Background
In February 2022, Tracey Dee Keyes entered the home of his former intimate partner, S.B., under the pretense of retrieving his belongings. According to S.B., Keyes attacked her and forced her to perform oral sex on him twice during the encounter — once in the bedroom and once in the living room — over a period of approximately 45 to 60 minutes. Keyes was charged with one count of first-degree criminal sexual conduct under Minn. Stat. § 609.342, along with third-degree assault, threats of violence, and false imprisonment. DNA evidence from S.B.’s sexual assault examination matched Keyes.
At Keyes’s second trial, the State’s theory was that both instances of penetration — the bedroom incident and the living room incident — each independently satisfied the elements of first-degree criminal sexual conduct. Before the jury was instructed, Keyes’s counsel requested a specific-unanimity instruction, which would have required the jury to unanimously agree on which particular act of penetration proved the charged offense. The district court denied the request, reasoning that the entire episode constituted one continuous 45-minute behavioral incident. The jury convicted Keyes on all counts, and he was sentenced to 360 months in prison.
Keyes appealed, arguing that the absence of a specific-unanimity instruction violated his constitutional right to a unanimous verdict. The Minnesota Court of Appeals affirmed, concluding that Keyes had forfeited the issue and, in any event, that no plain error occurred because the two acts were part of a single behavioral incident. The Minnesota Supreme Court granted further review.
The Court’s Holding
Writing for the majority, Justice Gaïtas first held that Keyes had adequately preserved the specific-unanimity issue. Although the post-denial exchange between counsel and the court was ambiguous, Keyes’s counsel never expressly withdrew the request and indicated she might renew it after the prosecutor’s closing argument. That initial, preserved request was sufficient to trigger abuse-of-discretion review rather than the more demanding plain-error standard.
On the merits, the court established a two-step framework: a court must first identify the statutory elements of the charged offense, then determine whether the State alleged more than one distinct act, each of which could independently prove those elements. Where both conditions are met, a defendant is entitled to a specific-unanimity instruction. The court held that the district court abused its discretion under this framework because the State alleged two discrete acts of nonconsensual sexual penetration — separated in time and location — either of which standing alone was sufficient to prove first-degree criminal sexual conduct. The fact that the acts occurred during a single continuous encounter did not collapse them into a single act for unanimity purposes.
The court further concluded the error was not harmless beyond a reasonable doubt. Without the specific-unanimity instruction, it was reasonably likely that six jurors credited the bedroom incident while six credited the living room incident — a split that would deny Keyes his constitutional right to a unanimous verdict. The court reversed and remanded for a new trial on the first-degree criminal sexual conduct charges. Justices Moore III, McKeig, and Hennessy dissented.
Key Takeaways
- When the State charges a single count of a crime but presents evidence of two or more distinct acts, each independently sufficient to prove the offense, the defendant has a constitutional right to a specific-unanimity instruction requiring the jury to agree on which act they found proven.
- The analytical framework requires courts to first identify the statutory elements of the offense, then assess whether the State has alleged distinct acts — not merely alternative means — that could each satisfy those elements. Temporal and physical separation between alleged acts weighs in favor of treating them as distinct.
- A preserved request for a specific-unanimity instruction is not forfeited merely because defense counsel signaled possible flexibility pending the prosecutor’s closing argument, so long as the request was never expressly withdrawn.
- A general unanimity instruction is insufficient when specific unanimity is required; failure to give the specific instruction is not automatically harmless where a genuine risk of juror disagreement on the underlying act exists.
Why It Matters
This decision is the Minnesota Supreme Court’s first substantive treatment of specific-unanimity requirements outside the plain-error context, and it supplies a clear, element-focused framework that trial courts must apply going forward. Prosecutors who present evidence of multiple discrete acts under a single-count charging theory now face a heightened obligation to anticipate and address specific-unanimity demands; failure to do so may require a new trial even where a general unanimity instruction was given.
The ruling also has significant implications for domestic violence and sexual assault prosecutions, where multiple discrete acts frequently occur in a single encounter. Defense attorneys can now rely on this decision to demand specific-unanimity instructions whenever the State’s evidence involves spatially or temporally distinct acts, and the four-Justice dissent signals ongoing judicial debate about how broadly to define “distinct acts” — making this an area of Minnesota law likely to see continued litigation.