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This opinion will be unpublished and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
A16-1351

State of Minnesota,
Respondent,

vs.

Austin Thomas Whiteaker,
Appellant.

Filed August 21, 2017
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-15-3775

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 Pu blic Defender, Renée Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and
Klaphake, Judge.
*

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

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Austin Thomas Whiteaker challenges his convictions of first-degree
assault, malicious punishment of a child, and third-degree assault, arguing that (1) the
circumstantial evidence presented at trial was insufficient to prove beyond a reasonable
doubt that appellant was the person who caused the infant great bodily injury and (2) the
district court committed plain error by failing to give a specific instruction on unanimity.
We affirm.
FACTS
In 2014, K.W. met appellant online; the couple communicated online for a period
of about four months before agreeing to meet in person. In June 2014, K.W. traveled to
North Dakota to meet appellant in person fo r the first time and to move appellant to
Minnesota to live with her in her apartment in White Bear Lake.1 Within several weeks of
the couple cohabitating, K.W. and appellant conceived a ch ild, and, on March 31, 2015,
K.W. gave birth to a healthy baby boy at St. John’s Hospital in Maplewood, Minnesota.
After returning home from the hospital, K.W. and appellant provided the “day-to-day,
minute-to-minute care” and did not allow family or friends to “provide any childcare.”
During the first three and a half weeks of th e infant’s life, K.W. acted as the primary
caregiver, while appellant rarely cared for the infant by himself.

1 Appellant and mother lived with mother’s friend, L.R. (roommate).

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On or around April 8, K.W. brought the in fant back to St. John’s for his “well-baby
checkup,” where a pediatrician performed a t horough examination and determined that
“everything was normal.” About a week later, K.W. and appellant returned to St. John’s
for the infant’s second checkup, and his results again were normal.
On April 26, appellant suggested that K. W. and roommate go to lunch without him,
and, around 2:00 p.m., K.W. and roommate drove to McDonalds. But, before leaving the
apartment, K.W. helped appellant tie a cloth baby carrier and changed the infant’s diaper,
before appellant placed the infant in the clot h carrier. When K.W. changed the infant’s
diaper, she noticed that he had a “very light” bruise on his left thigh.
Twenty minutes later, K.W. and roommate returned to the apar tment and as they
approached the apartment doo r, appellant swung open the do or and said “[t]here is
something wrong” with the infant. As K.W. walked in to the apartment, she saw the infant
lying on his back on the floor of the hallway—the infant di d not have a pulse, he was
bleeding from his right nostril, and his skin had started to turn a shade of blue. K.W. called
911 and waited for paramedics to arrive, while roommate, who is employed as a nursing
assistant, performed CPR.
Upon arrival, paramedics performed CP R for several minutes before transporting
the infant to the Children’s Hospital. While the paramedi cs performed CPR, appellant
spoke with one of the police officers and explained that he had left the infant in a Rock ‘n
Play—a cradle that allows an infant to sit at a 30-degree angle—while he cleaned the
apartment. Appellant stated that he left the infant alone while he went to the bathroom and
after he returned, he noticed th e infant struggling to breathe. He told the officer that he

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took the infant out of the cradle and lightly tapped him on the back in an effort to cause the
infant to spit up. He reported that he was concerned that the infant may be choking because
the infant had flu-like symptoms the day before.
At the hospital, K.W. noticed significant br uising and discolored skin on the infant’s
face, legs, and head. K.W. did not recall seei ng a majority of these bruises on the infant
before she left the apartment, but told medi cal personnel that the infant had previously
bruised his head—after he lifte d his head and hit it against the side of the bassinet—and
had a bruise on his thigh from the buckle on his cradle. She also reported that the infant
often scratched his face and repeatedly hit himself in the face with his hand. While at the
hospital, appellant informed police that he tripped over the cradle while K.W. and
roommate were at McDonalds, causing the cradle to tip while the infant was in it. He was
unsure whether the infant “hit the floor” as a result.
The following month, appellant contacte d the investigating police officer on two
separate occasions, and, both times he spoke with the officer, he offered a different
explanation for how the infant sustained the in juries on April 26. Ap pellant first told the
officer that he had lied at the hospital when he reported that he tripped over the cradle, and,
instead, reported that he tri pped while carrying the infant in the cloth carrier, causing the
infant to fall out of the carrier and onto the ground. He explained that he originally lied to
the officer because he was worried about upsetting K.W. and her family. He later admitted
that he “grabbed . . . and squeezed the infant’s legs to try to get him to cry to see if he was
performing CPR properly.” The state charge d appellant with one count of first-degree
assault in violation of Minn. Stat. § 609.2 21, subd. 1 (2014), one count of malicious

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punishment of a child in violation of Minn. Stat. § 609.377, subds. 1, 6 (2014), and third-
degree assault in violation of Minn. Stat. § 609.223 (2014).
At appellant’s jury trial, the physician wh o treated the infant while he was in the
intensive care unit at the Children’s Hospital testified that the injuries the infant sustained
are indicative of abuse. The physician noted that the “kind of deep [bruising found] in [the
infant’s] ear . . . is excepti onally unusual and highly concer ning” and explained that the
bruises on the infant’s chest, shoulder, and in his armpit us ually occur “when skin gets
pinched or folded as kids get grabbed.” The physician also testified that the markings on
the infant’s leg are typically seen after “a child . . . is . . . squeezed around the leg” or the
skin is “pinched between th e fingers” while the infant is “squeezed violently around an
extremity.”
Contrary to K.W. and appella nt’s assertion that the infa nt hit himself in the head
with his arms and hit his head against the bassinet, the physician testified that a three-week-
old cannot “generate enough fo rce” to cause the type of in juries observed, noting that
“bruising in nonmobile infants is extremely uncommon” and th at the infant “has bruises
on multiple body surfaces suggesting more than one impact or site of trauma not consistent
with a simple fall.” The physician also testified that the infant had (1) “significant bleeding
inside of his left eye,” known as retinal hemorrhaging, which “is a marker of significant or
severe trauma”; (2) multiple metaphyseal fract ures, or fractures near the growth plates
along the larger bones, whic h often occur “when extremities get pulled, jerked, [or]
twisted”; and (3) a brain contusion; all of which are indicative of more than a single “trauma
event.” Because he was unable to date the bone injuries and the brain contusion, he

6
acknowledged that “there is a possibility that there was a brai n injury on [the day before
the incident occurred] . . . th at led to the vomiting [that] improved on [the date of the
incident] . . . [and] that he . . . had a second brain injury . . . shortly before presentation that
made him have his cardiorespiratory arrest.” The pediatric radi ologist and pediatric
neuroradiologist similarly testified that th e blood found in the frontal lobes and the
surrounding hemisphere was caused by a severe brain contusion that was between three
and seven days old, four days after the date of the incident. At two years of age, the infant
remains unable to eat without the assistance of a feeding tube, is unable to lift his own head
or sit up without assistance, and experiences between four and five seizures a day.
Appellant’s counsel called pediatric forens ic pathologist Janice Ophoven to testify
as an expert witness. The forensic pathologist testified that the retinal hemorrhaging may
have occurred during childbirth. She also testified that “any symptoms of a head injury”
identified on the date of the incident may be the result of two sepa rate “impacts,” which
“together may have served to create the circ umstances that we sa w when the evaluation
was done.” Although she was unable to point to any intracranial damage to support her
assertion that the infant sustained two separate head injuries, she testified that his frequent
vomiting and irritability prior to the date of the incident suggests a prior head injury. She
also explained that a prior head trauma may impact a “child’s ability to react normally to a
subsequent event,” which may explain how a second short fa ll would cause serious brain
damage in a three-week-old infant.
Because the expert witnesses testified “e xtensively about [a head trauma] that
happened potentially on the 25th and [a second head trau ma] that happened on the 26th,”

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the district court expressed concerns that if the parties “submit either the definition of
assault in the 1st-degree or the definition of malicious punishment of a child causing great
bodily harm or substantial bodily injury . . . without a special interrogatory there is a
potential” for “half the jury to believe [appellant] committed the injury on the 25th and not
the 26th, or vice versa.” Although the pros ecution did not understa nd this issue to be
problematic “[b]ecause the instruction would be on or about the 26th,” the district court
cautioned that the parties may “still have a pr oblem of specific unani mity because that
doesn’t mean that [the jury is] unanimous as to causing the injury.” The court explained
that the state should not receive “the benefit of combining those two [dates] together in
order to get a conviction,” noting that “the jury still has to be convinced unanimously as to
what actions constitute assault in the 1st-degree.” As a result, the court amended the special
interrogatories to omit any reference to the in juries the infant sust ained on his legs and
limited the special interrogatories to (1) whether appellant caused the injury to the infant’s
brain, (2) whether the brain injury caused the cardiac arrest, and (3) whether these injuries
constitute great bodily harm.
The special interrogatories read to the jury instructed that:
If you find [appellant] guilty of [first-degree assault or
malicious punishment of a chil d] you will have . . . four
additional questions that are also on the form. [(1)] Did
[appellant] cause injury to [the infant’s] brain? And you will
mark yes or no. You must unani mously, in other words all of
you have to agree to the answers . . . . So you would mark yes
or no if there is a unanimous decision. [(2)] Was the brain
injury great bodily harm? Yes or no. [(3)] Did [appellant] cause
[the infant’s] cardiac arrest ? Yes or no. [(4)] And was the
cardiac arrest great bodily harm? And there is a place to mark
yes and a place to mark no.

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The district court further instru cted the jury that if it also found appellant guilty of the
charge of assault in the thir d-degree it must answer the a dditional special interrogatories:
“Did [appellant] cause injury to [the infant’s] eyes? . . . [Y]es or no. Did [appellant] cause
multiple bruises on [the infant’s] body? Yes or no.” The jury found appellant guilty of all
three charges and answered each of the specia l interrogatories affirm atively. The court
sentenced appellant to 103 mo nths in prison for the first-degree assault conviction;
appellant now appeals.
D E C I S I O N
I. The circumstantial eviden ce presented at trial wa s sufficient to prove
beyond a reasonable doubt that appe llant was the person who caused the
infant great bodily harm.

Appellant argues that the circumstantial evidence presented at trial was insufficient
to prove beyond a reasonable doubt that he was the person who caus ed the infant great
bodily harm because (1) K.W. provided conflicting statements to treating physicians and
police, and (2) the medical evidence presented at trial indicated that the assault that caused
the brain injury likely occurred before the date of the incident. For these reasons, appellant
requests that this court reverse his conviction and dismiss the first-degree assault charge.
Because the evidence in this case is suffi cient to support a guilty verdict under the
circumstantial-evidence standard, we affirm.
Before we may address the merits of appellant’s argument we must decide whether
to apply the two-step standard for circum stantial evidence or the traditional standard
applied in instances where a disputed element is proven by direct evidence alone. See State

9
v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (noting that when appellate courts are presented
with a situation in which bot h standards may conceivably ap ply, the direct evidence
standard applies when a disputed element is proved by direct evid ence alone). Although
there is direct evidence of the infant’s injuries in this case , this evidence does not prove
who inflicted these injuries, how the injuries were sustained, and when these injuries were
inflicted. We therefore review appellant’s challenge under the two-step circumstantial-
evidence standard.
Minnesota has long applied a separate stan dard of review to challenges to the
sufficiency of circumstantial evidence, State v. Johnson, 173 Minn. 543, 545-46, 217 N.W.
683, 684 (1928), and the Minnesota Supreme Court recently reaffirmed this standard, State
v. Harris, 895 N.W.2d 592, 600 (Minn. 2017) (“[W]e take this opportunity to reaffirm what
we have already stated about the circumstantial-evidence standard of review.”). Under the
circumstantial-evidence standard, this court must first “identify the circumstances proved”
and then “independently consider the reasonable inferences that can be drawn from those
circumstances, when viewed as a whole.” Id. at 598 (citation omitte d). “To sustain a
conviction based on circumstantial evidence, the reasonable inferences that can be drawn
from the circumstances proved as a whole must be consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis except that of guilt.” Id.
(quoting State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015)).
Under the first factor of the circumstan tial-evidence standard , this court must
“identify the circumstances proved.” State v. Andersen , 784 N.W.2d 320, 329 (Minn.
2010) (citation omitted). When determini ng the circumstances proved, this court

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disregards all evidence that is inconsistent with the jury’s verdict. Harris, 895 N.W.2d at
601. The first factor requires appellate courts to resolve all questions of fact in favor of the
jury’s verdict because we recognize that the jury, as the fact-finder, “is in a unique position
to determine the credibility of the witnesses and weigh the evidence before it.” Id. at 600
(citation omitted). As the fact-f inder, the jury “is free to accep t part and reject part of
witness’s testimony.” Id. (quotation omitted).
To convict appellant of firs t-degree assault, the state was required to prove that
appellant caused the infant great bodily harm. Minn. Stat. § 609.221, subd. 1. Assault is
defined as “(1) an act done with intent to cause fear in another of immediate bodily harm
or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.”
Minn. Stat. § 609.02, subd. 10 (2014). The Minnesota Legisl ature defines “great bodily
harm” as “bodily injury which creates a high probability of death, or which causes serious
permanent disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily memb er or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2014).
The state’s theory at trial was that appellant intentionally assaulted the infant while
the infant was in his care, causing the infant great bodily harm. The evidence presented at
trial, when viewed in the light most favorable to the conviction, proves that: (1) K.W. and
appellant were the primary caregivers and were the only individuals ever alone with the
infant; (2) K.W. only saw one or two minor bruises on the infa nt before she left to go to
McDonalds; (3) the infant was no longer ex hibiting flu-like sympto ms at the time K.W.
left to go to lunch; (4) appellant was the onl y individual who had contact with the infant

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while K.W. was at McDonalds; (5) when K.W. returned, the infant had extensive bruising
on multiple areas of his body, retinal hemorrh aging, a severe brain injury, and numerous
fractures; (6) the severe brain trauma caused the infant to go into cardiac arrest;
(7) appellant lied on multiple occasions when asked how the infant became injured; (8) the
types of injuries and markings the infant sust ained while in the care of appellant are not
consistent with a short fall, but are instead indicative of abuse; and (9) as a result of
appellant’s abuse, the infant is unable to ea t without the assistance of a feeding tube, is
unable to lift his own head or sit up without a ssistance at almost one year of age, and
experiences between four and five seizures every day.
Having identified the circumstances proved, this court must next consider “whether
a reasonable inference of guilt can be drawn from the circumst ances proved, viewed as a
whole, and whether a reasonable inference in consistent with guilt can be drawn from the
circumstances proved, agai n viewed as a whole.” Harris, 895 N.W.2d at 600. As the
supreme court recently clarified in Harris, the second step “does not encroach on the jury’s
credibility determinations because the act of inferring involves the drawing of permissible
deductions, not actual fact finding by the jury.” Id. at 600-01 (citing State v. Jones, 266
Minn. 526, 124 N.W.2d 729, 731 (1963)). Moreover, the second step ensures that there is
no reasonable doubt as to a defendant’s guilt because it requires appellate courts to consider
whether a reasonable inference inconsis tent with guilt may be drawn from the
circumstances proved. Id. at 601.
Appellant contends that, when viewed as a whole, a reasonable inference
inconsistent with guilt can be drawn from the circumstances proved. Specifically,

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appellant argues that it is reasonable to in fer from the circumstance s proved that K.W.
caused the brain injury that led to the infant’s cardiac arrest, not appellant. When viewed
as a whole, the circumstances proved preclude any reasonable inference inconsistent with
guilt.
It is true that the infant was ill the da y before appellant watched him, and that,
according to K.W.’s testimony, the infant ha d one or two bruises before he was in
appellant’s care. But these facts do not undermine the jury’s guilty verdicts, especially in
light of the other circumstances proved by the state. The infant had recovered from the flu
by the time K.W. left him in appellant’s care, and no other person had access to the infant
while appellant was caring for him. When K.W. returned, the infant had extensive bruising,
multiple fractures, and was unconscious; and when asked about the infant’s injuries,
appellant repeatedly lied. Th e only reasonable inference from all of the circumstantial
evidence presented by the state is that appella nt assaulted the infant, causing the infant
great bodily harm.
II. The district court did not err by failing to provide a specific unanimity
instruction.

Appellant also argues that the district court committed plain error affecting his
substantial rights by failing to give a specific unanimity instruction. At trial, appellant
argued that the infant sustained at least two separate head injuries, one on April 25 and one
on April 26; the state, however, only charged appellant with one count of first-degree
assault. After hearing expert testimony from the state and appellant, the district court raised
the issue of specific unanimity, noting its concern that half of the jury may convict appellant

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for the assault that pot entially occurred on April 25, while the other half of the jury may
convict appellant for the assau lt that occurred on April 26. For these reasons, appellant
argues that the lack of a specific unanimity instruction allowed the jury to convict him
without agreeing on which traumatic event constituted the offense, violating his right to a
unanimous verdict.
Because appellant did not obje ct to the lack of a specif ic unanimity instruction in
district court, this court may review only for plain error. State v. Milton, 821 N.W.2d 789,
805 (Minn. 2012). Under the plain error test, this court must consider whether the district
court’s jury instructions contained (1) an erro r, (2) that is plain, and (3) that affected
appellant’s substantial rights. Id. If this court determines that all three of these prongs are
satisfied, this court must determine whether th e plain error must be addressed in order to
ensure the fairness and the integrity of the judicial proceedings. Id. Because the district
court did not err in its instruction to the jury, we need not address the remaining prongs.
A jury’s verdict must be unanimous in all criminal cases. Minn. R. Crim. P. 26.01,
subd. 1(5). If the act itself is an element of the crime, as it is in first-degree assault, the
jury must unanimously agree on which act the defendant committed. See State v. Stempf,
627 N.W.2d 352, 358-59 (Minn. App. 2001) (h olding unanimity re quirement violated
when state introduced evidence of two acts of drug posse ssion and argued that the jury
could convict defendant without agreement as to which possession occurred, but only
charged defendant with one count of drug possession). Jury instructions therefore violate
a defendant’s right to a unanimous verdict when the instructions “allow for possible

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significant disagreement among jurors as to what [criminal] acts the defendant committed.”
Id. at 354.
In this case, the state did not argue that appellant assaulted the infant on two separate
occasions. In the prosecutor’s opening statement, he specifically limited the assault to the
date of the incident, April 26, stating “you’re going to hear from th[e] doctor who did the
well-baby checkup, . . . [that the infant] seemed just fine. There we re no bruises on him,
certainly nothing that cause[d] concern. That changed, and it changed very dramatically
on April 26th, of 2015.” Although the prosecutor di scussed appellant’s defense—that the
infant suffered a traumatic br ain injury on April 25 that caused his cardiac arrest on
April 26—during his closing statement, the prosecutor clearly argue d that the evidence
suggested only one act of first-degree assault:
The testimony really from everybody, including the statements
that the defendant gave the investigator, was that [the infant
was] really fine at the time th at [K.W.] and [roommate] left.
Now, he had been acting kind of irritable earlier in that day and
to some degree the day before, but he didn’t—nobody testified
that he had significant brui ses on him. There was some
discussion about possibly some small bruises on his face, and
we’ll talk about that more late r, but in terms of the extensive
bruising that he ended up having, the testimony [is] undisputed
that it wasn’t there.
. . . .
Now let’s talk about the head injury. And there was, you know,
discussion from both [the state’ s expert witness] and [the
defense’s expert witness] . . . [that] maybe we’re talking about
two head injuries here. Really the only evidence that was cited
for the possibility of a head in jury the day before was [the
infant’s] behavior. He was i rritable, he was vomiting, the
parents—or [K.W.] said that, well, she thought he was maybe
sick. But he was feeling better by the time they went to
McDonald’s.

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She also told investigators that , well, he had a bruise on his
head. And that bruise is part of what the doctors cited as, well,
maybe he had a head injury the day before. Think about that,
though. The bruise that she said that she saw on his head was
from supposedly [the infant] rolling into the side of his—of his
bassinet. And even [the defense’ s expert witness] said that
simply would not cause a head injury. And, frankly, you don’t
have to be a doctor to know th at one. A three-, almost four-
week-old child can’t even roll over on their own, certainly not
with enough force to cause a head injury. . . . The only
reasonable interpretation of the evidence is that [the infant] was
vomiting the day before becaus e kids vomit sometimes. And
he was kind of irritable because sometimes babies are irritable.
The evidence just doesn’t supp ort the idea that there was a
previous head injury. But frankly . . . even if it does, it doesn’t
change the final result.
. . . .
So the only reasonable explanati on for all of this is that
something very . . . bad happe ned. Something deliberate
happened on the 26th and it caused extens ive injuries on [the
infant].

Additionally, the district court addressed the issue with counsel, revised the special
interrogatories to specify that the brain injury and cardiac arrest constituted the only “great
bodily injury,” and gave a general unanimity instruction. The district court instructed the
jury that:
[w]hen you reach each verdict, each must be agreed upon by
all of you. In other words, your verdicts must be
unanimous. . . . You must unanimously, in other words all of
you have to agree to the answers to the questions that . . . we
call special interrogatories. So you would mark yes or no if
there is a unanimous decision.

Because the state did not intro duce evidence of two separate incidents of assault and the
state did not argue that either incident could satisfy the one first-degree assault charge, and
because the district court nevertheless provid ed a sufficient unanimity instruction and

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revised the special interrogatories accordingly, the failure to provide a specific unanimity
instruction was not plain error.
Affirmed.