                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1784

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                John Edward Hall, Jr.,
                                     Appellant.

                               Filed October 5, 2015
                              Reversed and remanded
                                    Ross, Judge

                            Olmsted County District Court
                              File No. 55-CR-13-4673

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and

Harten, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

ROSS, Judge

       A jury heard evidence that John Hall had assaulted and threatened his former wife

on two different days and found him guilty of domestic assault and making a terroristic

threat. Hall contends that the district court should have given a specific-unanimity

instruction to ensure that the jury would convict him only if every juror based his or her

guilty verdict on conduct that occurred on the same day. Because the instructions did not

require the jury to unanimously agree on which allegedly criminal acts Hall committed

and the jury received evidence that might have supported a conviction based on different

behavior occurring on different days, the guilty verdict cannot support Hall’s conviction.

We find plain error and reverse Hall’s convictions and remand for a new trial.

                                         FACTS

       John Hall’s former wife, C.H., allowed Hall to stay in her home in early July 2013

because Hall had been consuming alcohol and the halfway house where he had been

residing prohibits alcohol use. After Hall admittedly spent a binge week “watching T.V.

and eating and passing out and drinking,” on July 16 C.H. dialed 9-1-1 to report that Hall

threatened to kill her and her family.

       Police arrived and Hall answered the door drunk. C.H. appeared to have been

crying. She told one officer that Hall had just made the reported threat if she refused to

give him money for more alcohol. Specifically, Hall had said “that he had a .45 and that

he would get it.” She explained that Hall had made similar threats the previous evening,

which she had recorded. She played the audio recording to the officers:


                                            2
Hall: I asked you for 20.

C.H.: I already gave you 20, John.

....

Hall: Are you gonna be a f---ing b---h? F---ing not give me
another 20? Then, I—I can’t be responsible for the
consequences - responsible for—all you can really do is put
me in jail. And that’s fine. ‘Cause I’ll get out and then I will
really be f---ing pissed. And I will f---ing murder people.
F---ing, I will murder your grandma, your grandpa, your
sister, your other sister. I’ll roll out to f---ing Oakland and
murder your brother. Since he’s too big of a f----t to come
here and protect his sister. And, when I’m done, I’ll murder
you. Think I’m kidding? For 20 bucks. Think I’m kidding?
Do I look like I’m kidding? I’ll have you in that chair before
I’m kidding. I murder people for a living. And get away with
it. Don’t think I’m f---ing clowning. Don’t ever for—f--- with
me. You listen to me. (Unintelligible). Oh, I’ll—I’ll do my
five years and I’ll get out and I’ll do it and I’ll rock it. I’ll rent
cars, I will get b---hes. I will (unintelligible). For God
d--- sure. And after those, those (unintelligible). And I will
kill everyone in your f---ing family. Don’t think I’m kidding.
Don’t ever, ever, ever, ever. So, sit down and eat your dinner
and think about if you might have swiped that card from me.
All right? Does that sound like it’s—our—our
(unintelligible). I’m a little intoxicated right now. But I will
sober up. And that’s all I want. A bottle. All right? To borrow
me (unintelligible). Think about it. Do you want your family
dead? ‘Cause I’ll kill them all. And I’ll go to prison for life. I
don’t give a f---. I been to prison. It ain’t sh--. I’ll do it. I’ll do
it again. And I’ll do it again. And I’ll do it again. Okay? I will
go to f---ing prison for life. If that means taking your family.
You - your whole mother-f---ing family out. You laughing?
You think that’s funny?

C.H.: (shouting) Don’t! Stop it! Get out of here!




                                  3
               Hall: Think that’s funny? You want to laugh at me? Don’t
               ever laugh at me.1 . . . And get away with it. Don’t ever think
               I won’t.

               C.H.: Get your finger out of my face! (shouting) Don’t touch
               me!

               Hall: You call Abby and find out what kind of n----r I am.
               Who the f--- I was in my twenties.

               C.H.: Leave me alone, please.

               Hall: You don’t care - I’ll smack the sh-- out of you. And
               sh--. Call the cops on me? That’s right. I’ll do my time. But
               guess what? When I get out, I’ll be healed, legs won’t hurt no
               more. And n----rs gonna go to the graves. Starting with your
               grandma and your grandpa. Who are already in their graves
               anyway. . . . (Unintelligible). Try me. See what’s up. See
               what I’m about.

C.H. explained to the officer that, during the exchange, Hall struck her in the face.

        Police arrested Hall, who told an officer that he would “beat [his] a-- and put [him]

in the hospital.”

        The state charged Hall with two crimes occurring “[o]n or about July 16, 2013.” It

charged him with one count of making terroristic threats to commit a violent crime, under

Minnesota Statutes section 609.713, subdivision 1 (2012), and one count of fear-based

domestic assault, under Minnesota Statutes section 609.2242, subdivision 4 (2012). At

the beginning of Hall’s trial, the prosecutor suggested that she would amend the

complaint to refer specifically to both July 15 and 16 rather than using “the on or about

language.” The district court deemed the amendment unnecessary and the case proceeded

without it.

1
    The recording depicts no audible laughter.

                                              4
       The state’s witnesses testified to Hall’s allegedly threatening conduct on both

dates, July 15 and 16, and the jury heard the audio recording.

       Hall claimed that C.H. was “a liar” and that the recording was made years earlier.

He challenged C.H., cross-examining her about the date of the recording and asking,

among other things, whether she had “ever writ[ten] down anything on paper stating that

[the recorded incident] had happened at a different time than the night before.”

       After this focus at trial on the date of the recorded threatening comments, the

district court finally directed the state to amend the complaint to change the date of the

offensive conduct from “[o]n or about July 16” to “on or about July 15.” The court did

not reopen the case for additional evidence about the date of any of the conduct. Echoing

the amended complaint, it instructed the jury that it could find Hall guilty if it found that

he engaged in criminal conduct “on or about July 15.” The prosecutor’s closing argument

referred to Hall’s conduct on both July 15 and July 16.

       The jury found Hall guilty on both counts, and the district court sentenced Hall to

20 months in prison for terroristic threats. It did not sentence him for the domestic-assault

conviction.

       Hall appeals his convictions.

                                       DECISION

       Hall argues that his convictions should be reversed for three reasons. We begin

and end only with his argument that the district court committed plain error by failing to

provide a specific-unanimity instruction.




                                             5
       Hall argues that the district court erroneously instructed the jury that a guilty

verdict required it to find that Hall had engaged in criminal acts “on or about July 15”

because the instruction’s imprecise date allowed different jurors to base their guilty

verdict on different conduct. Hall neither requested a specific-unanimity instruction at

trial nor objected to the instructions given, so we will review the instructions only for

plain error. See State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002). Under this standard,

Hall can secure a reversal only if he shows that the district court erred by not giving the

instruction, that the error was plain, and that the error affected his substantial rights. State

v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). Hall must also establish that we should

reverse because failing to reverse would “seriously affect[] the fairness, integrity, or

public reputation of judicial proceedings.” Id. (quotation omitted).

       Criminal jury verdicts must be unanimous. State v. Pendleton, 725 N.W.2d 717,

730 (Minn. 2007). That is, the jury must “unanimously agree on which acts the defendant

committed if each act itself constitutes an element of the crime.” State v. Stempf, 627

N.W.2d 352, 355 (Minn. App. 2001). To find Hall guilty of domestic assault, the jury had

to find that he acted “with intent to cause fear in another of immediate bodily harm or

death.” Minn. Stat. § 609.2242, subd. 1 (2012). To find him guilty of making terroristic

threats, it similarly had to find that he threatened to “commit any crime of violence with

purpose to terrorize another . . . or in a reckless disregard of the risk of causing such

terror.” Minn. Stat. § 609.713, subd. 1 (2012).

       Hall argues that the instructions leave unclear whether the jury convicted him

unanimously. The argument accurately highlights an instructional error. It is clear from


                                               6
the record that the state presented evidence that Hall threatened to kill C.H. It is equally

clear that the state presented evidence of a qualifying threat occurring on July 15 and

other evidence of a qualifying threat occurring on July 16. Either day’s alleged

threatening conduct might satisfy the elements of either charge. The district court

recognized this, opining expressly that the state had essentially alleged four separate

crimes while charging only two. After receiving all the evidence, the district court

attempted to remedy the problem that the prosecutor had noticed and tried to fix at the

beginning of trial. It did so by instructing the jury vaguely to consider Hall’s conduct “on

or about July 15.” We think this attempted remedy fails to fix the problem. The on-or-

about instruction invited the jury to consider Hall’s acts “on” July 15 and also his acts

“about” July 15. July 16 is of course “about” July 15. A unanimity instruction in this case

was therefore essential, and failure to give the instruction is plainly an error.

       Hall meets his heavy burden of showing prejudice. Prejudice exists if there is a

reasonable likelihood that a specific-unanimity instruction “would have had a significant

effect on the verdict of the jury.” State v. Wenthe, 865 N.W.2d 273, 299 (Minn. 2015)

(quotation omitted). An instruction requiring jurors to find guilt based on the same

conduct would have affected the verdict if the jury received evidence of separate acts and

some jurors could have reasonably concluded that only one of these acts constituted the

charged crime while other jurors could have reasonably believed that only another act

was a crime. See id. at 300. That is the case here. The district court essentially asked the

jury to base its verdict on conduct occurring on either date or on both dates. Given the on-

or-about instruction and the jury’s general verdict of guilt, no one can know whether all


                                               7
jurors based their decision on the same arguably culpable conduct. The jury verdict

demonstrates that all jurors believed part of C.H.’s testimony, but it does not establish

that all jurors believed all of her testimony. See State v. Holbrook, 305 Minn. 554, 557,

233 N.W.2d 892, 894 (1975) (holding that a jury can choose which aspects of a witness’s

testimony to accept). Some jurors might, for example, have convicted Hall based on

evidence of his threats on July 15, and others based on evidence of his threats on July 16.

Some may have believed the recording was made years before July 15 (as Hall argued)

and yet believed C.H.’s report to police that Hall had threatened her on July 16. Others

might have been convinced by the recording and testimony that Hall threatened C.H. on

July 15 but doubted that he repeated the threats on July 16. Some jurors might have

believed that both accounts occurred as C.H. stated, but that Hall’s alleged threats of July

16—“that he had a .45 and that he would get it”—satisfied the immediacy requirement in

the domestic assault statute while Hall’s recorded threats allegedly of July 15 did not.

       None of these potential conclusions is unreasonable based on the testimony and

argument. Hall has shown the requisite prejudice requiring us to consider reversing his

convictions based on the plain error. Because the guaranty of a unanimous verdict is

fundamental to establishing guilt and the risk of an unclear verdict was so evident that

both the prosecutor and the district court recognized that the dates in the charge could

result in an unclear verdict, under the circumstances of this case we also conclude that a

new trial is necessary to ensure the fairness, integrity, or public reputation of judicial

proceedings generally.




                                             8
We reverse and remand for a new trial. We do not address Hall’s other arguments.

Reversed and remanded.




                                    9
