State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0811

State of Minnesota,
Respondent,

vs.

Benjamin Charles Tabaka,
Appellant

Filed April 3, 2017
Affirmed
Stauber, Judge

Hennepin County District Court
File No. 27-CR-14-34778

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

Michael O. Freeman, Hennepin County Attorn ey, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

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

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
On appeal from his conviction of first-de gree criminal sexual conduct, appellant
argues that the district court erred by denying his request for a unanimous-verdict jury
instruction. We affirm.
FACTS
Appellant Benjamin Charles Tabaka was charged with first-degree criminal sexual
conduct under Minn. Stat. § 609.342, subd. 1(e)(i), (2014). At trial, N.O. testified that on
the evening of Thanksgiving 2014, she and appellant engaged in consensual oral and
vaginal sex. N.O. testified that while they were having sex, appellant asked her if she had
“ever been fisted.” N.O. replied, “no, that’s not something that sounds very great, not
something that I would enjoy and I’m not like that.” But according to N.O., the “next
thing [she knew, her] body was jerking violently forward” and she felt something
“painful” and “not at all enjoyable.” N.O. testified that she told appellant “ow, stop, ow
that hurts, stop, [appellant], please stop,” but appellant continued to penetrate N.O. with
his hand for what “seemed like forever.”
N.O. also testified that when appellant stopped fisting her, he “wrapped his arm
round [her] neck” in a “choke hold” and resumed vaginal intercourse. N.O. stated that
while this was happening, she “couldn’t breathe,” and that the intercourse “hurt” and
“stung” after being fisted. After appellant released her from the choke hold, N.O. laid on
her side on the bed, and appellant moved in front of her, placed his hand on the wall, and
“shoved his penis down [her] throat.” N.O. stated that she “couldn’t breathe” and “kept
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choking,” and that she tried “to pull her head back as far as [she] could,” but was unable
to move her head because it was up against the wall. N.O. further testified that when
appellant was done, he took a shower, “thanked [her] for doing something for him that
his wife could never do,” and then she took him home.
The next day, N.O. told her ex-boyfri end about the incident, who then called
police. N.O. was taken to the hospital where a sexual-assault examination was
conducted. The examining nurse testified that N.O. sustained injuries to her genitals that
were consistent with “forcible fisting” and that bled when touched. And, a crime-scene
investigator from the Hennepin County Sheriff’s Office testified that a visible spot on the
wall in N.O.’s apartment near where appellant allegedly placed his hand when he
penetrated N.O.’s mouth with his penis tested positive for the presence of blood.
Appellant testified that after arriving at N.O.’s apartment, they went to her
bedroom where they had consensual oral and vaginal sex. But according to appellant,
they eventually went into the kitchen to get something to drink. Appellant testified that
when they were in the kitchen, he “started fingering her again” and eventually inserted
four fingers into her vagina. Appellant testified that “[a]fter a little bit” she said that was
“uncomfortable,” so he stopped and apologized. Appellant further testified that he never
put N.O. in a choke hold or forced his penis into her mouth.
After the jury was instructed and escorted from the courtroom to begin
deliberations, counsel for appellant noted on the record that it was “discussed in
chambers” that he “wanted to have unanimous acts spelled out in the jury instructions.”
The district court acknowledged the discussion and its decision that a “unanimous verdict
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instruction was not required.” The jury subsequently found appellant guilty of the
charged offense and appellant was sentenced to 156 months in prison. This appeal
followed.
D E C I S I O N
I. Standard of review
Appellant challenges the district court’s decision not to give a unanimity jury
instruction. Generally, this court reviews a district court’s choice of jury instructions for
abuse of discretion. State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005). An erroneous
omission of a requested instruction only results in appellate relief if prejudice is
demonstrated on appeal. Id. But a failure to propose specific jury instructions or object
to instructions generally constitutes a forfeiture of that issue on appeal. State v. Cross,
577 N.W.2d 721, 726 (Minn. 1998). When a specific instruction has not been requested,
we may only review the instructions for plain error that affects substantial rights. State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also State v. Gunderson, 812 N.W.2d
156, 159 (Minn. App. 2012) (reviewing unobjected-to jury instructions for plain error).
At the outset, the parties disagree on th e proper standard of review; the state
argues that the issue should be reviewed for plain error because appellant did not request
the instruction. Conversely, appellant argues that the harmless-error standard applies
because he “requested an instruction during the chambers instruction conference, made a
record of that request, and even stated, ‘I object.’”
Based on the record before us, we conclude that the unanimity instruction was
never requested. The record indicates that a discussion was held in chambers concerning
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the unanimity instruction, but that defense counsel did not request the instruction because
the research conducted by defense counsel, the prosecutor, and the district court, revealed
that a unanimity instruction was not necessary. In fact, the prosecutor stated on the
record to be “absolutely clear” that “it was never requested that different instructions be
given before or after.” Both the district court and defense counsel responded by
appearing to agree with this statement. And, although defense counsel stated “I object”
to the instructions, the objection was made after the instructions were given to the jury. It
is well settled that “[a] defendant’s failure to propose specific jury instructions or to
object to instructions before they are given to the jury generally constitutes a waiver of
the right to appeal.” Cross, 577 N.W.2d at 726 (emphasis added). Therefore, because
there was never a specific request for the unanimity instruction before the jury was
instructed, the plain error standard of review is applicable.
II. Unanimity instruction
Appellant argues that the district court erred by refusing to give two specific
unanimity instructions; one as to the mode of penetration and another as to force or
coercion. A jury’s verdict must be unanimous in all criminal cases. Minn. R. Crim. P.
26.01, subd. 1(5). The jury must unanimously conclude that each element of an offense
has been proven. State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn. 2007). Although
the jury must agree on the elements, the jury need not agree on the facts underlying those
elements. Id. at 731. If different courses of conduct are offered to prove an element, they
must show “equivalent blameworthiness or culpability.” Id. (quotation omitted).

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A. Mode of penetration
The state charged appellant with one coun t of first-degree criminal sexual conduct
under Minn. Stat. § 609.342, subd. 1(e)(i), alleging that appellant engaged in sexual
penetration with N.O. causing personal injury to N.O. and that appellant used force or
coercion to accomplish the penetration. At trial, the state introduced evidence of three
different forms of nonconsensual penetration: vaginal, oral, and the fisting. But the state
argued that the jury could return a guilty verdict even if they could not agree on the form
of penetration. Rather, the state argued that “[a]s long as all 12 of you agree that some
form of sexual penetration occurred, four of you can think sexual intercourse, four of you
can think fellatio, and four of you can think any other intrusion, however slight. This is
proof beyond a reasonable doubt.”
Appellant argues that because the jury must unanimously agree on which acts the
defendant committed if each act itself constitutes an element of the crime, and because
“[e]ach form of penetration [alleged by the state], if proven, would have satisfied the
sexual penetration element,” the district court erred by not providing his unanimity
instruction. To support his argument, appellant relies on State v. Stempf, 627 N.W.2d 352
(Minn. App. 2001). In that case, the defendant was charged with one count of possession
of drugs, but the state alleged two distinct acts: (1) the defendant possessed drugs found
at his workplace and (2) the defendant possessed drugs found in a truck. Id. at 357. This
court concluded that the defendant was deprived of his right to a unanimous verdict
because the state did not elect which act of possession it relied on for the conviction, and
the jurors may have disagreed on which act of possession constituted the crime. Id. at
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358. This court further concluded that the two alleged acts lacked “unity of time and
place” and were “separate and distinct culpable acts, either one of which could support a
conviction.” Id. at 358-59. This court therefore reversed and remanded because it was
possible that the guilty verdict was not unanimous. Id. at 359.
This case is distinguishable from Stempf for two reasons. First, in Stempf, the
district court refused to give a specific unanimity instruction, even though one was
requested. Id. at 357-58. Here, appellant never actually requested a specific unanimity
instruction. Second, in Stempf, there were two separate acts of possession that occurred
at different times and different places, and the defendant in Stempf offered different
defenses for both, so the jury in Stempf could have reached different conclusions on each
of those acts of possession. Id. at 358; see State v. Dalbec, 789 N.W.2d 508, 512 (Minn.
App. 2010) (discussing Stempf), review denied (Minn. Dec. 22, 2010). In contrast,
appellant’s closing argument demonstrates that he offered a single defense, that the state
failed to prove that N.O. did not consent, and that appellant used force or coercion.
Moreover, in contrast to Stempf, appellant’s acts were not separated by time and place;
the three alleged acts of penetration all occurred in N.O.’s bedroom within a few minutes
of each other. As a result, appellant’s acts were part of a single behavioral incident. See
State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014) (“Offenses are part of a single course
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of conduct1 if the offenses occurred at substantially the same time and place and were
motivated by a single criminal objective.” (footnote added)).
This case is more akin to State v. Infante, in which the defendant was found guilty
of the sole charged offense, second degree assault. 796 N.W.2d 349, 352-53 (Minn. App.
2011). On appeal, the defendant argued that the district court erred by failing to instruct
the jury that they must reach a unanimous decision as to which of his acts constituted the
assault—putting the small gun to the complainant’s head in the bedroom, or
“methodically load[ing]” the .357 on the sofa two or three hours later. Id. at 355. This
court held that a specific unanimity instruction is unnecessary if the two acts that would
support a conviction occurred at the same place, involved the same victim, and took place
over a short period of time. Id. at 357. In other words, if the acts are part of a single
behavioral incident, then a specific unanimity instruction is unnecessary. Id. at 356-57.
In Infante, because the two acts supporting an assault charge occurred at the same cabin,
involved a single victim, and were separated by a span of two to three hours, the court
concluded that they were part of a single behavioral incident. Id. at 352, 357; see also
Dalbec, 789 N.W.2d at 512 (concluding that the district court did not plainly err by not
providing a unanimity instruction where the acts committed by the defendant spanned a
period of time, but all occurred at the same place and involved a single victim).

1 “Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” State v. Mitchell, 881 N.W.2d 558, 563 n.2 (Minn. App.
2016), review denied (Minn. Aug. 23, 2016).
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Here, as in Infante, because appellant’s acts were part of a single behavioral
incident, a unanimity instruction was not required. Moreover, the court in Infante,
distinguished between the elements versus the means. Id. at 357. This court determined
that Stempf was distinguishable because “the two acts in Stempf were elements of the
crime, whereas [the defendant’s] actions in this case were mere means for accomplishing
an element.” Id.
Similarly, the United States Supreme Court has illustrated that acts such as
appellant’s constitute means of committing an element of a crime, rather than two distinct
instances of an element of the crime itself. Richardson v. United States, 526 U.S. 813,
817, 119 S. Ct. 1707, 1710 (1999). As the Court explained:
Where, for example, an element of robbery is force or the threat
of force, some jurors might conclude that the defendant used a
knife to create the threat; others might conclude he used a gun.
But that disagreement—a disagreement about means—would
not matter as long as all 12 jurors unanimously concluded that
the Government had proved the necessary related element,
namely, that the defendant had threatened force.

Id.
In this case, appellant confuses the means of committing the element of
penetration with the element of the crime itself. The jury needed to conclude that non-
consensual penetration occurred. But because appellant’s act was one behavioral
incident, the jury was not required to unanimously agree on the means of accomplishing
the penetration—whether the non-consensual penetration occurred vaginally, orally, or
by fisting. See Pendleton, 725 N.W.2d at 732 (declining to find plain error by the lack of
a unanimity instruction because that the jury could unanimously agree on the element of
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kidnapping without agreeing on the alternative purposes for the kidnapping).
Accordingly, the district court did not plainly err by declining to give a unanimity
instruction with respect to the mode of penetration.
B. Force or coercion
Appellant also contends that the distri ct court erred by not giving a unanimity
instruction with respect to force or coercion. But the same analysis discussed above
applies to this argument. That appellant committed the offense with force or coercion is
an element of the charged offense. See Minn. Stat. § 609.342, subd. 1(e)(i). The jury,
however, need not agree on whether appellant used force or whether he used coercion to
commit the offense. The jury must simply agree unanimously that appellant used either
force or coercion to commit the act. See Pendleton, 725 N.W.2d at 732. Therefore, the
district court did not err by declining to give a unanimity instruction with respect to force
or coercion.
C. Prejudice
Finally, even if the district court erre d by not giving a unanimity instruction,
appellant is unable to establish prejudice. An error affects a defendant’s substantial rights
“if the error was prejudicial and affected the outcome of the case.” Griller, 583 N.W.2d
at 741. “In other words, there must be a reasonable likelihood that the giving of the
instruction in question would have had a significant effect on the verdict of the jury.”
State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015) (quotation omitted). The defendant
bears the “heavy burden” of demonstrating prejudice. Id.
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The record reflects that appellant admitted to engaging in the three forms of
penetration, but his defense was that the conduct was consensual. The jury rejected this
theory by finding him guilty of the charged offense. Moreover, the record reflects that
N.O.’s version of the events were consistent throughout the proceedings, but appellant
was uncertain of some details due to his inability to remember. And, the record reflects
that a photo of N.O.’s injuries was admitted into evidence, which corroborated her
testimony. There is simply no reasonable likelihood that the giving of the desired
unanimity instruction would have had a significant impact on the jury’s verdict.
Therefore, appellant is unable to demonstrate prejudice.
Affirmed.