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This opinion is nonprecedential except as provided by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
A21-1694

State of Minnesota,
Respondent,

vs.

Michael Douglas Capshaw,
Appellant.

Filed December 19, 2022
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-19-5780

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Wheelock, Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this appeal from the final judgment of conviction for first-degree criminal sexual
conduct, appellant argues that (1) the district court erred in failing to give a
specific-unanimity jury instruction; (2) the prosecutor committed misconduct by
2
encouraging the jury to return a nonunanimous verdict; and (3) the district court violated
appellant’s Sixth Amendment right to a sentencing jury by imposing an upward durational
departure based on the finding that appellant committed multiple forms of sexual
penetration. Because we discern no plain error by the district court, and any error as to the
durational departure was harmless beyond a reasonable doubt, we affirm.
FACTS
The following facts are taken from the evidence received during the jury trial.
Appellant Michael Douglas Capshaw met V. L. on an online dating site in 2014 or 2015.
They became friends and had an on-and-off sexual relationship for the following four
years.
V.L. and Capshaw arranged to meet over the lunch hour on March 7, 2019. V.L.
came to Capshaw’s apartment at approximately 12:00 p.m. Once they were in the
apartment, Capshaw began to kiss V.L. “really hard.” According to V.L., Capshaw’s
demeanor “was very aggressive,” which she found “unusual.” The two then moved to
Capshaw’s bedroom. Capshaw told V.L. to start undressing. After she did so, Capshaw
forced V.L. to her knees, and she began to perform consensual oral sex on him. V.L.
wanted to stop performing oral sex, but when she stopped, Capshaw slapped her face with
an open hand.
Capshaw then pushed V.L. onto his bed and engaged in vaginal intercourse with
her. Next, Capshaw grabbed V.L. by the hair and told her to crawl on her hands and knees
through the kitchen into the living room. She told him that the hardwood floor hurt her
knees.
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When they entered the living room, Capshaw made V.L. kneel on the couch and
told her to stare at the wall. He poured cooking oil on her breasts and genitals. Capshaw
then began to perform anal sex on V.L., and V.L. told him, “I don’t want to do this. I don’t
like doing this.” She testified that the penetration was “extremely painful,” but Capshaw
did not stop.
Capshaw then grabbed V.L.’s hair and again made her crawl back through the
kitchen, where he used a cut portion of a belt to hit her buttocks. He also slapped her right
buttock with his hand. V.L. again told Capshaw to stop, but he did not.
Instead, Capshaw took V.L. back to his bedroom. While she was on his bed, he
bound her wrists to her ankles with tape. He blindfolded her with her leggings. He then
penetrated her vagina with multiple fingers for several minutes, causing her “immense
pain.” V.L. again told Capshaw, “No. Don’t. Please stop,” but Capshaw continued.
After the digital penetration, Capshaw left the room and returned with bottles from
his kitchen. Capshaw inserted the wider end of a bottle into V.L.’s vagina. She again
asked him to stop, but he did not stop. Capshaw next inserted a bottle into her anus. At
one point, he penetrated her anus and her vagina at the same time. V.L. explained at trial
that she did not resist because she was afraid that if she fought against Capshaw, he would
overpower her and hurt her more.
V.L. tried to move away from Cap shaw, which caused her head to fall off the side
of the bed. Capshaw then forced his penis into her mouth. V.L. was unable to breathe and
attempted to shake her head “no.” After this, Capshaw again penetrated V.L. until he
ejaculated; however, V.L. was unsure whether the penetration was vaginal or anal.
4
Capshaw informed V.L. that she had defecated on his bed and told her to shower.
V.L. attempted to urinate in the bathroom, but she could not because “everything hurt,”
and she was bleeding. V.L., and then Capshaw, showered. She left his apartment at
approximately 1:00 p.m. V.L. went to the hospital that evening and underwent a
sexual-assault examination. The following day, V.L. reported to police that Capshaw had
sexually assaulted her.
Respondent S tate of Minnesota charged Capshaw with one count of first-degree
criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2018). The
complaint alleged that Capshaw engaged in sexual penetration with V.L., causing her
personal injury, and that he used force or coercion to accomplish the sexual penetration.
At trial, the state introduced numerous exhibits, including records from the
sexual-assault examination documenting V.L.’s injuries. The state called several witnesses
to testify and corroborate V.L.’s testimony, including the nurse who performed the Sexual
Assault Nurse Examination (SANE). The nurse testified that V.L. had multiple external
and internal injuries that were consistent with V.L.’s statement of what had occurred. She
further testified that these were the “worst injuries [she had] ever seen” in her experience
working on approximately 400 cases in her 11 years as a SANE nurse.
In his testimony, Capshaw admitted to some of the sexual acts to which V.L.
testified at trial. However, he claimed the entire encounter was consensual. In his
description, V.L. “seemed fine” after the encounter, but then she became “really upset”
when he told her that he had a significant other and could no longer see V.L.
5
The jury found Capshaw guilty of first-degree criminal sexual conduct as well as
the lesser-included offense of third-degree criminal sexual conduct. The court submitted a
special-verdict form for the jury to make findings about what forms of sexual penetration
occurred. The special-verdict form posed the following questions to the jury:
1. Did the defendant penetrate the victim’s vagina with his
penis?
2. Did the defendant penetrate the victim’s anus with his
penis?
3. Did the defendant penetrate the victim’s mouth with his
penis?
4. Did the defendant penetrate the victim’s vagina with his
fingers?
5. Did the defendant penetrate the victim’s vagina with an
object held by the defendant?
6. Did the defendant penetrate the victim’s anus with an
object held by the defendant?
The jury unanimously agreed on what specific acts of penetration Capshaw committed by
answering the first five questions in the affirmative.
Capshaw’s presumptive sentence for first-degree criminal sexual conduct was 144
months in prison. However, the district court imposed an upward durational departure
based on the aggravating factor of multiple forms of penetration and sentenced Capshaw
to 180 months in prison.
Capshaw appeals.
6
DECISION
I. The district court did not err in failing to give a specific-unanimity jury
instruction.

Capshaw argues that the district court and the prosecutor committed plain error that
violated his right to a unanimous verdict. He first contends that the district court plainly
erred by failing to give the jury a specific-unanimity instruction. Such an instruction would
have required the jurors to unanimously agree on which act(s) of criminal sexual
penetration Capshaw committed.
The district court gave a standard jury instruction regarding the unanimous-verdict
requirement, stating: “When you reach a verdict, it must be agreed upon by all of you. In
other words, your verdict must be unanimous.”
1 Capshaw did not request a
specific-unanimity jury instruction or object to the standard instruction at trial.
“Generally, failure to object at trial to the given jury instructions forfeits the right to
appeal on that error.” State v. Hart, 477 N.W.2d 732, 738 (Minn. App. 1991), rev. denied
(Minn. Jan. 16, 1992). However, we may consider an alleged error in unobjected-to jury
instructions if it was a plain error that affected the appellant’s substantial rights. State v.
Pendleton, 725 N.W.2d 717, 730 (Minn. 2007); State v. Crowsbreast, 629 N.W.2d 433,
437 (Minn. 2001).
Under the plain-error test, we determine whether there was (1) an error (2) that was
plain and (3) that affected appellant’s substantial rights. Crowsbreast, 629 N.W.2d at 437.

1 See 10 Minnesota Practice, CRIMJIG 3.04 (2015) (“In order for you to return a verdict,
whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be
unanimous.”).
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If the three prongs of the plain-error test are met, then we may correct the error to ensure
fairness and the integrity of the judicial proceedings. Id.; State v. Griller, 583 N.W.2d 736,
740 (Minn. 1998). However, if we conclude that any one of the plain-error prongs is not
satisfied, we need not address the others. State v. Lilienthal, 889 N.W.2d 780, 785 (Minn.
2017).
“An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted). An error does not contravene caselaw, and therefore
is not plain error, if “neither [the state appellate] court nor the federal courts have
conclusively resolved [the] issue.” State v. Jones, 753 N.W.2d 677, 689 (Minn. 2008).
It is settled law that a jury must unanimously agree on the verdict in a criminal case.
Minn. R. Crim. P. 26.01, subd. 1(5); Pendleton, 725 N.W.2d at 730. It follows that the
jury must also unanimously agree that the state proved each element of the offense beyond
a reasonable doubt in order to return a guilty verdict. State v. Ihle, 640 N.W.2d 910, 918
(Minn. 2002). If the state offers evidence of distinct acts by a defendant to prove a single
offense, and each act itself constitutes an element of the offense—and not alternate means
of proving an element —the jury must unanimously agree on which acts the defendant
committed. State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001).
However, “[t]he jury need not unanimously agree on each element’s underlying
facts.” State v. Infante, 796 N.W.2d 349, 356 (Minn. App. 2011) (concluding that the
district court did not err when it did not give a specific-unanimity instruction requiring the
jury to agree as to which of the defendant’s actions constituted assault), rev. denied (Minn.
8
June 28, 2011); see Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality opinion)
(“Plainly there is no general requirement that the jury reach agreement on the preliminary
factual issues which underlie the verdict.” (quotation omitted)); Pendleton, 725 N.W.2d at
731 (stating that “the jury does not have to unanimously agree on the facts underlying an
element of a crime in all cases”). Furthermore,
if [a] statute establishes alternative means for satisfying an
element, unanimity on the means is not required. . . . [T]he jury
need not always decide unanimously which of several possible
means the defendant used to commit the offense in order to
conclude that an element has been proved beyond a reasonable
doubt.

Ihle, 640 N.W.2d at 918 (citing Richardson v. United States, 526 U.S. 813, 817-18 (1999));
accord Stempf, 627 N.W.2d at 354-55; see also Crowsbreast, 629 N.W.2d at 439
(concluding that the district court did not err when it did not give a specific-unanimity jury
instruction because the jury was not required to unanimously agree on which acts occurred
to satisfy the “past pattern of domestic abuse” element of domestic-abuse homicide); State
v. Lagred, 923 N.W.2d 345, 355 (Minn. App. 2019) (holding that the district court did not
err when it did not give a specific-unanimity jury instruction because the jury was not
required to unanimously decide what means the defendant used to commit the alleged
robbery). Neither state nor federal caselaw has established a bright-line rule to distinguish
whether an act constitutes a means of satisfying an element of an offense or a separate
element itself. See, e.g., Schad, 501 U.S. at 643 (“It is . . . impossible to lay down any
single analytical model for determining when two means are so disparate as to exemplify
two inherently separate offenses.”).
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Here, Capshaw claims that the district court’s standard jury instruction on unanimity
was plain error because it allowed the jury to disagree about which acts of nonconsensual
sexual penetration he committed. Capshaw relies primarily on this court’s decision in
Stempf to support his argument. In Stempf, the defendant was charged with one count of
methamphetamine possession, but the state alleged two separate instances of possession to
support the charge: first, that Stempf possessed methamphetamine found at his workplace
and second, that he possessed methamphetamine found in a truck in which he was a
passenger. 627 N.W.2d at 357. This court concluded that the district court violated
Stempf’s right to a unanimous verdict by refusing to give a specific-unanimity instruction
when he requested it because “[s]ome jurors could have believed appellant possessed the
methamphetamine found on the premises while other jurors could have believed appellant
possessed the methamphetamine found in the truck.” Id. at 358.
We recognized in Stempf that the jury is not required to unanimously agree on
“alternative means or ways in which the crime can be committed.” Id. at 355-56.
Therefore, Capshaw’s argument that the district court erred hinges on whether the different
forms of sexual penetration constitute alternative means of accomplishing a single element
of the offense or stand alone as separate elements.
This court recently applied a “means -versus-elements analysis” to the first-degree
criminal-sexual-conduct statute at issue here. State v. Epps, 949 N.W.2d 474, 481 (Minn.
App. 2020) (Epps I), aff’d, 964 N.W.2d 419 (Minn. 2021) (Epps II). In Epps I, we stated:
A plain reading of the statute dictates that the elements of
first-degree criminal sexual conduct under Minn. Stat.
§ 609.342, subd. 1(e)(i), are: (1) the intentional act of sexual
10
penetration, (2) without the consent of the complainant,
(3) causing personal injury to the complainant, and (4) through
the use of force or coercion.

Id. at 482. We concluded that “force” and “coercion” are alternative means of
accomplishing the fourth element of first-degree criminal sexual conduct. Id. at 484.
A plain reading of the relevant statute here yields the same conclusion. The
definition of “sexual penetration” in Minn. Stat. § 609.341, subd. 12 (2018), indicates that
the element of sexual penetration can be accomplished in several ways:
“Sexual penetration” means any of the following acts
committed without the complainant’s consent, except in those
cases where consent is not a defense, whether or not emission
of semen occurs:
(1) sexual intercourse, cunnilingus, fellatio, or anal
intercourse; or
(2) any intrusion however slight into the genital or anal
openings:
(i) of the complainant’s body by any part of the actor’s
body or any object used by the actor for this purpose[.]

Applying the same logic in this case as in Epps I, we conclude that the different types of
sexual penetration identified in subdivision 12 are alternative means of accomplishing the
first element of first-degree criminal sexual conduct.
This court reached a similar conclusion regarding the means of accomplishing an
element of second-degree assault in Infante, 796 N.W.2d at 358. There, the state charged
Infante with second-degree assault based on his actions during an argument with his wife—
he tapped her on the head with a gun and later loaded a gun while staring at her. Infante,
796 N.W.2d at 352. Infante argued that the district court erred by failing to instruct the
11
jury that it must reach a unanimous decision as to which of the two acts constituted the
assault. Id. at 355. Infante’s argument, like Capshaw’s, relied on Stempf. Id. at 356.
However, this court determined that Infante was distinguishable from Stempf for
two reasons: first, Infante’s two acts were part of the same behavioral incident, and second,
the two acts were alternative means of proving the intent-to-cause-fear element of assault.
Id. at 356-58. Thus, we concluded that “[t]he district court need not instruct the jury that
it must unanimously agree on which of two physical acts constitutes an assault if the two
acts are part of a single behavioral incident.” Id. at 351.
The instant case is factually similar to Infante. Here, the state alleged multiple forms
of sexual penetration that were part of a single behavioral incident occurring over a period
of one hour. The different forms of penetration alleged did not lack unity of time and place,
nor were they “separate and distinct culpable acts” as in Stempf, 627 N.W.2d at 358-59.
Rather, they were alternative means of accomplishing the sexual-penetration element under
Minn. Stat. § 609.342, subd. 1(e)(i). Therefore, we conclude that the district court did not
err by not providing a specific-unanimity jury instruction.2

2 Notwithstanding our rejection of Capshaw’s argument, the jury’s answers to the
special-verdict form show that the jury unanimously agreed on five of the six alternative
means offered to prove the element of sexual penetration. Thus, even if Capshaw had
properly requested, and the district court had given, a specific-unanimity instruction that
required the jurors to unanimously agree on which act(s) of nonconsensual sexual
penetration Capshaw committed, the outcome would have been the same. It is abundantly
clear that the jury in fact unanimously agreed that Capshaw committed at least five
different acts of penetration that each independently met the definition of “sexual
penetration” in Minn. Stat. § 609.341, subd. 12.
12
II. The prosecutor did not err in her closing-argument statements regarding
unanimity.

Capshaw next argues that the prosecutor misstated the law regarding jury unanimity
in her closing argument “by encouraging the jurors to find Appellant guilty without
unanimously agreeing that the State proved one act of non-consensual sexual penetration
beyond a reasonable doubt.” During the state’s closing argument, the prosecutor said:
The State doesn’t have to prove every act of nonconsensual
sexual penetration beyond a reasonable doubt, only one.

And not all 12 of you have to say he performed one
particular form of penetration. As long as all 12 of you agree
that some form of sexual penetration occurred—four of you
can think sexual intercourse, four of you can think oral, four of
you can think any object inserted into the genital or anal
opening—that’s proof beyond a reasonable doubt. It’s your
agreement upon the verdict overall that must be unanimous,
that each element, as a whole, is met in some way.

Capshaw did not object to the prosecutor’s statements at trial; in fact, his attorney reiterated
the state’s argument in Capshaw’s closing argument: “Just as [the prosecutor] says you
don’t have to necessarily agree on what act might be nonconsensual and consensual, you
also don’t have to agree on what a reasonable doubt is.”
A prosecutor’s misstatement of the law may constitute misconduct. See State v.
Strommen, 648 N.W.2d 681, 690 (Minn. 2002) (reversing and remanding when the
prosecutor’s misstatement of the law and the burden of proof denied the defendant a fair
trial). This court reviews unobjected-to prosecutorial misconduct under a modified version
of the plain-error standard. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). Under
this standard, the appellant has the burden to show that there was plain error. Id. at
13
299-300. Prosecutorial error is plain if it is “clear or obvious.” State v. Rucker,
752 N.W.2d 538, 551 (Minn. App. 2008), rev. denied (Minn. Sept. 23, 2008).
Prosecutorial error can be shown if the prosecutor’s conduct “contravenes case law, a rule,
or a standard of conduct.” Ramey, 721 N.W.2d at 302. Once the appellant shows plain
error, the burden shifts to the state to show that the error did not affect the appellant’s
substantial rights. Id. at 300.
The reasoning we applied to conclude that the district court did not err in its jury
instructions applies equally to the prosecutor’s purported plain error during closing
argument. The different forms of penetration that the state alleged here were alternative
means of accomplishing one element of the offense. Therefore, the prosecutor was correct
in stating that the jury need not unanimously agree on which forms of sexual penetration
occurred, only that some form of sexual penetration occurred. The prosecutor’s statements
did not contain any “clear or obvious” error or contravene caselaw regarding jury
unanimity, and therefore were not plain error. Jones, 753 N.W.2d at 689 (quotation marks
omitted).
Even if we concluded the prosecutor’s statements were plain error, the Minnesota
Supreme Court’s analysis in its review of Epps I convinces us that the error Capshaw
alleges would not affect his substantial rights and thus, would not warrant relief. In Epps
II, the supreme court “consider[ed] the full context of the prosecutor’s statement, the
district court’s instructions, the verdict form, and the jury polling” and concluded that “it
is undisputed that the jury unanimously found” that the elements of the
criminal-sexual-conduct offense were satisfied. 964 N.W.2d at 424. In concluding that
14
the appellant was not prejudiced, the supreme court also noted that the state had a strong
case supported by the record, and the prosecutor’s challenged statements were brief. Id.
Ample evidence exists in the record of these proceedings upon which the jury could
base its guilty verdict, and the prosecutor’s challenged statements were brief. The state
called eight witnesses in addition to V.L. and introduced dozens of exhibits to corroborate
her testimony. The state’s case spans hundreds of pages of the record, while the
prosecutor’s challenged statements make up only two paragraphs of a twenty-page closing
argument.
It is also unlikely that any prosecutorial error affected Capshaw’s substantial rights,
given that the jury gave unanimous answers on the special-verdict form. See Ihle,
640 N.W.2d at 917 (concluding that appellant was not entitled to a new trial despite an
error in the district court’s jury instructions because the jury’s answer to the special-verdict
question showed “no reasonable likelihood that a more accurate instruction would have
changed the outcome” of the case). Here, the prosecutor’s challenged statement began,
“And not all 12 of you have to say he performed one particular form of penetration.” Yet
all twelve jurors agreed that Capshaw performed five forms of sexual penetration in their
answers to the questions on the special-verdict form. Even if the prosecutor erred in her
closing argument, the error did not affect the unanimity of the jury’s verdict as shown by
the special-verdict form and thus, would not require reversal.
In sum, we conclude that the district court’s jury instructions and the prosecutor’s
closing-argument statements were not erroneous. We therefore affirm Capshaw’s
conviction.
15
III. The district court did not err by imposing an upward durational departure
when sentencing Capshaw, based on the jury’s finding that multiple forms of
penetration occurred.

Capshaw’s final argument is that the district court violated his Sixth Amendment
right to a sentencing jury. He claims that the district court, not the jury, made the finding
of fact that multiple forms of nonconsensual sexual penetration occurred in this case, which
is an aggravating factor that would support an upward durational departure. He contends
that the special-verdict form that the district court gave to the jury required the jury to find
only whether there were multiple forms of sexual penetration, not whether there were
multiple forms of nonconsensual sexual penetration.
“[A] criminal defendant has a right under the Sixth Amendment . . . to be sentenced
based solely upon factual findings made by a jury.” State v. Reimer, 962 N.W.2d 196, 198
(Minn. 2021) (citing Blakely v. Washington , 542 U.S. 296, 303-05 (2004)). Appellate
courts review alleged Blakely violations under a “harmless beyond a reasonable doubt”
standard. Id. at 199. “A Blakely error is harmless if the reviewing court can say with
certainty that a jury would have found the aggravating factors used to enhance [the
defendant’s] sentence had those factors been submitted to a jury in compliance with
Blakely.” State v. Essex, 838 N.W.2d 805, 813 (Minn. App. 2013) (quotation omitted),
rev. denied (Minn. Jan. 21, 2014).
“An error is not harmless if there is any reasonable doubt the result would have been
different if the error had not occurred.” State v. DeRosier, 719 N.W.2d 900, 904 (Minn.
2006). If an error is not harmless beyond a reasonable doubt, appellate courts must remand
the case for resentencing. Reimer, 962 N.W.2d at 199.
16
While it is true that the special-verdict form did not include the word
“nonconsensual,” the special-verdict form and the jury instructions, taken as a whole, make
clear that the jury found that multiple forms of nonconsensual sexual penetration occurred.
See State v. Scruggs, 822 N.W.2d 631, 642 (Minn. 2012) (stating that there is no reversible
error when a district court’s jury instructions “read as a whole correctly state the law in
language that can be understood by the jury” (quotation omitted) ). Specifically, the
special-verdict form directed the jury to consider what forms of sexual penetration occurred
in the context of its unanimous verdict that Capshaw was guilty of first-degree criminal
sexual conduct.
3 For purposes of that offense, the term “sexual penetration” means any of
several enumerated sexual acts “committed without the complainant’s consent,” Minn.
Stat. § 609.341, subd. 12, and the record contained ample evidence that the forms of sexual
penetration the jury found were all nonconsensual. The district court also instructed the
jury that one of the elements of first-degree criminal sexual conduct is that the sexual
penetration occurred without V.L.’s consent.
Based on these considerations, we are persuaded that the jury made the finding that
Capshaw committed multiple forms of nonconsensual sexual penetration. Furthermore,
we are also persuaded that the jury would have reached the same conclusion had the
special-verdict form included the word “nonconsensual.” Therefore, we conclude that any
error in the special-verdict form was harmless beyond a reasonable doubt and that the

3 The special-verdict form begins with the phrase, “We, THE JURY, having found the
defendant guilty of the charge of Count 1: Criminal Sexual Conduct in the First Degree,
have decided the following . . . .”
17
district court did not err by imposing an upward durational departure when it sentenced
Capshaw.
Affirmed.