                        This opinion will be unpublished and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
                                   A14-1442

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Octavius Marcus Johnson,
                                     Appellant.

                               Filed August 10, 2015
                              Reversed and remanded
                                 Klaphake, Judge*

                            Ramsey County District Court
                              File No. 62-CR-13-1497

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       On appeal from his convictions for second-degree assault, terroristic threats, and

criminal damage to property, appellant Octavius Marcus Johnson argues that the district

court erred by failing to provide the jury with a specific unanimity instruction, allowing

the jury to choose between two separate acts to reach a single verdict. We reverse and

remand.

                                     DECISION

       Appellant argues that the district court erred in not providing the jury with a

specific unanimity instruction. Because appellant did not object to the instruction at trial,

we review this issue for plain error. State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013).

“Under a plain error analysis, [appellant] must show that (1) there was error; (2) the error

was plain; and (3) his substantial rights were affected.” Id.

1. Error

       District courts are given “considerable latitude in selecting the language of jury

instructions, but instructions may not materially misstate the law.” State v. Baird, 654

N.W.2d 105, 113 (Minn. 2002). “[W]e review the jury instructions in their entirety to

determine whether the instructions fairly and adequately explain the law of the case.”

State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotation omitted).

       At trial, the jury was presented with evidence that appellant engaged in two

distinct criminal acts. First, the state presented evidence that appellant struck L.F.’s

Buick, which contained several passengers, with a baseball bat.           Second, the state


                                             2
presented evidence that appellant, along with his co-defendant Abraham Houle,

intentionally hit that same Buick with Houle’s Jeep at least one hour later. Appellant

argues that because two separate acts were presented to the jury, the district court erred in

not instructing the jury that it needed to unanimously agree on which act satisfied the

criminal element of each offense to reach a unanimous verdict on each count.

       In all criminal cases, a jury’s verdicts must be unanimous. Minn. R. Crim. P.

26.01, subd. 1(5). “[T]he jury need not always decide unanimously which of several

possible means the defendant used to commit the offense in order to conclude that an

element has been proved beyond a reasonable doubt.” State v. Ihle, 640 N.W.2d 910, 918

(Minn. 2002); see also State v. Pendleton, 725 N.W.2d 717, 731 (Minn. 2007) (“[T]he

jury does not have to unanimously agree on the facts underlying an element of a crime in

all cases.”); State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987) (“[U]nanimity is

not required with respect to the alternative means or ways in which the crime can be

committed.” (quotation omitted)), review denied (Minn. Jan. 20, 1988). “On the other

hand, 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).

       In Stempf, the state charged the defendant with a single count of possession of

methamphetamine “but alleged two distinct acts to support a conviction: (1) that he

possessed methamphetamine found at . . . his workplace; and (2) that he possessed

methamphetamine found in the truck in which he was riding when he arrived at work.”

Id. at 357. The district court denied the defendant’s request for an instruction that


                                             3
required the jurors to unanimously agree on which act was proven. Id. at 354. On

appeal, we determined that “[w]here jury instructions allow for possible significant

disagreement among jurors as to what acts the defendant committed, the instructions

violate the defendant’s right to a unanimous verdict.” Id. Specifically, we stated that

“the jury must unanimously agree on which acts the defendant committed if each act

itself constitutes an element of the crime.” Id. at 355. We concluded that the district

court’s “refusal to give a specific unanimity instruction violated [the defendant’s] right to

a unanimous verdict” because “[s]ome jurors could have believed [the defendant]

possessed the methamphetamine found on the premises while other jurors could have

believed [the defendant] possessed the methamphetamine found in the truck.” Id. at 358.

         Similar to Stempf, the state here charged appellant with only one count of each

crime – second-degree assault, terroristic threats, and criminal damage to property1. Each

charged offense required the jury to find that the appellant engaged in a certain overt act,

and the state had the burden of proving that, on the date in question, appellant made such

an act in furtherance of each crime. See Minn. Stat. § 609.222, subd. 1 (2012) (requiring

findings that a defendant “assault[ed] another with a dangerous weapon” for a second-

degree-assault conviction); Minn. Stat. § 609.713, subd. 1 (2012) (requiring findings that

a defendant “threaten[ed] . . . to commit any crime of violence with purpose to terrorize

another” for a terroristic-threats conviction); Minn. Stat. § 609.595, subd. 1(1) (2012)

(requiring findings that a defendant “intentionally cause[d] damage to physical property

of another without the latter’s consent” for a criminal-damage-to-property conviction).

1
    A second count of criminal damage to property was dismissed in a directed verdict.

                                              4
At trial, however, the state presented two distinct criminal acts to support appellant’s

conviction for each offense: (1) the act of hitting the car with the baseball bat, and (2) the

act of hitting the car with the Jeep.

       In his closing argument, the prosecutor told the jury that it could find appellant

guilty based on either act, specifically stating that both the bat and the Jeep could be

considered dangerous weapons and that the use of the bat and the act of hitting the Buick

with the Jeep constituted terroristic threats. Further, in instructing the jury, the district

court provided the jury with the recommended instructions for each offense and generally

cautioned the jury that it should ensure that its verdict be unanimous. But the district

court did not explain that the jury needed to agree on which act satisfied the overt-act

element of each offense.       Like Stempf, the failure to give the specific unanimity

instruction allowed the jury to find appellant guilty of the charged offenses while

disagreeing as to whether the act involved the bat or the Jeep.

       We disagree with the state’s contention that this case is factually distinct from

Stempf because it involves “an ongoing, less-than-two-hour incident, and just one defense

to all the allegations.” Contrary to the state’s assertion, the acts were separated in time

and place. Appellant allegedly first struck the Buick with a bat at L.F.’s residence. L.F.

drove the Buick away and called 911 while appellant pursued the Buick in his vehicle.

L.F. then flagged down a police officer to report what had happened. After speaking with

police, L.F. drove the Buick to L.B.’s residence, where Houle’s Jeep struck the Buick.

Appellant was the Jeep’s passenger. Appellant then got out of the Jeep and began hitting

the Buick with his fists. L.F. was again able to drive away in the Buick and contact


                                              5
police. The bat and Jeep incidents constitute “separate and distinct culpable acts, either

one of which could support a conviction” on each offense. Stempf, 627 N.W.2d at 359.

Accordingly, we conclude that the failure to provide the jury with a specific unanimity

instruction violated appellant’s right to a unanimous verdict, and that the district court

erred.     See id. at 354 (“Where jury instructions allow for possible significant

disagreement among jurors as to what acts the defendant committed, the instructions

violate the defendant’s right to a unanimous verdict.”).

2. Plain Error

         Because we conclude that the district court erred, we must next consider whether

the district court’s error was plain. An error is plain if it “contravenes case law, a rule, or

a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). As we have

stated, the failure to provide the specific unanimity instruction violated the precedential

standard established in Stempf.2 Accordingly, the error was plain.

3. Substantial Rights

         We next determine whether the error affected appellant’s substantial rights. “An

error affects substantial rights if it is prejudicial and affects the outcome of the case.”

State v. Schlienz, 774 N.W.2d 361, 366 (Minn. 2009) (quotation omitted). “An error in

instructing the jury is prejudicial if there is a reasonable likelihood that giving the

instruction in question had a significant effect on the jury’s verdict.” State v. Watkins,

2
  The state argues that the law in this area is unclear, relying on several unpublished
decisions of this court. “Unpublished opinions of the [c]ourt of [a]ppeals are not
precedential.” Minn. Stat. § 480A.08, subd. 3(c) (2014). Unpublished opinions are of
persuasive value “[a]t best,” and we are not persuaded by the state’s reliance on these
opinions. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).

                                              6
840 N.W.2d 21, 28 (Minn. 2013) (quotation omitted). If “we conclude that the erroneous

omission of the instruction might have prompted the jury, which is presumed to be

reasonable, to reach a harsher verdict than it might have otherwise reached, [the]

defendant must be awarded a new trial.” State v. Shoop, 441 N.W.2d 475, 481 (Minn.

1989).

         Here, appellant’s co-defendant, Houle, was charged with the same offenses as

appellant. Houle, however, was present only during the Jeep incident and was ultimately

acquitted of all charges against him. Houle may have been acquitted because the jury did

not unanimously agree that the Jeep act satisfied the overt act element of each offense.

By not providing the jury with a specific unanimity instruction, there is a “reasonable

likelihood” that appellant’s convictions were the result of a split jury where some jurors

believed the bat act satisfied the overt act element of each offense, while other jurors

believed the Jeep act satisfied the overt act element. Consequently, the jury likely

reached a harsher verdict than it otherwise would have reached with the proper

instruction.   We conclude, therefore, that the erroneous omission of the instruction

affected appellant’s substantial rights.3




3
  We recognize that the case of State v. Wenthe, ___ N.W.2d ___ (Minn. June 24, 2015)
was recently decided by the Minnesota Supreme Court. Our case, however, is
distinguishable from Wenthe. While both cases involve an issue of jury unanimity, the
unique facts and evidentiary showing in Wenthe are not similar to those presented in the
record before us. Here, we cannot say with certainty which act the jury relied upon in
finding appellant guilty of each offense.

                                            7
4. Fairness and integrity of the judicial proceedings

       Because we conclude that the three prongs of the plain-error test are met, “we then

decide whether we must address the error to ensure fairness and the integrity of the

judicial proceedings.” Milton, 821 N.W.2d at 805 (quotation omitted). The state argues

that appellant “received an extremely vigorous defense, he does not claim there were any

trial errors, the jurors’ careful evaluation of the evidence is shown by the split verdicts,

and ultimately appellant’s conspiracy defense was extremely implausible in light of all of

the evidence presented by the [s]tate.” While the state fails to cite any caselaw to support

why we need not address the error, it appears that its argument is most akin to that in

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). In Griller, the supreme court

considered whether an improper jury instruction regarding an affirmative defense entitled

the defendant to a new trial. Id. The supreme court considered the fact that the defendant

“was afforded a complete adversarial trial that lasted eight days,” that the defendant

“thoroughly presented his self-defense theory of the case,” and that “[t]he jury considered

and rejected [the defendant’s] far-fetched version of events” in concluding that

preservation of the judicial proceedings did not require reversal. Id. at 742. The supreme

court determined that granting the defendant a new trial would have been “an exercise in

futility and a waste of judicial resources.” Id.

       The same, however, cannot be said in appellant’s case. Allowing appellant to

stand convicted of the charged offenses when his right to a unanimous verdict was

violated adversely affects the fairness and integrity of judicial proceedings. Accordingly,

we reverse and remand for a new trial.


                                              8
       Because we conclude that appellant’s right to a unanimous verdict was violated

and he is entitled to a new trial, we decline to address appellant’s remaining arguments.

       Reversed and remanded.




                                             9
