State v. Capshaw

1

State of Minnesota, Respondent, v. Michael Douglas Capshaw, Appellant.

No. A21-1694

Court of Appeals of Minnesota

December 19, 2022

This opinion is nonprecedential except as provided by Minn.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

Hennepin County District Court File No. 27-CR-19-5780; Wheelock, Judge

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.

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 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.

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 Capshaw, 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.

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 State 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.

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.

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.

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...