Specific-Unanimity Required When One Count Is Proven by Multiple Distinct Acts

Case: State of Minnesota v. Tracey Dee Keyes (Minn. July 15, 2026)  |  Court: Supreme Court of Minnesota  |  Disposition: Reversed and remanded (new trial on first-degree criminal sexual conduct counts)

1. Introduction

State of Minnesota v. Tracey Dee Keyes arises from a domestic-violence incident in which the complainant, S.B., testified that Keyes committed two separate acts of nonconsensual fellatio—one in a bedroom and a second in a living room—during a violent episode lasting roughly 45 minutes. The State nevertheless charged (relevantly) a single count of first-degree criminal sexual conduct and tried the case on a theory that the episode as a whole satisfied the offense.

The principal legal issue was whether the district court had to give a specific-unanimity instruction—i.e., an instruction requiring jurors to unanimously agree on which distinct act constituted the charged crime—when one count is supported by evidence of more than one act, each sufficient on its own. A secondary issue concerned appellate review: whether Keyes forfeited the instruction claim.

2. Summary of the Opinion

The Minnesota Supreme Court held:

• Keyes did not forfeit the specific-unanimity issue; therefore the Court reviewed the denial of the requested instruction for abuse of discretion (citing State v. Schoenrock).
• When the State charges one count but presents evidence of more than one distinct act, each of which alone could satisfy the elements, the defendant is entitled to a specific-unanimity instruction.
• Courts must determine whether such an instruction is required by (1) identifying the offense’s elements from the statute and (2) determining whether the State alleged more than one distinct act that could prove those elements.
• The district court abused its discretion by denying the instruction because the State alleged two distinct penetrations (bedroom and living room), either sufficient to prove the single first-degree criminal sexual conduct count.
• The error was not harmless beyond a reasonable doubt because it was reasonably likely jurors could have split on which penetration occurred (relying on the prejudice framing from State v. Wenthe).

The Court reversed Keyes’s first-degree criminal sexual conduct conviction and remanded for a new trial on those offenses.

3. Analysis

3.1. Precedents Cited

A. The constitutional foundation of unanimity

• Ramos v. Louisiana and State v. Bey anchor the premise that unanimity is required in state felony cases under the Sixth Amendment. The Court uses these cases to frame unanimity as “fundamental” and fully applicable in Minnesota.
• Am. Pub. Co. v. Fisher is invoked for the historical point that common-law jury trial included unanimity as an “essential feature.”
• In re Winship provides the due-process backdrop—proof beyond a reasonable doubt of every element—linking unanimity to element-by-element proof.

B. “Means” versus “elements”: the federal template

• Schad v. Arizona (plurality) stands for the proposition that jurors need not agree on “preliminary factual issues” or alternative means of committing a single offense, while acknowledging due-process limits on over-generic offense definitions. The Court uses Schad primarily to explain the means/elements distinction and its due-process rationale.
• Richardson v. United States is treated as the leading “elements require unanimity” case: if a statute makes certain underlying violations elements (not mere means), jurors must unanimously agree on those violations. The Court emphasizes Richardson’s statutory-interpretation method: start with the statute to identify which facts are elements.
• Edwards v. Vannoy appears to clarify that older statements in Schad about no federal right to state unanimity are no longer good law after Ramos.

C. Minnesota’s uneven path: from “plain error” cases to conflicting Court of Appeals tests

• State v. Stempf (Minn. App. 2001) is the Court’s pivotal Minnesota touchstone for the specific-unanimity problem in its classic form: one count, two distinct acts (meth in workplace vs pickup truck). The opinion treats Stempf as the clearest Minnesota analogue to the rule announced here.
• State v. Crowsbreast, State v. Ihle, and State v. Pendleton are earlier Minnesota Supreme Court cases rejecting specific-unanimity claims in the plain error posture, often referencing Schad. The Court characterizes these as limited and not endorsing a broad “single behavioral incident” test.
• State v. Infante (Minn. App. 2011) introduced the “single behavioral incident” approach, borrowed from sentencing concepts tied to Minn. Stat. § 609.035. The Court rejects this framework as (1) not grounded in Supreme Court precedent, (2) poorly aligned with means/elements analysis, and (3) inconsistently applied, citing subsequent Court of Appeals examples including State v. LeClair, State v. Rulford, State v. Kuchenbecker, State v. Ards, and State v. Covington.
• State v. Lagred and State v. Epps (Minn. App. 2019; 2020) supply a competing, statute-based approach. The Court embraces this approach as more faithful to Schad/Richardson.
• State v. Wenthe provides the Court’s prejudice lens: reversal is required when it is “reasonably likely” jurors split on which act satisfied the element(s).

D. Preservation/forfeiture and standards of review

• The Court relies on State v. Thompson (purpose of forfeiture), State v. Zinski (plain error when no request), State v. Kelley, State v. Jones (what makes an error “plain”), and Pulczinski v. State (fourth-prong discretion).
• It nonetheless finds preservation on this record, and thus reviews denial of the requested instruction for abuse of discretion under State v. Schoenrock, while treating the unanimity right as a constitutional backdrop (citing State v. Bey for de novo constitutional review concepts).

E. Harmless error and reversal

• The Court applies “harmless beyond a reasonable doubt” review for constitutional instructional errors (citing State v. Segura and State v. Kuhnau). Kuhnau is also used for the proposition that inadequate instructions can constitute an abuse of discretion and warrant a new trial.

F. Comparative citations: other jurisdictions and federal circuits

To situate its adopted framework, the Court cites a range of federal appellate decisions that treat specific unanimity as a statutory-interpretation question (among other considerations), including United States v. Morris, United States v. Brown, United States v. Chaoqun, United States v. Crump, United States v. Gonzalez, United States v. Barai, United States v. Kearn, United States v. Nicolaou, United States v. Correa-Ventura, and United States v. Verrecchia. It also notes contrasting “course of conduct” reasoning in sexual assault contexts in Gray v. United States and State v. Lee, while declining to adopt a single-behavioral-incident rule.

Finally, the dissent’s alternative “duplicity” framing draws on State v. Douglas C., which the majority addresses in a footnote to explain why it prefers an instruction-forward, pre-submission determination rather than post hoc prejudice review.

3.2. Legal Reasoning

A. The new Minnesota rule (specific unanimity as a right when one count is supported by multiple distinct acts)

The Court announces an explicit entitlement: if the State chooses to charge a single count while proving it with multiple distinct acts, each independently satisfying the elements, the defendant is entitled (upon request) to an instruction requiring jury unanimity on which act constitutes the offense.

Importantly, the Court frames this as a trial-management rule that does not restrict prosecutorial charging discretion; it instead allocates the consequence of charging one count: either (a) charge multiple counts, or (b) accept that the jury must be specifically unanimous as to the act.

B. The two-step test Minnesota courts must now apply

1. Statute first: identify the offense’s elements from the statute, and separate “means” from “elements” using statutory language (as in State v. Epps).
2. Allegations second: determine whether the State, as tried, alleged more than one distinct act, each of which alone could satisfy those elements (as in State v. Stempf).

The Court expressly rejects the “single behavioral incident” test as dispositive because it does not track the means/elements distinction, is difficult to apply consistently, and is not grounded in Schad/Richardson.

C. Application to Keyes

Under Minn. Stat. § 609.341, subd. 12 (2020), “sexual penetration” includes fellatio committed without consent. The State’s proof presented two acts of fellatio—bedroom and living room— each sufficient on its own to establish penetration without consent. Because only one count was charged, the jury needed to be told it must unanimously agree on which act proved the offense.

D. Harmlessness

The Court finds non-harmlessness because the complainant’s accounts evolved: the “second” penetration (bedroom) emerged at trial, while earlier statements emphasized a single event. That evidentiary posture makes juror splitting plausible (some accepting only the living-room incident; others accepting only the bedroom incident), so the State could not show harmlessness beyond a reasonable doubt.

3.3. Impact

A. Trial practice and charging decisions

• Prosecutors: must anticipate unanimity problems when presenting multiple distinct acts to prove one count; they may respond by charging separate counts or ensuring the jury is instructed with specific unanimity.
• Defense counsel: gains a clearer, statute-grounded basis to request a specific-unanimity instruction and to frame appellate issues under preserved-error review.
• District courts: must perform the statute-first analysis and then map it onto the State’s proof; the Court advises “err on the side of caution” in close cases by giving the instruction.

B. Appellate consequences

The decision is likely to increase reversals where the record supports plausible juror division on which act occurred, particularly in cases where complainant narratives contain evolving detail. At the same time, by providing a clear framework, the opinion aims to reduce post-trial litigation by encouraging trial courts to resolve unanimity questions before submission.

C. Substantive area most affected

The rule will be most consequential in offenses frequently tried as “episodes” with multiple acts—especially criminal sexual conduct and some assaultive conduct—where the State may prefer one count but present multiple act evidence to strengthen proof. Keyes now requires either count-splitting or act-specific unanimity.

4. Complex Concepts Simplified

• General unanimity vs. specific unanimity: General unanimity means all jurors agree “guilty” or “not guilty.” Specific unanimity means all jurors agree on the same underlying act that makes the defendant guilty when multiple acts are in play.
• “Means” vs. “elements” (from Schad v. Arizona and Richardson v. United States): An element is a fact the State must prove beyond a reasonable doubt and jurors must unanimously find. A means is one of several ways to satisfy an element; jurors can disagree on means so long as they unanimously find the element.
• Forfeiture and plain error (citing State v. Zinski): If a defendant does not properly raise an issue at trial, appellate courts usually review only for “plain error,” a harder standard. Here, the Court found the issue preserved and used abuse-of-discretion review.
• Harmless beyond a reasonable doubt (citing State v. Segura, State v. Kuhnau): If an instructional error implicates constitutional rights, the conviction stands only if the State can show the error did not contribute to the verdict beyond a reasonable doubt.

5. Conclusion

State of Minnesota v. Tracey Dee Keyes establishes a clear Minnesota rule: when one charged count is supported by evidence of multiple distinct acts, each independently satisfying the offense’s elements, the defendant is entitled to a specific-unanimity instruction requiring jurors to agree on which act proves guilt. The Court rejects the Court of Appeals’ “single behavioral incident” approach and replaces it with a statute-first, elements-centered framework tied to Schad v. Arizona and Richardson v. United States. The decision’s practical effect is to force earlier, clearer trial-level sorting of “one count/many acts” prosecutions—either through charging choices or through act-specific unanimity—thereby strengthening the structural guarantee that guilt is found unanimously on the same criminal act.