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This opinion is nonprecedential except as provided by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
A22-1354

State of Minnesota,
Respondent,

vs.

Elvis Joko Porte,
Appellant.

Filed August 7, 2023
Affirmed
Worke, Judge

Olmsted County District Court
File No. 55-CR-20-4733

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Segal , Chief Judge; and
Worke, Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his witness-tampering conviction, arguing that the district
court’s jury instructions violated his right to a unanimous verdict. We affirm.
2
FACTS
On July 29, 2020, K.B. went shopping at a mall. As he was exiting the mall,
appellant Elvis Joko Porte confronted him in a truck. Porte got out of the truck, approached
K.B., punched him several times, and took his backpack.
K.L. exited the mall just after and saw K.B. and Porte. K.B. asked K.L. to call the
police. According to K.L.’s trial testimony, Porte was walking past her and K.L. was “a
couple feet away” as K.B. asked her to call the police, at which point Porte stated, “[B]-tch,
I’ll f-ck you up if you call the” police. K.L. understood this as a threat directed at her. In
a statement to police soon after the confrontation, K.L. similarly recounted twice that Porte
said to her, “Call the cops b-tch I’ll f-ck you up.”
In a postarrest statement offered into evidence, Porte admitted punching K.B. and
taking the backpack to collect a debt. But Porte denied threatening K.L., stating that K.L.
must have been “interpreting what [Porte] said to” K.B.
The state charged Porte with offenses incl uding first-degree witness tampering
under Minn. Stat. § 609.498, subd. 1(d) (2018). In the statement of probable cause, the
state alleged that Porte “yelled at [K.L.,] ‘Call the cops, b-itch and I will f*** you up[.]’”
The case went to trial. In its opening statement, the state identified K.L. as the alleged
witness-tampering victim.
After the state rested, the district court raised the possibility of Porte arguing that he
intended to tamper with a witness other than K.L. The district court wondered if it would
result in “no unanimity” regarding one of the elements of the offense if Porte made this
argument. But the district court opined otherwise, suggesting that the jury be instructed
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that witness tampering requires an attempt to “prevent or dissuade a person”—that is, not
any specific individual—“from providing information to law enforcement authorities
concerning a crime.”
Defense counsel disagreed, arguing that the court’s suggested instruction would
cause “unanimity issues” regarding intent. According to defense counsel, to be guilty of
witness tampering, the defendant must “direct th[eir] intent at a specific person.” Defense
counsel argued that the state needed to “add an additional charge with a different victim”
if it wanted to prosecute Porte for tampering with a witness other than K.L. The district
court disagreed and submitted its suggested instruction to the jury.
In closing argument and rebuttal, the prosecutor emphasized three times to the jury
that which witness Porte intended to tamper with did “not matter as long as [Porte] was
truly attempting to prevent or dissuade a person [from] providing information to law
enforcement.”
The jury found Porte guilty of first-degree witness tampering and fifth-degree
assault but acquitted him of aggravated and simple robbery. The district court sentenced
Porte to 38 months in prison for the witness-tampering conviction and 232 days in jail for
the fifth-degree assault conviction. This appeal followed.
DECISION
Porte argues that the district court violated his right to a unanimous verdict by
instructing the jurors such that they could find him guilty of witness tampering but not
agree on who was the intended victim of the crime. As a preliminary matter, the state
suggested in its brief that Porte failed to preserve his claim for appeal by failing to formally
4
object when the district court submitted the witness-tampering instruction to the jury. See
State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016) (explaining tha t unobjected-to jury
instructions may be reviewed for plain error). We also note that Porte did not specifically
request an instruction requiring unanimity as to the intended victim of witness tampering.
But “[i]f a defendant’s trial objection [to a jury instruction] embodies the arguments
raised on appeal, the claim has been properly preserved, even if the defendant did not
clearly articulate his objection to the instruction at trial.” State v. Porter, 674 N.W.2d 424,
428 (Minn. App. 2004). Based on the discussion between the district court and defense
counsel after the state rested, we infer that Porte’s unanimity objection to the jury
instruction at issue encompasses “the substance of [his] argument on appeal.” See id. And
during appellate oral argument, the state conceded that we may review the instruction under
our typical standard for objected-to jury instructions . We accordingly review the
instruction for an abuse of discretion. State v. Stempf, 627 N.W.2d 352, 354 (Minn. App.
2001) (reviewing whether jury instruction violated defendant’s right to unanimous verdict).
Turning to Porte’s claim, we start with the principle that “[j]ury verdicts must be
unanimous in criminal cases.” State v. Lagred, 923 N.W.2d 345, 348 (Minn. App. 2019)
(citing Minn. R. Crim. P. 26.01, subd. 1(5)); see also Ramos v. Louisiana, 140 S. Ct. 1390
(2020) (holding that Sixth Amendment right to jury trial as incorporated against states
requires jury unanimity for serious offenses). “To achieve that end, a jury must
‘unanimously find [ ] that the [state] has proved each element of the offense.” State v.
Pendleton, 725 N.W.2d 717, 730-31 (Minn. 2007) (first alteration in original) (quoting
State v. Ilhe, 640 N.W.2d 910, 918 (Minn. 2002)). We have held this to mean that “the
5
jury must unanimously agree on which acts the defendant committed if each act itself
constitutes an element of the crime.” Stempf, 627 N.W.2d at 35 4-55 (“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.”
(emphasis added)). Applying that rule, we held unconstitutional an instruction permitting
each juror to find guilt on one count of controlled-subst ance possession from one of two
“separate and distinct culpable acts.” Id. at 359. We reasoned that these acts lacked “unity
of time and place” and that each act “could support a conviction” independently. Id. at
358-59.
“But the jury does not have to unanimously agree on the facts underlying an element
of a crime in all cases.” Pendleton, 725 N.W.2d at 731. Differing juror resolutions of
“preliminary factual issues” may permissibly establish “‘alternative means of committing
a single offense.’” Id. (quoting Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality
opinion)); see Ilhe, 640 N.W.2d at 919 (holding that finding guilt of obstructing legal
process based on alternative means did not violate defendant’s right to unanimous verdict
in part because separate acts at issue were “part of a single behavioral incident”); State v.
Epps, 949 N.W.2d 474, 481 -82 (Minn. App. 2020) (explaining that the
“means-versus-elements analysis” requires us to examine “the plain language” of the
charging statute), aff’d, 964 N.W.2d 419 (Minn. 2021). Alternative means include
“different . . . states of mind . . . offered to prove an element of a crime.” State v. Dalbec,
789 N.W.2d 508, 511 (Minn. App. 2010), rev. denied (Minn. Dec. 22, 2010). To comport
with due process, the a lternative means must “show ‘equivalent blameworthiness or
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culpability,’” id. at 511 (quoting Pendleton, 725 N.W.2d at 731), and must not be “distinct,
dissimilar, or inherently separate.” Lagred, 923 N.W.2d at 354 (explaining that ultimate
due-process question is “whether the alternative means are consistent with fundamental
fairness”).
Here, the district court instructed the jury on witness tampering under Minn. Stat.
§ 609.498, subd. 1(d). Under the relevant language, whoever “intentionally . . . attempts
to prevent or dissuade, by . . . threats of injury to any person . . . , a person from providing
information to law enforcement authorities concerning a crime” is guilty of witness
tampering. Minn. Stat. § 609.498, subd. 1(d) (emphasis added).
Porte argues that the district court violated his right to a unanimous verdict by
instructing the jurors such that they could find him guilty of the sole witness-tampering
charge but internally disagree about the “factual scenario[]” that the state proved— with
which “person” Porte intended to tamper. Porte emphasizes that witness tampering is a
crime of specific intent—“an intent to cause a particular result.” State v. Fleck, 810 N.W.2d
303, 308 (Minn. 2012) (quotation omitted); see State v. Zupetz, 322 N.W.2d 730, 734
(Minn. 1982) (“[A]n attempt to commit any crime requires a specific intent to commit that
particular offense.” (quotation omitted)); State v. Collins, 580 N.W.2d 36, 44 (Minn. App.
1998) (“[T]he word ‘intentionally’ makes witness tampering a specific[-]intent offense.”
(quotation omitted)) , rev. denied (Minn. July 16, 1998). Porte appears to suggest that
finding guilt based on alternatives of which witness he specifically intended to tamper with
is tantamount to proving an element of the offense based on separate and distinct culpable
acts.
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We rejected a similar argument in State v. Begbie, 415 N.W.2d 103, 105-06 (Minn.
App. 1987), rev. denied (Minn. Jan. 20, 1988). In Begbie, the defendant told victim 1 in a
recorded phone call that he had hired someone to kill victim 1 and her husband (victim 2)
if the victims did not assume the defendant’s debt. 415 N.W.2d at 104. Victim 2 later
listened to the recording. Id. The state charged the defendant with terroristic threats under
Minn. Stat. § 609.713, subd. 1. Id. The applicable provision made it a crime to “threaten[]
to commit any crime of violence with purpose to terrorize another.” Minn. Stat. § 609.713,
subd. 1 (1986) (emphasis added); Begbie, 415 N.W.2d at 105.
On appeal of his terroristic-threats conviction, the defendant argued that the district
court’s jury instructions “violated his right to a[] unanimous verdict because they did not
require the jurors to unanimously agree who [the defendant] intended to threaten.” Begbie,
415 N.W.2d at 105. This court affirmed, concluding that who the defendant intended to
threaten was a question of alternative means. Id. at 106. We reasoned that
the jury could have reasonably found [that the defendant] had
intended to terrorize both [victim 2] and [victim 1]. There was
sufficient evidence for the jury to find [the defendant] guilty of
terroristic threats to both victims. It is sufficient that all jurors
unanimously agreed on their ultimate conclusion that [the
defendant] was guilty of the crime charged, even though they
may not have agreed upon exactly which victim [the
defendant] had intended to terrorize.
Id.
Similar reasoning applies here. Analogous to the defendant in Begbie, Porte argues
that the jury needed to unanimously agree on who was the intended victim. But like the
terroristic-threats provision in Begbie, the witness-tampering provision here “does not
8
make the identity of the person who is [tampered with] an element of the crime.” Stempf,
627 N.W.2d at 356 (explaining Begbie); see also State v. Winford, No. A13- 1719, 2014
WL 4288881, at *3 (Minn. App. 2014) (concluding that instruction permitting jury to find
defendant guilty of burglary based on assaulting one of three alternative people in the
building did not violate defendant’s right to unanimous verdict because first-degree
burglary statute “merely require[d] the state to prove that appellant assaulted ‘a person’
within the home” (emphasis added)), rev. denied (Minn. Nov. 25, 2014).
1 And “the jury
could have reasonably found [that Porte] had intended to” tamper with K.L., K.B., or both.
Begbie, 415 N.W.2d at 106. It is therefore “sufficient that all jurors unanimously agreed
on their ultimate conclusion that [Porte] was guilty of” witness tampering even if they
disagreed about the intended victim. Id.
The specific-intent requirement for witness tampering does not change this
conclusion. The “with purpose” clause in Begbie plainly created such a requirement too.
Id. at 105 (noting that “‘purpose’ in the context of this statute means ‘aim, objective, or
intention.’” (quoting State v. Schweppe, 237 N.W.2d 609, 614 (Minn. 1975)); see also State
v. Wilson, 830 N.W.2d 849, 853 (Minn. 2013) (holding that phrase “for the purpose of”
created specific-intent crime because “‘purpose’ is synonymous with ‘intention’ and is
defined as the ‘result or an effect that is intended or desired.’” (quoting American Heritage
Dictionary 1471 (3d ed. 1996)). Begbie’s reasoning holds up here.

1 Nonprecedential opinions are not binding but may be persuasive, as Winford is here.
Minn. R. Civ. App. P. 136.01, subd. 1(c).
9
Porte’s reliance on our use of the single-behavioral-incident analysis from the
sentencing context when determining whether lack of unanimity as to means violates due
process is misplaced. See State v. Infante, 796 N.W.2d 349, 356- 57 (Minn. App. 2011).
Porte points out that “acts committed against separate victims” do not constitute a single
behavioral incident that would otherwise allow a defendant to avoid multiple sentences for
multiple offenses arising from those acts. Munt v. State, 920 N.W.2d 410, 417 (Minn.
2018). But Porte ignores that this rule is intended to recognize that “whe[n] multiple
victims are involved, a defendant is equally culpable to each victim.” State v. Edwards,
774 N.W.2d 596, 605 (Minn. 2009). Here, Porte’s argument would “permit the guilty
defendant to escape accountability under the law because jurors could not unanimously
choose beyond a reasonable doubt which of several alternate ways the defendant actually
participated, even though all agree that he was, in fact, a participant.” Begbie, 415 N.W.2d
at 106 (quotation omitted).
Accordingly, this court has not strictly applied the single-behavioral-incident
analysis in the alternative-means context. For example, we held due process satisfied in
the alternative-means context when “various acts occurred over a period of [24 hours] but
. . . all occurred at the same place and involved a single victim.” Dalbec, 789 N.W.2d at
512. Yet “acts that lack a unity of time” typically “do not constitute a single behavioral
incident.” Munt, 920 N.W.2d at 416-17.
We likewise decline to rigidly apply the single-behavioral-incident analysis here as
Porte suggests. At issue is a single act of witness tampering—not separate and distinct
culpable acts —unified by time and place with “undisputed facts” on appeal. Ilhe,
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640 N.W.2d at 919 (concluding that jury instruction did not risk unfairness to defendant in
part because “the facts were undisputed”). And any factual separation between finding
guilt from alternative specific intents during this single act was even less than that in
Begbie. There, victim 2 received the threat after the fact, whereas K.L. and K.B.
immediately heard Porte’s threat. We therefore discern no risk of “serious unfairness” to
Porte from any factual separation between alternative states of mind here. See i d. at 918
(quoting Richardson v. United States, 526 U.S. 813, 820 (1999)).
Porte does not contend that these alternative means are somehow different in terms
of blameworthiness or culpability. Nor does he contend that they are inherently distinct,
dissimilar, or separate. We observe no relevant difference between intending to threaten
one person or another from contacting law enforcement concerning a crime, particularly
when a single act of witness tampering unified by time and place is at issue. This is not a
case where the jury could choose from alternative statutory mental states that are
qualitatively different, which nonetheless may comport with fundamental fairness. See
Pendleton, 725 N.W.2d at 732 (holding due process satisfied when instruction permitted
jury to find defendant guilty of kidnapping but internally disagree about whether he
committed offense for purpose of “committing great bodily harm, committing murder, or
facilitating flight after third-degree assault”). As such, we conclude that the district court’s
instruction permitting the jury to internally disagree about with whom Porte specifically
intended to tamper did not violate Porte’s right to a unanimous verdict.
Affirmed.