State v. White Face, 857 N.W.2d 387

Background

In March 2011, infant Pamela sustained a fractured femur while in Patrick White Face’s care (March 24); four days later (March 28) she was found comatose and suffered multi‑organ failure and permanent brain injury. Medical experts disagreed on causation; prosecution’s experts called both injuries non‑accidental, defense experts disputed that conclusion.
The State initially indicted for the March 24 incident, later dismissed that indictment and re‑indicted White Face alleging aggravated child abuse occurring between March 24 and March 28 (a single‑count indictment covering both incidents).
At trial the State argued the two incidents could be treated as a continuous course of conduct and urged the jury it could convict on either incident (or both); defense requested a unanimity instruction requiring the jury to agree on which incident supported conviction.
The trial court refused the requested special unanimity instruction; the jury returned a general unanimous guilty verdict on the single count. The court sentenced White Face to 25 years (five suspended) and ordered substantial restitution.
On appeal White Face challenged, among other things, the lack of a unanimity instruction given the indictment’s charging of two distinct incidents in one count.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a special unanimity instruction was required when a single count alleged two distinct incidents	State: the charge alleged a course of conduct between dates; unanimity not required because offense can be continuous	White Face: jury could divide (some jurors rely on March 24, others March 28), so court must instruct unanimity or require election	Court held a special unanimity instruction was required; reversal and new trial ordered
Whether the requested instruction (requiring proof of both incidents) was proper	State: not required; evidence presented continuous abuse theory	White Face: requested instruction prevented non‑unanimous mixed‑act verdicts	Court held the requested instruction was improper in form because it required proof of both acts, but court nevertheless erred in failing sua sponte to give an appropriate unanimity instruction
Whether the defendant waived unanimity claim by not timely attacking the indictment	State: defendant waived duplicity challenge by failing to move pretrial	White Face: preserved unanimity concern at instruction conference; court has a sua sponte duty when evidence requires	Court held issue not waived as to unanimity instruction; trial court had duty to instruct when evidence risked jury division
Whether the two incidents constituted a single continuous course of conduct (so unanimity unnecessary)	State: pattern of physical trauma in short period supports single course theory	White Face: evidence showed two discrete incidents with different mechanisms and risk of juror division	Court held evidence supported two discrete incidents, not clearly a continuous course; unanimity instruction was required

Key Cases Cited

State v. Muhm, 775 N.W.2d 508 (discusses duplicity and unanimity risk where single count covers multiple offenses)
State v. Tiegen, 744 N.W.2d 578 (reviews due process and unanimity instruction questions de novo)
People v. Vargas, 204 Cal. App. 3d 1455 (continuing course of conduct doctrine in child abuse cases where unanimity not required)
People v. Russo, 25 Cal. 4th 1124 (framework for when unanimity instruction is required vs. when evidence shows single offense)
Napoles, People v., 104 Cal. App. 4th 108 (child abuse may be single act or continuing course; unanimity depends on facts)
State v. Augustine, 614 N.W.2d 796 (discussion that individual acts of child abuse can be successive violations)
State v. Pellegrino, 577 N.W.2d 590 (defendant entitled to instructions on defense theory when supported by evidence)
State v. Webster, 637 N.W.2d 392 (standard for reviewing refusal of jury instructions)