
in furtherance of a conspiracy because “each overt act provided alternative means to prove
the element”), review denied (Minn. Aug. 11, 2015); State v. Begbie , 415 N.W.2d 103,
104-06 (Minn. App. 1987) (holding that the di strict court did not err by not requiring the
jury to unanimously agree which of two potential individuals were the victim of appellant’s
terroristic threats where appellant threatened a woman and her husba nd over the phone,
and the applicable statute did not make the identity of the pe rson who was threatened an
element of the crime), review denied (Minn. Jan. 20, 1988). Th e state contends that the
evidence in this case s howed numerous means by which the multiple-victim
sentencing-enhancement factor could have been met for each offense because there was
evidence of numerous additional victims. The state emphasizes that the act that is punished
under the sentencing-enhancement factor is the offender’s promotion of and/or sex
trafficking of “more than one sex traffickin g victim,” not the prom otion of and/or sex
trafficking of each additional individual. Consequently, the state maintains that the
sentencing-enhancement factor does not require a specific-unanimity instruction and there
was no error. Alternatively, the state argues that, if the district court did err, any error was
not plain.

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We need not decide whether the dist rict court erred by not providing a
specific-unanimity instruction regarding th e sentencing-enhancement provision because
we agree with the state that any potential erro r by the district court was not plain. Here,
both parties cite to case law to support their respective arguments, but neither Canady nor
the state cites to a case addressing whether a specific-unanimity instruction is required for
jury trials involving the sentencing-enha ncement provision at issue here—Minn.
Stat. § 609.322, subd. 1(b)(4). Nor does e ither party cite any case law addressing the
application of the unanimity requirement to sentencing-enhancement provisions more
generally. The cases the parties do cite—including Stempf, Begbie, and Ayala-Leyva—all
address the applicability of the unanimity re quirement to the offense itself, not to a
sentencing-enhancement provision. See Ayala-Leyva, 848 N.W.2d at 552-55 (conspiracy
to commit first-degree controlled-substance crime); Stempf, 627 N.W.2d at 353, 357-59
(fifth-degree controlled-substance offense); Begbie, 415 N.W.2d at 104-06
(terroristic-threats offense). Accordingly, the cases the par ties discuss in their briefs
provide little to no guidance on the issue before us. And we are aware of no case law that
addresses jury unanimity with respect to sentencing-enhan cement provisions. Because
case law has not conclusively resolved the issue before us, we cannot say that the district
court committed a clear or obvious error by not providing a specific-unanimity instruction.
See Webster , 894 N.W.2d at 787 (providing that an error is clear or obvious if it
“contravenes case law, a rule, or a stan dard of conduct” (quotation omitted)); Jones,
753 N.W.2d at 689 (providing that an allege d error does not contravene case law unless
the issue is “conclusively reso lved”). And, because the dist rict court did not plainly err,

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we need not address whether any error a ffected Canady’s substantial rights. Lilienthal,
889 N.W.2d at 785. Therefor e, we conclude that the abse nce of a specific-unanimity
instruction regarding the sentencing-enhancement provision does not require reversal.
II. The district court did not err by admitting evidence regarding other
potential victims.

Canady next argues that the district court erred by adm itting D.S.’s testimony that
Canady asked her to create a prostitution adve rtisement for J.N. and Facebook messages
pertaining to additional allege d victims who did not testify. Canady contends that the
evidence was not relevant, was unfairly pr ejudicial, and constituted impermissible
propensity evidence. Because Canady failed to object at trial to that evidence on the
grounds he raises now, the plain-error te st applies to this issue as well. See
State v. Vasquez, 912 N.W.2d 642, 649-50 (Minn. 2018) (stating that forfeited issues are
reviewed for plain error); State v. Rodriguez , 505 N.W.2d 373, 376 (Minn. App. 1993)
(providing that “[a]n objection must be specific as to the grounds for challenge” and that a
defendant does not preserve for appeal an objection made on different grounds than those
raised on appeal), review denied (Minn. Oct. 19, 1993).
Evidence is relevant if it ha s “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” State v. Strommen, 648 N.W.2d 681, 686-87 (Minn. 2002)
(quoting Minn. R. Evid. 401). Even if relevant, evidence of another crime, wrong, or act
may not be admitted “t o prove the character of a pers on in order to show action in
conformity therewith.” Minn. R. Evid. 404(b)(1). Relevant evidence also may be excluded

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if “its probative value is substantially outw eighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Minn. R. Evid. 403.
Canady contends that the Facebook me ssages about “April Showers,” “Carmen,”
“J.N.,” “4 hoes,” and others were not relevant to establishing the applicability of the “more
than one sex trafficking victim” sentenci ng-enhancement provision because “there is
insufficient information” to show that “the names referenced are actual people” or that “any
of them were actually trafficked.” He furt her argues that even if the Facebook messages
and D.S.’s testimony about J. N. were relevant, that evid ence was unfairly prejudicial
because it showed Canady’s ge neral propensity to engage in sex trafficking-related
behavior, or bad acts more generally, and thus the jury could have convicted Canady purely
on that basis.
Canady’s arguments are not persuasive. First, the Facebook evidence Canady
challenges was relevant. The Facebook messa ges made it more probable that Canady’s
criminal conduct involved more than one victim. The Facebook messages were therefore
relevant to establishing the applicability of the sentencing-enhancement provision.
Second, the Facebook messages and D.S.’s testimony about J.N. were not merely
evidence of Canady’s propens ity to engage in bad acts. The prosecution offered the
evidence not to show Canady’s general character or disposition to promote prostitution or
engage in bad acts, but rather as specific evidentiar y support for the
sentencing-enhancement factor. Furthermore, the probative value of the evidence was not
outweighed by any danger of unfa ir prejudice, confusion of the issues, or misleading the
jury because the evidence spoke directly to the “more than one sex trafficking victim”

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factor. Accordingly, D.S.’s testimony an d the Facebook messages were not unfairly
prejudicial nor inadmissible propensity evidence. We thus conclude that the district court
did not plainly err in admitting that evidence.
Affirmed.