State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0209

State of Minnesota,
Respondent,

vs.

Jerome William Darkow,
Appellant.

Filed June 7, 2021
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Hennepin County District Court
File No. 27-CR-18-22957

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Bj orkman, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from final judgment of conviction for seco nd-degree assault,
appellant challenges the district court’s jury instructions for second-degree assault and the
district court’s sentencing order requiring life time predatory offender registration. First,

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we conclude that the district court did not commit a clear or obvious error of law when it
instructed the jury, and we affirm the judgment of conviction. Second, we conclude that
the record does not support imposition of life time registration terms. We reverse that
portion of the sentence imposed and remand for resentencing.
FACTS
On September 12, 2018, respondent State of Minnesota charged appellant Jerome
Darkow with second-degree assault with a da ngerous weapon, in violation of Minnesota
Statutes section 609.222, subdivision 1 (2016 ). The case proceeded to trial. Witness
testimony and security footage1 of the incident established the following facts.
On June 20, 2018, Darkow and C.J. were in a parking lot ou tside an apartment
complex. According to one witness, Darkow told C.J. “I oughta punch you in the face”
and then attempted to hit C.J., but did not make contact. C.J. testified that Darkow punched
him in the back of the head. C.J. ran away and Darkow chased after him. C.J. testified
that Darkow “was chasing me around telling me he was going to kill me.” At some point
during the chase, C.J. slipped on a patch of oil and scraped his arm. Darkow continued to
chase C.J. on foot. Darkow ev entually got into a minivan and drove after C.J. Darkow

1 In his pro se supplemental brief, Darkow st ates that his conviction should be reversed
because the security video was played at a faster-than-normal speed. Darkow also asserts
that he did not have an opportunity to call witnesses and that we should reverse the lifetime
registration requirement. He cites no authority and develops no argument supporting these
statements. An assignment of error based on mere assertion and not supported by any
argument or authorities is forfeited and will not be considered on appeal unless prejudicial
error is obvious on mere inspection. State v. Andersen, 871 N.W.2d 910, 915 (Minn. 2015).
Although we address the registration argument based on the similar argument in appellant’s
principal brief, we decline to address Darkow’s remaining pro se arguments.

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drove up onto and through the gr assy area where C.J. was standing such that C.J. had to
jump out of the way to avoid being hit. Darkow then drove away and C.J. called 911.
Darkow requested that the district court instruct the jury re garding the second-
degree assault offense and regarding a fifth- degree assault as a possible lesser-included
offense. The district court granted this re quest, instructing the ju ry on second-degree
assault as follows:
Assault in the second de gree, dangerous weapon,
defined. Under Minnesota law, whoever assaults another with
a dangerous weapon is guilty of a crime. The elements of
assault in the second degree ar e: First, [Darkow] assaulted
[C.J.]. The term assault as used in this charge means an act
done with intent to cause [C.J.] to fear immediate bodily harm
or death or the attempt to inflict bodily harm upon [C.J.].

The district court also instruct ed the jury on fifth-degree assault, differentiating between
assault-fear and assault-harm:
Assault in the fifth degree—intent to cause fear or inflict
bodily harm defined. Unde r Minnesota law, whoever
1) commits an act with the intent to cause fear in another of
immediate bodily harm or death or 2) intentionally inflicts or
attempts to inflict bodily harm upon another is guilty of a
crime.

The elements of assault are: First, the defendant
assaulted [C.J.]. The term assault as used in this charge means
an act done with the intent to cause [C.J.] to fear immediately
bodily harm or death. Bodily harm means physical pain or
injury, illness or any impairment of a person’s physical
condition. It is not necessary for the State to prove that the
defendant intended to inflict bodily harm or death but only that
the defendant acted with the inte nt that would fear that the
defendant would so act.

. . . .

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Assault in the fifth degree—infliction of bodily harm
elements. The elements of assa ult are: First, the defendant
assaulted [C.J.]. The term assault as used in this charge means
intentional infliction of bodily harm upon [C.J.]. Bodily harm
means physical pain or injury, illness or any impairment of a
person’s physical condition. In order for an assault to have
been committed, it is not necessa ry that there have been any
physical contact with the body of the person assaulted.

The jury verdict form did no t differentiate between assault-harm and assault-fear.
Darkow did not object to thes e instructions, and the jury found Darkow guilty of second-
degree assault with a dangerous weapon.
The district court then ordered a presente nce investigation (PSI) report. The PSI
noted a 2001 conviction for “Crim Sex 4th Degree, Age” and dismissal of the charge as it
related to force. The PSI also noted a felony conviction for failing to register as a predatory
offender from 2006 and a gross misdemeanor conviction for failing to register from 1999
that was subsequently dismissed. The distri ct court sentenced Darkow to a term of 52
months’ imprisonment and ordered Darkow to register as a predatory offender for life. 2
Darkow appeals.
DECISION
I. Failure to Instruct the Jury Regarding Unanimity
Darkow argues that the district court co mmitted plain error when it instructed the
jury that it could convict Darkow of second-degree assault without unanimously agreeing

2 While this appeal was pending, the district court amended the sentencing order, vacating
the lifetime registration and ordering registration for ten years. This order is not part of the
appellate record and Darkow correctly points out that the district court did not have
authority to amend the order while this appeal was pending. Minn. R. Civ. App. P. 108.01,
subd. 2.

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whether Darkow intended to cause fear or at tempted to inflict bodily harm. Because the
district court did not contravene settled law, Darkow cannot demonstrate plain error.
“Jury verdicts in all criminal cases mu st be unanimous,” and the jury must
unanimously agree that each element of the offense has been proven. State v. Pendleton,
725 N.W.2d 717, 730-31 (Minn. 2007) (citing Minn. R. Crim. P. 26.01, subd. 1(5)). “[T]he
jury must unanimously agree on which acts the defendant committed if each act itself
constitutes an element of the crime.” State v. Stempf, 627 N.W.2d 352, 355 (Minn. App.
2001) (citing Richardson v. United States , 526 U.S. 813, 824, 119 S. Ct. 1707, 1713
(1999)). But unanimity is not required with re spect to alternate means of satisfying an
element of the offense. Pendleton, 725 N.W.2d at 731; State v. Ihle, 640 N.W.2d 910, 918
(Minn. 2002).
We review unobjected-to jury instructions for plain error. Ihle, 640 N.W.2d at 918.
“Under the plain-error doctrine, the appellant must show that there was (1) an error;
(2) that is plain; and (3) the erro r must affect substantial rights.” State v. Kelley , 855
N.W.2d 269, 273-74 (Minn. 2014). If “any one of the requirements” of the plain-error test
is not satisfied, we “need not address any of the others.” State v. Lilienthal, 889 N.W.2d
780, 785 (Minn. 2017) (quotation omitted). “An error is plain if it is clear or obvious; this
means an error that violates or contradicts case law, a rule, or an a pplicable standard of
conduct.” State v. Mosley, 853 N.W.2d 789, 801 (Minn. 2014). Conversely, an error that
violates or contradicts law that is unsettled at the time of a ppellate review is not plain.
Kelley, 855 N.W.2d at 277, 280 n.9; State v. Crowsbreast, 629 N.W.2d 43 3, 438 (Minn.

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2001) (explaining that continuing doubt re garding the controlling law cut against the
defendant’s plain-error argument because it confirmed that the error was not plain).
Assuming without deciding that the district court erred, we conclude that the alleged
error is not plain. Minnesota law defines assau lt as “(1) an act done with intent to cause
fear in another of immediate bodily harm or death; or (2) the inten tional infliction of or
attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2016). In
State v. Dalbec , this court determined that these subparts present alternative means of
committing assault. 789 N.W.2d 508, 512-13 (Minn. App. 2010), review denied (Minn.
Dec. 22, 2010). Under Dalbec, unanimity is not required. Id. at 513. Two years after this
court decided Dalbec, the supreme court considered the ty pe of intent required to prove
assault-fear and assault-harm offenses in State v. Fleck , 810 N.W.2d 303, 309 (Minn.
2012). The supreme court concluded that an assault-fear offense is a specific-intent crime
and an assault-harm offense is a general-intent crime. Fleck, 810 N.W.2d at 309.
Distinguishing these two subparts in that way calls into que stion the holding in Dalbec.
See State v. Patzold , 917 N.W.2d 798, 811-12 (Minn. App. 2018), review denied (Minn.
Nov. 27, 2018).
Neither this court nor the Minnesota Su preme Court, however, has determined
whether Dalbec survives Fleck unaltered. See, e.g., State v. Machacek , No. A13-0508,
2015 WL 4523505, at *6-7 (Minn. App. June 29, 2015) (concluding no plain error occurred
and noting that this court has “cited Dalbec with approval in post- Fleck unpublished
opinions rejecting jury-unanimity arguments in assault cases”), review denied (Minn. Sept.
15, 2015); State v. Moallin, No. A14-0329, 2014 WL 7237037, at *4-5 (Minn. App. Dec.

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22, 2014) (citing Dalbec with approval and concluding that there was no plain error),
review granted (Minn. Feb. 25, 2015) and order granting review vacated (Minn. Aug. 11,
2015); State v. Evans , No. A13-2256, 2014 WL 7011130, at *2-3 (Minn. App. Dec. 15,
2014) (applying Dalbec and concluding there was no plain error), review granted (Minn.
Feb. 25, 2015) and order granting review vacated (Minn. Aug. 11, 2015 ). We need not
determine whether any aspects of Dalbec survive Fleck. Instead, we review whether the
district court committed a clear and obvio us error in violation of settled law. See Kelley,
855 N.W.2d at 277, 280 n.9; Crowsbreast, 629 N.W.2d at 438. Given this court’s
discussion of and continued approval of Dalbec, Darkow cannot establish that the district
court contravened settled law. Because the alleged error is not plain, we affirm the
judgment.
II. Lifetime Predatory Offender Registration
Darkow argues that the district court erred when it ordered lifetime predatory
offender registration. The state agrees an d makes no argument that the district court
properly imposed a registration requirement under any other statutory provision. Instead,
the state requests reversal of the registration requirement. We agree with the parties that
given the record before it, the district c ourt erred in imposing a lifetime registration
requirement.
Minnesota Statutes sections 243.166 an d .167 (2016) govern predatory offender
registration. Section 243.166, subdivision 1b, provides an enumerated list of circumstances
requiring registration. In addition to th ose requirements, section 243.167 requires
registration in certain situations. Minn. St at. § 243.167, subd. 2 (2016). Whether a

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defendant’s conduct requires predatory offender registration is a question of law reviewed
de novo. Boutin v. LaFleur, 591 N.W.2d 711, 714-15 (Minn. 1999); see also State v. Lopez,
778 N.W.2d 700, 705 (Minn. 2010) (reviewing de novo the application of section 243.166
to undisputed facts). Even when parties agree that the district court erred, appellate courts
independently review the legal issue. State v. Hannuksela , 452 N.W.2d 668, 673 n.7
(Minn. 1990).
In this case, Darkow’s current offense does not require registration under section
243.166, subdivision 1b. In addition, although Darkow’s cu rrent offense qualifies as a
crime against the person, Darkow’s previous convictions do not sa tisfy the requirements
of section 243.167, subdivis ion 2(a)(2), and the record below does not establish the
requirements of section 243.167, subdivision 2(b). We conclu de that on this record, the
district court erred when it imposed the lifetime registration requirement. We reverse the
imposition of registration terms and remand to the district court to vacate the lifetime
predatory registration requirement.
Affirmed in part, reversed in part, and remanded.