Justices reverse sexual assault conviction over jury instruction

In Brief

• Minnesota Supreme Court reversed a criminal sexual conduct conviction and ordered a new trial.
• The court ruled the jury should have received a specific-unanimity instruction because prosecutors presented evidence of two distinct alleged acts of sexual penetration.
• The justices held that when multiple distinct acts could independently support a single charge, jurors must unanimously agree on the same act.
• A dissent warned the ruling could make sexual assault prosecutions more difficult and require victims to relive trauma through additional trials.

A woman was allegedly sexually assaulted in her bedroom and living room, but the jury did not receive a specific-unanimity instruction. Finding that two alleged acts of forced sex were not just a part of one continuous incident, the Minnesota Supreme Court determined that the jury’s receipt of a general-unanimity instruction was reversible error.

S.B. and Tracey Dee Keyes were previously in a relationship and had lived together until S.B. asked Keyes to leave following a domestic dispute. In 2022, S.B. allowed Keyes into her home to collect his belongings after he appeared at her door. S.B. testified that Keyes instead physically attacked her and forced her to engage in oral sex. Keyes allegedly sexually assaulted her in the living room. He also allegedly sexually assaulted her in the bedroom.

Eventually, S.B.’s nieces and nephews interrupted, after which S.B. took the children out of the house and reported what happened to police. Officers arrested Keyes, and S.B. was taken to a hospital. A sexual assault examination was conducted, and DNA testing later identified Keyes’s DNA on an oral swab collected.

The State charged Keyes with first-degree criminal sexual conduct, third-degree assault, threats of violence, and false imprisonment. The case went to trial, but a mistrial was declared because the jury was shown a video containing material the parties had agreed would be redacted.

Near the end of the second trial, the attorneys discussed with the district court judge whether the jury would be given an instruction on specific unanimity. This instruction requires the jury to unanimously agree on one specific act supporting a conviction when multiple acts could satisfy a single charge. The district court gave the jury a general-unanimity instruction but no specific-unanimity instruction, and both parties approved the final instructions.

Keyes was found guilty on all counts. He was sentenced to 360 months in prison.

On appeal to the Minnesota Court of Appeals, Keyes claimed that the district court erred in denying his request for a specific-unanimity instruction. Specifically, Keyes claimed that the state gave evidence of two instances of alleged penetration. The court affirmed the conviction, finding that the district court did not err because both acts of penetration were part of a single incident.

Before the Minnesota Supreme Court was the question of whether a defendant is entitled to a specific-unanimity jury instruction when one count of criminal conduct is charged, but evidence of more than one distinct act is presented, each of which could prove elements of the charged offense.

Specifically, Keyes argued that the prosecution raised two distinct acts of nonconsensual sex: one in the bedroom and one in the living room. He argued that each of these on its own could prove elements of first-degree criminal sexual conduct.

The Supreme Court addressed how a court should determine when a specific-unanimity instruction is required. It determined that courts must interpret the statute to identify the offense’s elements and distinguish them from alternative means of committing those elements. Additionally, courts have to determine whether the State proved the charge through a single act or multiple distinct acts, each of which could independently satisfy the offense. If the State presents multiple distinct acts but charges only one count, the jury must unanimously agree on the same act, requiring a specific-unanimity instruction.

Applying this framework, the court found that a specific unanimity instruction was required.

“Although the State correctly points out that the two alleged acts occurred during a single violent episode, the relevant question for determining whether specific unanimity was required is whether the State’s evidence alleged more than one distinct act of nonconsensual sexual penetration,” wrote Justice Theodora Gaïtas. “There is no dispute that the State’s evidence alleged two distinct acts of nonconsensual sexual penetration, either of which on its own could have proved the elements of first-degree criminal sexual conduct.”

The court reversed and remanded for a new trial. It found that it could not conclude beyond a reasonable doubt that not providing this instruction did not impact the verdicts.

In a 38-page dissent, joined by Justices Anne McKeig and Sarah Hennesy, Justice Gordon Moore argued that the conviction should not be overturned because there was no real risk that jurors disagreed about whether the crime occurred, only about minor details, such as where the forced fellation occurred in the home.

“Crucially, even if six jurors thought forced penetration occurred in the bedroom but not the living room and the other six thought forced penetration occurred in the living room but not the bedroom, all twelve jurors would have unanimously agreed that Keyes committed at least one offense during this relatively brief window beyond a reasonable doubt,” Moore stated. “Yet the majority reverses Keyes’s conviction because it is theoretically possible that at least one juror could not say for sure, based on S.B.’s testimony, when in that narrow timeframe and where in the house that occurred. That result is perplexing, both logically and doctrinally.”

Additionally, he maintained that the majority’s new rule makes it harder to prosecute sexual assault cases and could force victims to relive their trauma in new trials.

“Today’s decision allows Keyes—who never objected to the jury instruction he now claims was erroneous—to go double-or-nothing, while forcing S.B.—who the jury unanimously agreed Keyes sexually assaulted—to once again re-live the trauma of her assault by testifying yet a third time,” Moore wrote. “In future cases, this decision allows, and may even compel, nonsensical charging decisions by the State.”

Moore also raised concerns about trauma and memory. “And perhaps most importantly, it disregards the scientifically demonstrated effects of trauma on memory, with troubling implications for criminal sexual conduct cases relying primarily on the victim’s testimony,” Moore wrote.