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This opinion will be unpublished and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
A17-1432

State of Minnesota,
Respondent,

vs.

Romeo Orlando Davis,
Appellant.

Filed September 17, 2018
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CR-17-288

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 Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court plainly erred by failing to give the jury a
specific-unanimity instruction. We affirm.

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FACTS
On January 12, 2017, A.L. was working at a convenience store when J.W. came in
and told her that J.W.’s cousin was going to shoot appellant Romeo Orlando Davis . A.L.
told Davis about the encounter. That evening, J.W. and J.K.W. went to the convenience
store to buy food and drinks. Davis also went to the store in A.L.’s vehicle to pick A.L. up
from work. Davis saw J.W. and went into the store. Davis flashed a silver object at J.W.
and then left in A.L.’s vehicle. J.W. and J.K.W. left and called the police.
Police went to the address associ ated with the vehicle’s license -plate number and
observed the vehicle parked outside. After approximately 20 minutes, the vehicle pulled
out of the lot and police pulled it over. A.L. was driving and Davis was in the passenger
seat. Police searched the vehicle and found a silver and black handgun in the trunk. DNA
testing was inconclusive as to whether Davis’s DNA was on the gun. Davis was charged
with possession of a firearm by an ineligible person, and possession of ammunition by an
ineligible person.1
At trial, J.K.W. testified that during the incident at the store, Davis told J.W. that he
“keep[s] a pole on [himself] too” and showed his gun. She testified that she was sure that
it was a gun and that she could see the handle. She testified that the gun was silver.
J.W. testified that Davis approached her at the store and said, “‘Tell that b -tch to
keep my name out her mouth. I keep a pole on me too. And we can get popping or
cracking.’” J.W. clarified that “pole” means gun. J.W. testified that Davis lifted a gun out

1 Davis was also charged with terroristic threats, now known as threats of violence, but
those counts were dismissed.

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of his sweater and showed her the top of it when he was “a couple inches” from her. She
testified that she “kn[e]w it was [a] gun. It look[ed] like a gun.” J.W. stated that she could
see the handle of the gun, and that the gun was silver and black. J.W. identified the gun
found in the trunk of the vehicle as the gun Davis flashed at her.
The state played surveillance video that depicted the incident. The video shows
Davis walking into the store and “lift[ing] his arm u p when he was talking to [J.W.] ” A
silver object is visible in Davis’s waistline.
Davis testified that he was gesturing with his hands while speaking to J.W. and that
a phone in his pocket began vibrating. Davis testified that he reflexively pulled out “a
silver phone” with “a black bumper case on it.” He denied having a gun.
Davis testified that after the encounter, he and A.L. went home. He denied ever
going into the trunk of the car that day. He admitted that he keeps certain items in the car,
such as boots and shoes, but testified that other people use the car, including A.L., relatives,
and friends. Davis explained that he no longer had the silver cellphone because it belonged
to a neighbor. He testified that he “was resetting [the phone] for this person” and that after
the encounter, he gave the phone back to the neighbor before he was stopped by police.
Davis never requested a specific-unanimity jury instruction. The district court gave
the standard unanimous jury instruction. During closing argument, the state asserted that
it had “proven two forms of possession. The video with flashing shows that [Davis]
actually has it on his person. When it’s discovered in the trunk, he’s exercising dominion
and control over it with constructive possession.”

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The jury found Davis guilty as charged, and the district court sentenced Davis to 60
months in prison. This appeal followed.
D E C I S I O N
Davis argues that the district court plainly erred by failing to instruct the jury that it
needed to unanimously agree as to which acts Davis committed to find him guilty. Because
Davis did not request this instruction or object to its omission at trial, this court reviews
this issue for plain error. See State v. Hayes, 831 N.W.2d 546, 555 (Minn. 2013) (stating
that “[u]nobjected -to jury instructions are reviewed for plain error ”). Davis must
demonstrate that “(1) there was error; (2) the error was plain; and (3) his substantial rights
were affected.” See id. If each element is satisfied, this court should “assess[ ] whether it
should address the error to ensure fairness and the integrity of the judicial proceedings.”
Id. (quotation omitted).
“Jury verdicts in all criminal cases must be unanimous.” State v. Pendleton , 725
N.W.2d 717, 730 (Minn. 2007). Consequently, a jury must unanimously find that the state
has proved each element of the charged offense. Id. at 730-31. “Whe[n] jury instructions
allow for possible significant disagreement among jurors as to what acts the defendant
committed, the instructions violate the defendant’s right to a unanimous verdict.” State v.
Stempf, 627 N.W.2d 352, 354 (Minn. App. 2001). But “if the statute establishes alternative
means for satisfying an element, unanimity on the means is not required.” State v. Ihle ,
640 N.W.2d 910, 918 (Minn. 2002).
The state argues that, regardless of whether the district court erred and the error was
plain, Davis cannot demonstrate prejudice. “An error affects a defendant’s substantial

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rights if the error was prejudicial and affected the outco me of the case.” State v. Wenthe,
865 N.W.2d 293, 299 (Minn. 2015) (quotation omitted). That is , “there must be a
reasonable likelihood that the [failure to give] the instruction in question would have had
a significant effect on the verdict of the jury.” Id. (quotations omitted). An appellant bears
the “heavy” burden of persuasion on this third prong of the plain-error test. State v. Griller,
583 N.W.2d 736, 741 (Minn. 1998).
The state presented evidence that Davis walked into the store and flashed a gun at
J.W. and J.K.W. Although it is not entirely clear from the surveillance video that Davis
had a gun in his waistband, both J.W. and J.K.W. testified that the object in his waistband
was a gun. Both witnesses testified that the gun was silver, and J.W. positively identified
the gun found in the trunk of the car as the gun Davis flashed at her.
The state also presented a recording of a phone call between Davis and A.L. while
Davis was in jail. Davis discussed A.L.’s potential testimony at trial, stating that she would
be asked “have you ever seen Mr. Davis possess this firearm and stuff and like no I never
seen him possess it.” A.L. denied that Davis told her that she could testify that she had
never seen him with a firearm. In addition, Davis a dmitted to making inconsistent
statements concerning the incident.
The evidence against Davis, including the eyewitness testimony, jail call, and
Davis’s admission to giving inconsistent statements, was overwhelming. See State v.
Ayala-Leyva, 848 N.W.2d 546, 552, 555 (Minn. App. 2014) (concluding that the appellant
could not demonstrate prejudice as a result of the district court’s failure to give a specific -
unanimity instruction because “[t]he evidence of [the] appellant’s guilt was overwhelming”

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and “it [wa]s clear that the jury rejected [his] defense as unbelievable ”), review denied
(Minn., Aug. 11, 2015) . We conclude that Davis cannot demonstrate that the district
court’s failure to give a specific-unanimity jury instruction was prejudicial. Therefore, we
need not address whether the district court erred by failing to give that instruction or
whether any error was plain.
Affirmed.