State of Minnesota, Respondent, vs. Ge Yang, Appellant
Keith Ellison, Attorney General, Saint Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam Petras, Senior Assistant County Attorney, N. Nate Summers, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Stacy L. Bettison, Assistant Public Defender, Saint Paul, Minnesota, for appellant.
________________________
S Y L L A B U S
Because the State charged one count of first-degree criminal sexual conduct but presented evidence of more than one distinct act, each of which on its own could prove the elements of the charged offense, the district court plainly erred by failing to provide a specific-unanimity jury instruction.
Reversed and remanded.
GAÏTAS, Justice
A jury found appellant Ge Yang guilty of first-degree criminal sexual conduct and second-degree criminal sexual conduct for sexually abusing his minor stepdaughter. The district court entered a conviction for first-degree criminal sexual conduct and sentenced Yang to 144 months in prison. Yang appealed the conviction to the court of appeals, arguing that because the State alleged that multiple penetrative acts occurred at different times and in different locations, the district court plainly erred by failing to provide the jury with a specific-unanimity instruction. The court of appeals, relying in part on its decision in State v. Rucker, 752 N.W.2d 538 (Minn. App. 2008), rejected Yang’s argument and affirmed. We granted Yang’s petition for further review.
Recently, in State v. Keyes, ___ N.W.3d ___, No. A23-1400, 2026 WL 2053029 (Minn. July 15, 2026), we established a framework for determining whether a specific-unanimity jury instruction is required. Because the court of appeals’ decision in Rucker is inconsistent with that framework, we overrule Rucker. Applying the framework from Keyes here, we conclude that Yang was entitled to a specific-unanimity instruction. We further conclude that the district court’s failure to provide such an instruction was plain error that affected Yang’s substantial rights and that we must address the error to ensure the fairness, integrity, and public reputation of judicial proceedings. Accordingly, we reverse Yang’s conviction for first-degree criminal sexual conduct and remand for a new trial on that charge.
In February 2022, 16-year-old A.K. disclosed to her high school advisor that her stepfather, appellant Ge Yang, had sexually abused her. Based on the advisor’s mandatory report, Minneapolis police opened an investigation into the allegations of sexual abuse.
In October 2022, respondent State of Minnesota charged Yang with two counts of criminal sexual conduct. Count 1, first-degree criminal sexual conduct, was charged under Minnesota Statutes section 609.342, subdivision 1(g) (2014),1 which criminalizes sexual penetration if “the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration.” Count 2, second-degree criminal sexual conduct, was charged under Minnesota Statutes section 609.343, subdivision 1(h)(iii) (2014), which criminalizes “sexual contact with another person” if “the actor has a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual contact,” and “the sexual abuse involved multiple acts committed over an extended period of time.” Yang pleaded not guilty to both charges, and a jury trial was held in August 2023.
During the State’s case in chief, the jury heard the testimony of A.K., as well as the testimony of A.K.’s mother, aunt, uncle, and high school advisor. A Minneapolis police sergeant, a child protection investigator, and a forensic interviewer also testified.Those witnesses testified as follows.
In 2013, A.K.’s mother began dating Yang. Around May 2015, A.K. and her mother moved into Yang’s apartment. A few months later, A.K.’s mother and Yang married. At that time, A.K. was around nine years old. A.K. testified that while she lived in Yang’s apartment, Yang inappropriately touched her. He would grab her butt and reach under her shirt to squeeze her breasts. A.K. does not remember when the inappropriate touching began or how many times it occurred, but she testified that it happened “a lot.”
A.K. also testified to sexual abuse that specifically began in the summer of 2015. That summer, A.K. stayed at her grandparents’ home because both her mother and Yang worked during the day. A.K. testified that Yang would pick her up from her grandparents’ home to drive her to dance classes once a week. Before dance practice, Yang would take her to his apartment, where he would be alone with A.K. and would sexually abuse her.
A.K. testified that the abuse primarily took place in two locations in the apartment: A.K.’s bedroom and Yang’s bedroom. A.K. testified that when Yang and A.K. were in A.K.’s bedroom at the apartment, Yang would “tell [A.K.] to take off [her] clothes so [Yang] could touch [A.K.’s] breast and vagina. And [Yang] would go down and lick [A.K.’s] vagina.” He would also “take [A.K.’s] hand and put it in his pants to his penis. And he would force [A.K.’s] hand to go up and down so that he was able to, like, relieve himself.” A.K. stated that this happened “[m]ore than one time” and would occur during the same times that Yang made her take her clothes off and lay down on the bed. Additionally, A.K. testified that Yang sexually abused her in Yang’s bedroom of the
In January 2016, the family moved from the apartment to a townhome in Minneapolis. A.K. testified that, while living at the townhome, Yang continued to touch A.K.’s breasts and butt but no longer made A.K. do anything to his body and no longer made her lay down naked. A.K. testified that one day, while they were living in the townhome, she was sick with a fever and had to stay home from school. She stated that Yang “told [her] to take off [her] clothes so that he could wash [her]. He was very focused on washing [A.K.’s] vagina.”
A.K. testified that she told her aunt that Yang was touching her inappropriately. The aunt testified about such a conversation, which she said took place in February 2015. According to the aunt, she affirmatively raised the issue of abuse with A.K., telling A.K. that if Yang ever did anything inappropriate, A.K. should report it to her. During this conversation, A.K. began crying. But the aunt did not pursue the issue.
Afterwards, the aunt bought A.K. a cell phone so that A.K. could contact her if anything were to happen with Yang. But the aunt did not bring up the subject again or tell anyone about her 2015 conversation with A.K.
Although A.K.’s mother did not support the State’s case against Yang, she was called as a witness during the State’s case in chief. The mother testified that A.K. accused
A.K.’s uncle also testified on behalf of the State. He testified that A.K. told him about the sexual abuse a few days after A.K. reported it to her mother. According to A.K.’s uncle, after disclosing the sexual abuse, A.K. moved out of the townhome and moved in with the uncle and grandparents. A.K.’s uncle testified that A.K. continued to live with him at the time of the trial.
One month after revealing the sexual abuse to her family, A.K. disclosed it to her high school advisor. The high school advisor testified that, as a mandated reporter, he reported A.K.’s allegations to child protection.
As a result of the advisor’s mandated report, a child protection investigator for Hennepin County interviewed A.K. During the interview, A.K. disclosed that she had been sexually abused by Yang. The investigator contacted the police department and referred A.K. to a forensic interviewer. A.K. described details of the sexual abuse during a forensic interview the next day.
A.K. also underwent a physical examination. The parties stipulated that the doctor did not find any physical injuries and that A.K. disclosed sexual abuse consistent with her forensic interview during the examination.
During his testimony at trial, Yang denied all of A.K.’s allegations. He told the jury that he was never alone with A.K. because he “didn’t know her that much.” Yang denied ever taking A.K. to dance class alone, testifying that “[i]t was always either me and her mom or just her mom” that picked her up for class. He also testified that he never bathed A.K., but recalled one instance when A.K. was sick at home with a fever. According to Yang, he called A.K.’s mom during this incident and put a cold cloth on A.K.’s head and neck. He testified that A.K. was fully clothed, and he denied touching any part of her body other than her head and neck. Yang also denied purposely showing A.K. the video of his sexual encounter with A.K.’s mother. But he acknowledged that A.K. accidentally saw the video on his cell phone when she was using his phone to access the internet.
Jury Instructions
After the defense rested, the district court reviewed its proposed jury instructions with the attorneys. Yang’s attorney did not request a specific-unanimity instruction during this discussion or at any other time.
The jury was provided with a general-unanimity instruction, which advised that the jury’s verdict was to be unanimous. But the jury was not instructed on specific unanimity and the jurors were not told that they were required to unanimously agree as to which act had been proven beyond a reasonable doubt.
During closing arguments, the prosecutor focused on the consistency of A.K.’s story across each of the separate disclosures to her family members, to the forensic interviewer, and in her own testimony. The prosecutor’s closing argument referenced multiple alleged instances of penetration by Yang. The prosecutor did not focus on specific instances of penetration, and acknowledged that certain details, like the timing of the abuse, were unclear:
Maybe he did pick her up from dance on occasion. And maybe he did abuse her then. Maybe he was abusing her when Mom was at work and he was home with her after school. [A.K.] wasn’t quite clear. Was it in the evening? Was it the morning? Maybe it was both. Maybe she doesn’t remember because sometimes it would happen in the morning, and maybe sometimes it did happen in the evening. She told you—all this happened a lot.
Yang’s trial attorney argued that A.K. had fabricated her allegations. The defense highlighted inconsistencies in A.K.’s testimony and emphasized the testimony of Yang, A.K.’s mother, and A.K.’s grandmother that Yang never took A.K. to dance class alone.
Following deliberations, the jury found Yang guilty of both counts of criminal sexual conduct. The district court entered a conviction for first-degree criminal sexual conduct and sentenced Yang to 144 months in prison for that offense.
Yang appealed to the court of appeals, arguing that the district court plainly erred by failing to provide the jury with a specific-unanimity instruction for the offense of first-degree criminal sexual conduct.2 The court of appeals affirmed Yang’s conviction. We granted Yang’s petition for review.
Yang argues that he was entitled to a specific-unanimity instruction for the offense of first-degree criminal sexual conduct, which would have required the jury to unanimously agree on the specific penetrative act that the State proved beyond a reasonable doubt. He acknowledges that he did not request a specific-unanimity instruction at trial. But he contends that the district court’s failure to provide such an instruction was plain error.
In State v. Keyes, ___ N.W.3d ___, 2026 WL 2053029, at *15–16, we recently announced a framework for determining whether a specific-unanimity jury instruction is required. Applying that framework here, we conclude that Yang was entitled to a specific-unanimity instruction and that the district court’s failure to provide one was plain error under Keyes. In doing so, we overrule the court of appeals’ decision in State v. Rucker, 752 N.W.2d 538 (Minn. App. 2008), as inconsistent with Keyes. Because we also determine that the district court’s error in failing to provide a specific-unanimity jury instruction prejudiced Yang’s substantial rights and that we should address the error to ensure the fairness, integrity, and public reputation of judicial proceedings, we conclude that Yang is entitled to a new trial for the charge of first-degree criminal sexual conduct.
We begin our analysis by examining the right to jury unanimity and by applying our Keyes framework to the facts presented here.
A.
The right to jury unanimity is derived from the due process requirement that the government must present proof beyond a reasonable doubt of each element of a charged offense in order to convict the accused. See In re Winship, 397 U.S. 358, 364 (1970) (stating that due process requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged”); see also Ramos v. Louisiana, 590 U.S. 83, 93 (2020) (holding that the federal constitutional right to a unanimous jury verdict is incorporated against the states through the Fourteenth
When the State charges one count of criminal conduct and presents evidence of a distinct act to prove the offense, application of these rules is straightforward: to find the defendant guilty, the jury must unanimously agree that each element of the offense was proven beyond a reasonable doubt and must unanimously agree on a guilty verdict. This requirement is referred to as general unanimity. But when the State charges one count of criminal conduct and presents evidence of more than one distinct act, each of which on its own could prove the elements of the charged offense, there is an additional unanimity requirement. The jury must also unanimously agree on the distinct act that proves the elements of the charged offense. Keyes, ___ N.W.3d ___, 2026 WL 2053029, at *13. This requirement is referred to as specific unanimity.
In Keyes, we addressed when a district court in a Minnesota state court prosecution must instruct a jury as to the additional requirement for specific unanimity. We held that “when the State charges one count of a criminal offense but presents evidence of more than one distinct act, each of which on its own could satisfy the elements of the charged offense, a defendant is entitled to a specific-unanimity jury instruction.” Id. at *13. Such an instruction directs a jury to unanimously agree “as to the specific act that proves the elements of the charged offense.” Id.
Our decision in Keyes articulated a framework for courts to use in determining whether a specific-unanimity instruction is required. Id. at *15–16. Under this framework, a court must look to the statute defining the offense to identify the elements of the offense. Id. at *15. A court should distinguish any statutory means for committing the elements from the elements themselves. Id. Once the elements have been identified from the statutory language, a court should move to the second step of the analysis. Id.
The second step of the analysis “requires a court to consider the facts that the State alleged at trial to prove a violation of the statute.” Id. A court must ask “whether the State alleged a single act to satisfy the elements of the statute or multiple distinct acts, each of which on its own could satisfy the elements of the statute.” Id. If the evidence included more than one distinct act, each of which on its own could independently satisfy the elements of the statute, a jury must unanimously agree on which distinct act the defendant committed. Id. A specific-unanimity instruction is required when the State has alleged more than one such act and has charged just one count. Id.
Because the State charged Yang with one count of first-degree criminal sexual conduct but alleged multiple distinct acts, each of which on its own could have proved the elements of the charged offense, Yang was entitled to a specific-unanimity jury instruction.
The State, which did not have the benefit of our Keyes decision for briefing or oral argument, argues that Yang was not entitled to a specific-unanimity instruction. We now address the State’s arguments.
The State contends that because A.K. alleged that Yang committed two different forms of penetration—fellatio while in Yang’s bedroom and cunnilingus while in A.K.’s bedroom—this case involves different “means” and not elements. But the State’s argument that this is a “means” case misapprehends the elements-versus-means distinction that the United States Supreme Court established in Schad v. Arizona, 501 U.S. 624 (1991), abrogated in part on other grounds by Ramos v. Louisiana,
The State also argues that A.K.’s testimony did not allege distinct acts, but rather “examples” of the abuse she experienced. In making this argument, the State relies on the court of appeals’ decision in Rucker, which holds that specific unanimity is not required for “examples” of an act. 752 N.W.2d at 548. In Rucker, the defendant was convicted of criminal sexual conduct for the sexual abuse of two minors. Id. at 544–45. The State alleged multiple instances of sexual contact over a two-year period, occurring in different locations and on different dates. Id. at 543, 548. The court of appeals concluded that a specific-unanimity instruction was not required. Id. at 549. In doing so, the court assessed whether the instances recounted by the victims constituted “distinct allegations” or mere “examples” of abuse:
[T]he prosecution here did not emphasize certain incidents, distinguish as to the proof of some incidents compared to others, or encourage the jury to find certain incidents were more likely to have occurred than other incidents, and appellant did not present separate defenses for each incident of alleged sexual abuse; rather, he simply maintained throughout his trial that he never had sexual contact with either child-victim.
Id. at 548. Thus, the court concluded, the victim’s recollections “served as examples of appellant’s conduct and not distinct allegations of sexual abuse” and specific unanimity was not required. Id.
Analogizing this case to Rucker, the State points to A.K.’s early disclosures to her aunt and mother, none of which were “tied to a specific time or place.” Although A.K.’s later description of the abuse to the forensic interviewer included more specific details, according to the State, A.K.’s allegations only recounted “many episodes and general themes of the sexual abuse she suffered years ago.” The State also points out that it did not emphasize one instance of penetration or encourage the jury to find that certain incidents were more likely to have occurred than others. And it observes that Yang similarly denied all the allegations, focusing instead on discrediting A.K.’s testimony. Given these circumstances, the State urges us to apply the reasoning of Rucker and to conclude that no specific-unanimity instruction was required here.
MOORE, III, Justice (dissenting).
By broadly applying the rigid framework announced in State v. Keyes, ___ N.W.3d ___, No. A23-1400, 2026 WL 2053029 (Minn. Jul. 15, 2026), the court creates uncertainty for district courts and risks unpredictable, inconsistent, and unjust outcomes in criminal sexual conduct cases in two respects. First, it concludes that the district court plainly erred by failing to sua sponte instruct the jury to unanimously identify the specific acts of sexual penetration supporting appellant Ge Yang’s conviction, even though he never raised a specific-unanimity issue at trial. Second, it discards State v. Rucker, 752 N.W.2d 538 (Minn. App. 2008), which until today provided a workable—if imperfect—framework for ensuring jury unanimity in these most sensitive cases involving ongoing sexual abuse. Because I continue to disagree with the court’s reasoning in Keyes and have deep concerns with the application of the test it adopts, I respectfully dissent from the court’s opinion reversing Yang’s conviction for first-degree criminal sexual conduct.
In reversing Yang’s conviction, the court seems to conclude that the State’s charging or presenting evidence of multiple acts in a single count is a per se constitutional violation that can be cured only by instructing the jury that they must specifically agree on which act(s) the defendant committed before returning a guilty verdict. But as I explained in my Keyes dissent, the United States Supreme Court’s decisions in Schad v. Arizona, 501 U.S. 624 (1991), abrogated in part on other grounds by Ramos v. Louisiana, 590 U.S. 83 (2020), and Richardson v. United States, 526 U.S. 813 (1999), do not compel this result because they considered a different issue than one presented here.
In my view, the charge at issue does not implicate the due process concerns underlying the duplicity doctrine as other courts have developed it. The facts here present a closer call than those in Keyes, but here, too, I believe there was no genuine risk of a non-unanimous verdict as to the penetration charge for several fact-specific reasons. Moreover, defense counsel chose not to request a specific-unanimity instruction and instead strategically relied on A.K.’s allegations of multiple acts to challenge A.K.’s credibility during closing argument. And unlike in Keyes, the district court could have justifiably sentenced Yang separately for each violation under our sentencing law had the State elected to charge them individually. For these same reasons, the interests of justice and public perception of the fairness of judicial proceedings do not compel us to reverse
Yang’s conviction on the first-degree count on plain-error review.1
For these reasons, I respectfully dissent.
A.
Before turning to this case, I briefly note several points discussed in my Keyes dissent. Schad expressly warns of “the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitution”—a caution the court does not heed. 501 U.S. at 637. Likewise, Richardson did not purport to develop such a test—it confirmed Schad’s core proposition: the due process clause limits the State’s power to define criminal offenses such that the statutory alternatives for satisfying a particular element vary so dramatically that they cannot reasonably be considered alternative means. 526 U.S. at 820. These offenses would risk “serious unfairness” to the defendant because charging a single count in the absence of a specificunanimity instruction might conceal “wide disagreement among the jurors about just what the defendant did, or did not, do.” Id. at 820. At the same time, these cases only consider “alternative statutory means for committing one offense” and “do not …
The issue of unanimity as to an element of the offense “implicates different concerns” than a duplicitous charge. State v. Douglas C., 285 A.3d 1067, 1082–83 (Conn. 2022); see also United States v. Newell, 658 F.3d 1, 21 (1st Cir. 2011) (differentiating unanimity concerns based on elements of the offense from those based on the “structure of [an] indictment” that “bundle[s] multiple discrete violations of the statute under single counts”). In the former situation, as in Schad and Richardson, the issue is whether the statutory language reasonably contemplates alternative means of satisfying a single element, or in fact creates multiple alternative or distinct elements. In the latter, the issue is whether the defendant may be convicted on a single count based on evidence of multiple, separate violations of the statute. Schad and Richardson simply did not address the latter issue. Yet the court treats these cases as declaring a duplicitous charge per se unconstitutional absent a specific-unanimity instruction, effectively finding plain error where precedent does not require it and sowing uncertainty in the trial courts.
and due process of law may prohibit combining what could be several independent charges into a single count, even if the text of a particular statute allows it.” United States v. Root, 585 F.3d 145, 154 (3d Cir. 2009) (emphasis added). Thus, “ ‘[i]f the doctrine of duplicity is to be more than an exercise in mere formalism, it must be invoked only when’ ” the nature of the specific charge at issue implicates “ ‘policy considerations’ that underlie that doctrine.” United States v. Margiotta, 646 F.2d 729, 732–33 (2d Cir. 1981) (alteration in original) (quoting United States v. Murray, 618 F.2d 892, 897 (2d Cir. 1980)).
Second, and more perplexing, is the court’s suggestion that specific unanimity may not have been required had the State charged Yang under Minn. Stat. § 609.342, subd. 1a(h)(iii) (formerly Minn. Stat. § 609.342, subd. 1(h)(iii) (2014)). See supra at 17. This statute permits charging a single count of first-degree criminal sexual conduct if the defendant “has a significant relationship to the complainant” and the defendant’s course of conduct “involved multiple acts [of penetration] committed over an extended period of time.” Id. But the court’s opinion does not address the tension between its bright-line rule and the constitutionality of such a course-of-conduct charge.
The most plausible explanation is that course-of-conduct charging can be constitutionally permissible because, until now, the Legislature has authorized it only when charging multiple acts in a single count is not so “fundamental[ly] [un]fair[]” as to violate due process. Cf. Schad, 501 U.S. at 637. The court’s categorical “separate offenses” rule is difficult to reconcile with that understanding.
Factual concurrence must be viewed on a case-by-case basis …. “[S]ince the set of material issues changes composition with the facts of each case, precedents cannot necessarily be used to construct a clear definition of materiality.” Statutory language and construction, legislative intent, historical treatment of the crime by the courts, duplicity concerns with respect to defining the offense, and the likelihood of jury confusion in light of the specific facts presented are all necessary inquiries to be addressed before a trial judge can ascertain whether he must instruct the jury to concur in predicate facts as well as in result.
Id. at 1082 (second alteration in original) (quoting Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson, 91 Harv. L. Rev. 499, 502 & n.27 (1977)). As I stated in Keyes, the core inquiry should center on “a distillate of the concept of due process with its demands for fundamental fairness,” ___ N.W.3d ___, 2026 WL 2053029, at *23 (quoting Schad, 526 U.S. at 637), which, in the duplicity context, depends on “whether the actions charged are so dissimilar” so as to implicate the due process considerations I discuss below, see Correa-Ventura, 6 F.3d at 1081.
Considering the specifics of this case, the State presenting evidence of multiple acts that could satisfy the penetration element of the relevant statute absent a specificunanimity instruction does not by itself warrant reversal. I agree with the court that Minn. Stat. § 609.342, subd. 1(g) (2014),3 under which Yang was charged, unambiguously has a single instance of sexual penetration as an element. If subdivision 1(g) contemplated multiple acts of penetration occurring over a period of time, subdivision (1)(h)—which criminalizes ongoing sexual abuse of minors—would be superfluous. Indeed, the only difference between the statutory language of these two subsections is the Legislature’s addition of “and . . . the sexual abuse involved multiple acts committed over an extended period of time” in subdivision 1(h). Compare Minn. Stat. § 609.342, subd. 1(g) (2014), with id., subd. 1(h) (2014). Thus, the first-degree charge under subdivision 1(g) was duplicitous because it charged multiple completed offenses under a single count.4
As cases from other jurisdictions agree, a duplicitous charge is reversible only if the duplicity prejudices the defendant. See, e.g., United States v. Singer, 782 F.3d 270, 276 (6th Cir. 2015), abrogated on other grounds by Musacchio v. United States, 577 U.S. 237 (2016); United States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006); United States v. Olmeda, 461 F.3d 271, 281 (2d Cir. 2006); State v. Roberts, 14 P.3d 713, 737 (Wash. 2000) (en banc). This analysis considers whether combining multiple acts in a single charge would result in inadequate notice to the defendant of the State’s theory of liability, create a risk that a general verdict of guilty would conceal a finding of guilty as to one act and not guilty as to another, or affect appropriate sentencing. See, e.g., Douglas C., 285 A.3d at 1078; United States v. Margiotta, 646 F.2d 729, 732–33 (2d Cir. 1981). Because we are reviewing Yang’s conviction rather than an indictment, we can and should evaluate the risk of a non-unanimous verdict “in light of the specific facts presented” and the State’s characterization of the acts at trial. See Correa-Ventura, 6 F.3d at 1082. I address each of these due process considerations in turn.
1.
Beginning with notice, evidence of multiple acts of penetration had no appreciable effect on Yang’s ability to understand or defend against the charges. A.K.’s prior statements described with some specificity when, where, and how the penetration occurred: at Yang’s apartment before he drove her to dance class. And, as I discuss below, the circumstances surrounding the acts of penetration were materially identical. Yang’s primary defenses—that A.K. fabricated her testimony to escape living with her mother and secure financial benefits from the foster system that enabled her to go to college, that A.K. disclosing the abuse to her aunt pre-dated her move to Yang’s apartment, and that Yang never picked her up from school or drove her to dance alone—all go to the overall credibility of A.K.’s testimony, not the occurrence or non-occurrence of particular acts of penetration. And those defenses apply equally to each act.
For related reasons, I disagree with the court’s conclusion that the State’s charging decisions and presentation of evidence created a genuine risk that the jury’s verdict on the first-degree count was not unanimous as to the underlying act(s). Granted, the acts of penetration could have occurred over a much longer period than the 45-minute assault we considered in Keyes. The State argued, based on A.K.’s testimony, that the acts of penetration took place during the approximately nine-month period where A.K. and her family lived in Yang’s apartment. In most cases, I would be deeply concerned about packaging multiple distinct offenses occurring that far apart into a single charge.
Here, however, it is evident that the State’s evidence and arguments did not create a genuine risk of disagreement among the jurors as to which acts supported the firstdegree charge for several fact-specific reasons. First, the circumstances of the acts of penetration were identical in every material respect. A.K. testified that both acts took
Thus, at the time the jury was instructed, there was no genuine risk that a general verdict of guilty would conceal disagreement among the jurors as to the facts constituting the sexual penetration element of first-degree criminal sexual conduct. “[T]he jury either … believe[d] [A.K.]’s testimony that the consistent, repetitive pattern of acts occurred or disbelieve[d] it. In either event, [Yang had] his unanimous jury verdict … and the prosecution will have proven beyond a reasonable doubt that [he] committed a specific act ….” See People v. Jones, 792 P.2d 643, 659 (Ca. 1990) (citation omitted) (internal quotation marks omitted).
Finally, we turn to sentencing considerations. See Douglas C., 285 A.3d at 1078. Here, unlike the defendant in Keyes, Yang could well have received a separate sentence for each act of penetration had the State elected to add counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g) (2014). Because these were separate completed offenses that occurred as far as nine months apart, these crimes would not be considered a single behavioral incident under our sentencing law because they occurred at substantially different times. See State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014) (“Offenses are part of a single course of conduct if the offenses occurred at substantially the same time and place and were motivated by a single criminal objective.”); State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (clarifying that, when two or more offenses occur in substantially the same place, “we consider [only] whether the offenses occurred at substantially the same time, and whether they were motivated by an effort to obtain a single criminal objective”). And although the criminal objectives
Federal courts of appeals recognize that aggregating multiple acts into a single charge may be warranted to “avoid unnecessarily complex and confusing allegations and the concomitant prejudice to [the defendant] of charging him with [multiple] substantive counts arising out of the same scheme.” See, e.g., United States v. Robinson, 651 F.2d 1188, 1194–95 (6th Cir. 1981). And here, far from prejudicing Yang, he arguably “benefitted from the aggregation because each discrete count would have been amenable to a separate sentence upon conviction.” United States v. Kamalu, 298 F. App’x 251, 254–55 (4th Cir. 2008) (emphasis added); see also Cohen v. United States, 378 F.2d 751, 754 (9th Cir. 1967) (“The government is to be commended rather than criticized for treating all such [acts] for the same purpose during a brief period as one crime subject to a single statutory penalty.”).
I agree with the court’s statement in Keyes that there is little burden, at least from the district court’s perspective, in providing a specific-unanimity instruction and it is best for the court to do so in close cases. But that does not address the question we are asked to decide. The issue here is whether a specific-unanimity instruction was required—and, what’s more, whether it was plain error warranting reversal for the district court not to sua sponte provide that instruction on these facts. If the allegedly duplicitous charge does not prejudice, and indeed arguably benefits, the defendant, there is no judicial error to cure.
On that point, Yang has forfeited appellate review of the specific-unanimity issue by failing to object to the jury instructions or otherwise raise the issue at trial, and the court can order relief only if Yang’s claim falls under our plain-error exception. See, e.g., State v. Gilleylen, 993 N.W.2d 266, 280 (Minn. 2023).5 Even if I were to agree that Yang has carried the “heavy burden,” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998), of showing that the district court’s decision affected his substantial rights—a doubtful proposition given that there was no actual risk of a non-unanimous verdict—we could reverse his conviction only if failure to grant a new trial would “ ‘seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).
In Keyes, I reviewed social and biological science research explaining how trauma can hinder survivors’ capacity to remember and narrate traumatic events coherently. ___ N.W.3d ___, 2026 WL 2053029, at *31–33. That is true even for adult victims of recent trauma, and even when the trauma’s lasting effects do not rise to the level of diagnosable post-traumatic stress disorder. See id. at *32 (citing scholarship). And it is especially true for child victims. A child’s memory and recall are likely to be even more impacted by often-substantial reporting delays, social or family pressure, and cognitive-developmental differences between children’s and adults’ encoding and retention of memories. Meaghan C. Danby, Five Considerations About Memory Processes for Child Investigative Interviewers, 18 Policing: J. Pol. & Prac. 1–7 (2024) (further noting that children are more prone to memory errors than adults when recalling and recounting specific incidents in a pattern of ongoing abuse). For exactly those reasons, Richardson itself stressed—even if only in dicta—that statutes criminalizing sexual abuse of a minor may “represent an exception” from its analysis because of the “special difficulties of proving individual underlying criminal acts.” 526 U.S. at 821. “To apply strict specific unanimity requirements in [cases involving ongoing sexual abuse of children] would place an unwarranted burden on young victims of sexual assault, essentially penalizing them for providing whatever limited, specific details they might be able to recall to corroborate their stories.” Douglas C., 285 A.3d at 1124 (Mullins, J., concurring). Because the court’s novel categorical rule, unsupported by binding authority, would produce these outcomes and risk inconsistency in cases requiring careful, uniform application of the law—and because Yang cannot meet the plain-error standard for reversal—I respectfully dissent and would affirm his conviction.
MCKEIG, Justice (dissenting).
I join in the dissent of Justice Moore, III.
HENNESY, Justice (dissenting).
I join in the dissent of Justice Moore, III.