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This opinion will be unpublished and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
A16-1216

State of Minnesota,
Respondent,

vs.

Kevin Deshon Ellis,
Appellant.

Filed July 31, 2017
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-14-3171

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a conviction of first-degree criminal sexual conduct, appellant
argues that the district court err ed by (1) excluding evidence of the victim’s past sexual

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abuse, which appellant argues was relevant to establishing prior sources of her sexual
knowledge; and (2) failing to specifically instruct the jury that it must unanimously agree
that the state proved beyond a reasonable doubt one incident of sexual conduct. We affirm.
FACTS
The nine-year-old victim, A.B., initially told a friend that appellant Kevin Deshon
Ellis, who was A.B.’s mother’s boyfriend, had been sexually assaulting her. Later, A.B.
disclosed the sexual abuse to her school’s vice principal and described some of the sexual
acts Ellis had done. The vice principal called the police, who brought A.B. to a temporary
shelter.
A CornerHouse forensic-services director conducted a forensic interview of A.B. A
video recording of the interview was played for the jury. During the interview, A.B. gave
detailed descriptions of several sexual assaults. A.B.’s respon ses were age appropriate,
and her body language changed from engaged during the initial rapport-building questions
to less engaged when discussing the sexual assaults. When A.B. was later examined by a
nurse, she described the same sexual acts that she ha d described to the vice principal and
the forensic-services director.
Ellis was charged with one count of first -degree criminal sexual conduct , in
violation of Minn. Stat. § 609.342, subd. 1(a) (2012). The case was tried to a jury, which
found Ellis guilty. This appeal followed sentencing.

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D E C I S I O N
I.
“[Appellate courts] review a district court’ s evidentiary rulings for abuse of
discretion.” State v. Graham, 764 N.W.2d 340, 351 (Minn. 2009). When a district court
erroneously excludes evidence in violation of the defendant’ s constitutional rights, the
conviction must be reversed if “there is a reasonable possibility that the verdict might have
been different if the evidence had been admitted.” Id. (quotation omitted).
Ellis sought to admit evidence that A.B. was sexually abused by her father, who
pleaded guilty to sexually assaulting her three to four years before she made the allegations
against Ellis. Ellis argues that, because the evidence provided an alternative basis for
A.B.’s sexual knowledge, it was relevant to his defense that A.B. fabricated the allegations
against him.
Except in specified circumstances that are not present in this case, the rape -shield
law prohibits admission of ev idence of a victim’s previous sexual conduct. Minn. Stat.
§ 609.347, subd. 3 (2012); see also Minn. R. Evid. 412. But, “[d]espite the prohibition of
a rape -shield law or rule, a [district] court has discretion to admit evidence tending to
establish a sou rce of knowledge of or familiarity with sexual matters in circumstances
where the jury otherwise would likely infer that the defendant was the source of the
knowledge.” State v. Benedict , 397 N.W.2d 337, 341 (Minn. 1986) . The evidence is
admissible “in all cases in which admission is constitutionally required by the defendant’s
right to due process, his right to confront his accusers, or his right to offer evidence in his
own defense.” Id. “In making this determination, the court must balance the state’s interest

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in guarding the victim’s privacy and protecting her from harassment against the accused’s
constitutional right of confrontation.” Jackson v. State, 447 N.W.2d 430, 435 (Minn. App.
1999). Also, the court must “balance the probative value of the evidence against its
potential for unfair prejudice.” Id.
The district court addressed whether admission was constitutionally required and
balanced the probative value against the potential for unfair prejudice. The district court
did not err in finding that the evidence lacked probative value because, although there were
some similarities between Ellis’s alleged acts and the father’s acts, there were also
significant differences. Because the evidence lacked probative value, its admission was
not constitutionally required, and the district court did not abuse its discretion in excluding
it.
But even if excluding the evidence was error, Ellis is entitled to a new trial only if
the error was prejudicial. See State v. Kroshus, 447 N.W.2d 203, 205 (Minn. App. 1989)
(concluding that error in excluding evidence of victim’s earlier sexual-abuse allegation was
not prejudicial when the victim spontaneously reported sexual abuse, provided repeated
consistent accounts of abuse by the defendant, provided a higher level of detail in
allegations against the defendant compared to earlier allegations, and medical evidence
supported allegations against the defendant), review denied (Minn. Dec. 20, 1989). Here,
as in Kroshus, A.B. spontaneously reported the sexual abuse to her friend; A.B.’s trial
testimony was consistent with her statements to the friend, the vice principal, the
CornerHouse forensic-services director, and the nurse; and, during the forensic-services

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director’s interview, A.B. provided detailed desc riptions of sexual acts, including sensory
details and details about how and where Ellis committed the acts.
In addition to the factors present in Kroshus, A.B.’s credibility was bolstered by her
demeanor during the interview with the forensic -services d irector and when telling the
friend about the sexual abuse and by evidence about an incident that occurred when the
friend spent the night at A.B.’s house. See State v. Mosby , 450 N.W.2d 629, 635 (Minn.
App. 1990) (sta ting that sexual -assault victim’ s dem eanor after assault occurred
corroborated her testimony), review denied (Minn. Mar. 16, 1990). Also, Ellis’s credibility
was undercut because his version of events changed over time. Initially, he told an
investigator that A.B. was sexually provocative and aggressive. At trial, Ellis testified that
he was the disciplinarian in the household and that A.B. fabricated the allegations about
him because she did not want him around.
Because there is not a reasonable possibility that the verdict might have been
different if the prior-abuse evidence had been admitted, Ellis is not entitled to a new trial.
II.
“The jury’s verdict must be unanimous in all cases.” Minn. R. Crim. P. 26.01, subd.
1(5). “[T]he jury must unanimously agree on which acts the defendant committed if each
act constitutes an element of the crime.” State v. Stempf , 627 N.W.2d 352, 355 (Minn.
App. 2001). “But a jury verdict need not agree unanimously with respect to the alternative
means or ways in which a crime can be committed.” State v. Rucker , 752 N.W.2d 538,
548 (Minn. App. 2008), review denied (Minn. Sept. 23, 2008).

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At trial, Ellis did not request a unanimity instr uction or object to the jury
instructions. “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.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Despite appellant’s failure
to object, this court may review the jury instructions for plain error. State v. Griller, 583
N.W.2d 736, 740 (Minn. 1998). Under the plain -error test, this court examines the jury
instructions to see if there was (1) error, (2) that was plain, and (3) that affected appellant’s
substantial rights. State v. Gunderson, 812 N.W.2d 156, 159 (Minn. App. 2012) (reviewing
unobjected-to instructions for plain error).
Ellis argues that the district court erred in failing to instruct the jurors that they had
to reach a unanimous verdict because the state “presented evidence of multiple distinct acts
that allegedly took place on different dates, spanning a six-month time period.” Ellis relies
on Stempf, in which the state charged the defendant with one count of possession of a
controlled substance but introduced evidence of two “separate and distinct” acts of
possession, possession of methamphetamine at his office and possession of
methamphetamine in his truck. 627 N.W.2d at 354, 358-59. The defendant had separate
defenses for each act. Id. at 354. This court concluded that because the state failed to
identify the act of possession upon which it relied, some jurors could have convicted the
defendant for possessio n of the methamphetamine in his office, and others could have
convicted him based on possession of the methamphetamine in his truck. Id. at 359.
Because the jury instructions did not preclude this possibility, this court held that the
defendant was denied his right to a unanimous jury verdict. Id. The Stempf court declined

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to address the issue of whether a different result would have been warranted if a continuing
course of conduct had been alleged. Id. at 358-59.
In Rucker, the defendant was charged with first-degree criminal sexual conduct and
second-degree criminal sexual conduct involving two victims over a two-year period. 752
N.W.2d at 544. The court concluded that a unanimity instruction was not required. After
noting that “[g]enerally, specific dates need not be proved in cases charging criminal sexual
conduct committed over an extended period of time,” the court explained:
[A]ppellant was convicted of one count of first-degree criminal
sexual conduct and one count of second-degree criminal sexual
conduct as to each victim whom he was alleged to have abused
over a two-year period, and the jury was instructed only to find
whether the acts occurred between August 2003 and August
2005. Unlike Stempf, the prosecution here did not emphasize
certain incidents, distinguish as to the proof of some incidents
compared to others, or encourage the jury to find certain
incidents were more likely to have occurred than other
incidents, and appellant did not present separate defens es for
each incident of alleged sexual abuse; rather, he simply
maintained throughout his trial that he never had sexual contact
with either child-victim. The victims referred to a few specific
dates in their testimony on which incidents of abuse occurred ,
but with respect t o their testimony and the state’ s case as a
whole, these recollections served as examples of appellant ’s
conduct and not distinct allegations of sexual abuse. Based on
the particular facts of this case, we conclude that the district
court did not err in not instructing the jury that it must
unanimously agree on which specific incidents formed the
basis of appellant’s convictions.
Id. at 547-48; see also State v. Day, 501 N.W.2d 649, 653 (Minn. App. 1993) (holding that
defendant’s right t o a unanimous verdict was not violated when the jury instructions
allowed the jury to convict for first -degree criminal sexual conduct if the victim either
suffered personal injury or submitted due to a threat of bodily harm); State v. Hart , 477

8
N.W.2d 732, 737 (Minn. App. 1991) (holding that the “either/or” instruction allowing the
jury to consider personal injury or submission to a threat of bodily harm under a charge of
first-degree criminal sexual conduct did not violate appellant’s right to a unanimous jury
verdict), review denied (Minn. Jan. 16, 1992).
Although the complaint alleged, and this case was tried under, the theory that Ellis
committed multiple acts of sexual abuse over a six-month period, Ellis was not charged
under the statutory provision specifying multiple acts over an extended period of time. See
Minn. Stat. § 609.342, subd. 1(h)(iii) (2012) (element of offense is multiple acts committed
over extended period of time). Similarly, Rucker was accused of committing sexual abuse
over a two -year period, and the opinion does not indicate that he was charged under a
statutory provision that required proof of multiple acts committed over an extended period
of time.1 Consequently, it is n ot clear under Rucker that the unanimity instruction was
required because the state presented evidence of multiple distinct acts that allegedly took
place on different dates.
An error is plain if it “contravenes case law, a rule, or a standard of conduct.” State
v. Hayes, 831 N.W.2d 546, 555 (Minn. App. 2013). Because the law on when a unanimity
instruction is required is unsettled, any error in not giving a unanimity instruction was not
plain. See Rucker, 752 N.W.2d at 548; see also State v. Ayala -Leyva, 848 N.W.2d 546,

1 In addressing whether the defendant was in a position of authority over the victim, Rucker
refers to Minn. Stat. § 609.342, subd. 1(b) , which does not require proof of multiple acts
over an extended period of time. 752 N.W.2d at 545 n.1.

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555 (Minn. App. 2014) ( ruling that d istrict court’s chosen jury instruction was not plain
error when state of the law was “cloudy” or “unsettled”).
Even if the district court erred in not giving a unanimity instruction, Ellis is not
entitled to a new trial because he has not satisfied the plain-error standard.
Affirmed.