This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).




State of Minnesota,



Scot Roger Sandve,


Filed June 8, 1999

Reversed and remanded

Anderson, Judge

Dakota County District Court

File No. K0971652

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Scot R. Sandve, 15344 Dunbar Avenue, Apple Valley, MN 55124 (pro se appellant)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.



Appellant contends the trial court erred when it instructed the jury on two alternative theories of guilt for one count of second-degree criminal sexual conduct. Because such an instruction interferes with a criminal defendant's substantial right to a fair trial, we reverse and remand.


Appellant Scot Roger Sandve was charged with one count of second-degree criminal sexual conduct. The victim, appellant's daughter, disclosed that appellant fondled her when he was sleeping. Appellant confirmed this encounter to police but attempted to rationalize his conduct by explaining that he was having an erotic dream when he touched her. The victim, four years old at the time, also discussed one or more occasions when appellant induced her to touch him. The time of the latter event or events was unknown. At the close of trial, the court instructed the jury on two alternative theories in support of one charge of second-degree criminal sexual conduct. The court explained that a unanimous verdict was required to convict appellant of either count. Yet, in response to a question from the jury as to the timing of the conduct, the court limited the jury's scope to concurrent events but allowed the jury to consider evidence that spanned up to a few months in duration. The jury found appellant guilty, without specifying for which act or acts.


On appeal, we must decide whether the court's jury instructions violated appellant's right to a unanimous jury verdict. Appellant argues that the court's instructions regarding the timing of the allegations constituted reversible error because the court expanded the prosecution's original allegations when it allowed the jury the option to consider evidence of events that arguably occurred beyond the scope of the prosecution's complaint.

We begin our analysis by noting that appellant failed to object to the court's jury instructions pertinent to this appeal and the use of a general verdict form at trial. Nevertheless, despite a failure to object, an appellate court can consider plain error that affects substantial rights if the error had the effect of denying the defendant a fair trial. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996); Minn. R. Evid. 103(d) ("Nothing in this rule precludes taking notice of errors in fundamental law or of plain errors affecting substantial rights although they were not brought to the attention of the court."). The plain error test requires a showing that the error was plain and that it affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

Appellant's challenge to the jury instructions meets the plain-error test. Unanimous jury verdicts are required in criminal cases. Minn. R. Crim. P. 26.01, subd. 1(5). We note that the court cautioned the jury that unanimity was required on either or both of the theories. Yet, because the court's instructions were imprecise and indefinite as to which allegations to consider, the instructions denied appellant's right to a unanimous verdict because they allowed the jury to consider separate crimes to justify one charge.

We begin by distinguishing the present case from previous cases in which we affirmed a trial court's single-charge/multiple-theory jury instruction. See State v. Hart, 477 N.W.2d 732, 736, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); State v. Begbie, 415 N.W.2d 103, 105-06 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). In Begbie, the absence of a jury finding as to which person was the victim of terroristic threats did not violate a defendant's right to a unanimous jury verdict. Begbie, 415 N.W.2d at 106. However, in Begbie, the victim's identity was not an element of the crime and the evidence sufficiently supported guilt for threats against either victim. Id.

In Hart, while confronting a similar issue, the court concluded that jurors need not agree on the alternative ways a crime has been committed. Id. at 739. In so concluding, the Hart court relied on the United States Supreme Court's then recent holding in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491 (1991).

The Schad court ruled that it was not unconstitutional to submit different factual theories under one charge. The Supreme Court explained that

[w]e have never suggested that in returning general verdicts * * * jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.

501 U.S. at 631, 111 S. Ct. at 2497. The Supreme Court further explained that "`there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.'" Id. at 632, 111 S. Ct. at 2497 (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 1236-37 (1990) (Blackmun, J., concurring)).

Yet, Begbie, Hart, and Schad are all distinguishable from the present case. The multiple theories in Begbie, Hart, and Schad resulted from one factual occurrence. In the present controversy, the daughter's statement demonstrates that appellant's alleged inducement of her to touch him may have occurred at different times, on multiple occasions, separate from the day he touched her.

Moreover, while the decision in Schad is not controlling, its analysis and reasoning are persuasive. The defendant in Schad also challenged a jury verdict as not unanimous because the court allowed evidence of either premeditated murder or felony murder to support the single charge of first-degree murder. Id. at 630-31, 111 S. Ct. at 2496. While avoiding construction of a bright-line rule to apply in multiple-theory/single-offense cases, the Schad court was able to conclude that, under Arizona law, the mental states of either act were not independent elements, "but rather are mere means of satisfying a single mens rea element." Id. at 637, 111 S. Ct. at 2500. The court elaborated that a state legislature's "`definition of the elements of the offense is usually dispositive'" as to whether an act constitutes a mere mens rea element, or is in fact a separate offense deserving of individual unanimity. Id. at 639, 111 S. Ct. at 2501 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 2415 (1986)). Moreover, the court relied on previous Arizona decisions that had accepted the two mental states as alternative means of satisfying the single charge. Id. at 642, 111 S. Ct. at 2502.

The Schad Court, however, recognized that sometimes even legislation or legal precedent may challenge the contours of constitutional due process; thus, analysis is required to ensure that a person may be punished criminally only upon proof of specific conduct. Id. at 633, 111 S. Ct. at 2497. The Schad majority noted that, whether separate elements are intended to satisfy a single mens rea element should "reasonably reflect notions of equivalent blameworthiness or culpability," in contrast to "a difference in their perceived degrees of culpability [which] would be a reason to conclude that they identified different offenses altogether." Id. at 643, 111 S. Ct. at 2503.

The history and framework of the law in this case demonstrate the trial court's failure to guarantee appellant's right to a unanimous jury verdict. Appellant was charged with criminal sexual conduct in the second degree, which is defined as "sexual contact." See Minn. Stat. § 609.343, subd. 1(a) (1998) (conduct is criminal if complainant is under 13 years of age and the actor is more than 36 months older than complainant). Respondent argued that appellant committed two alternative forms of "sexual contact," defined either as a defendant intentionally touching the complainant's intimate parts, Minn. Stat. § 609.341, subd. 11(a)(i) (1998), or inducement of the complainant to touch the defendant. Id., subd. 11(a)(ii). The original complaint and a portion of the trial court's final instructions inferred that the offenses occurred within the same time frame.

While first-degree criminal sexual conduct is a general intent crime, which focuses more on the result (i.e., penetration), we note that second-degree criminal sexual conduct requires intent. Compare Minn. Stat. § 609.342, subd. 1 (1998), with Minn. Stat. § 609.343, subd. 1 (requiring "sexual contact") and Minn. Stat. § 609.341, subd. 11(a) (defining "sexual contact" to include "sexual or aggressive intent"). In Hart, we explained that first-degree sexual conduct based on penetration was a general intent crime because Minn. Stat. § 609.342, subd. 1, did not include an intent requirement. 477 N.W.2d at 736. Yet, in the present case, the act of "sexual contact" does require intent. See Minn. Stat. § 609.341, subd. 11(a). The jury in Hart was allowed to convict on a general finding that penetration had occurred, regardless of the defendant's intent. However, in the present case, the legislature has clearly required that a jury find that a defendant intended to touch or to induce a touch. Minn. Stat. § 609.341, subd. 11(a)(i), (ii).

We distinguish the present case from those previous decisions that allowed multiple theories to support a single charge because the state charged a series of criminal acts. Unless the state charges a series of criminal sexual acts, courts should avoid single-theory/multiple-event jury instructions. Cf. State v. Shamp, 427 N.W.2d 228, 230-31 (Minn. 1988) (inferring potential for plain error from trial court's failure to distinguish between separate incidents if failure seriously affects substantial rights or error was prejudicial). The prosecution here did not argue that the allegations supported a series of ongoing criminal sexual conduct. Moreover, the prosecution was unable to articulate specific facts supporting appellant's alleged inducement of his daughter to touch him.

Furthermore, the court's instructions relied on two independent acts. Under similar circumstances, we have previously cautioned against the use of "either/or" jury instructions. Hart, 477 N.W.2d at 739. The trial court's final instruction explicitly framed the instruction so that the jury was to convict on either the touching or inducement. But neither charge offered the pattern of events envisioned in Shamp, or the separate general intent crime of Hart.

When the court allowed the jury to consider evidence outside the scope of appellant's admitted touching of the victim, it emphasized the existence of two separate crimes. While jurors may not have to agree on alternative ways a crime was committed, they should be expected to agree on which act was committed. Because we cannot determine for which act appellant was unanimously convicted, it is reasonable to question whether there was in fact unanimity on any one theory. The court's failure to clarify the scope of the jury's focus infringed on appellant's right to a unanimous jury verdict.

Our holding is consistent with rulings in other jurisdictions. The Montana Supreme Court recently explained that, in protecting the guarantee of jury unanimity, courts must avoid joining two or more separate offenses in a single count. State v. Weaver, 964 P.2d 713, 720 (Mont. 1998). The Weaver court further held that, when a series of unrelated allegations of sexual misconduct have been employed to justify different charges, a trial court must give "an instruction to make it clear to the jury that it [is] required to reach a unanimous verdict on at least one specific act for each count." Id. at 721.

The Alabama Supreme Court employed a similar rationale in the attempt to guarantee a jury's unanimity on separate acts for a single charge of criminal sexual conduct. R.A.S. v. State, 718 So.2d 117, 123 (Ala. 1998). The R.A.S. court expanded an "either/or" rule, identical to our own, to include the requirement that, when evidence of both a pattern of events and a specific act are employed to prove a single charged offense, a defendant is entitled "either to have the State elect the single act upon which it is relying for a conviction or to have the court give a specific unanimity instruction." Id. at 122. Moreover, the court further recommended that courts submit special interrogatories to aid the jury reaching a unanimous decision. Id.

If the trial court had employed a special verdict form or special interrogatory, we could determine whether the jury unanimously convicted on a single theory. The Schad Court acknowledged the desirability of verdict specificity and the use of separate verdict forms. 501 U.S. at 645, 111 S. Ct. at 2504. Although there is no requirement under Minnesota law requiring the use of special interrogatories here, on remand, the trial court must ensure that the jury considers the separate theories as distinct charges and acknowledge the different intent requirements. By requiring specificity in the verdict, the court may guarantee unanimity.

The violation of a criminal defendant's right to a unanimous jury verdict is a substantial right. See Minn. R. Crim. P. 26.01, subd. 1(5). Despite appellant's failure to object, violation of this substantial right caused plain error requiring a reversal of appellant's conviction and a remand for proceedings consistent with this opinion. Because we reverse appellant's conviction as a result of the district court's error in its instructions, we neither reach appellant's other arguments regarding the testimony of the child protection specialist and sufficiency of the evidence nor the claims made in appellant's separate pro se brief that have no bearing on this decision.

Reversed and remanded.