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This opinion is nonprecedential except as provided by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
A23-1361

State of Minnesota,
Respondent,

vs.

Dejarriel Travon Burgie,
Appellant.

Filed July 22, 2024
Affirmed
Frisch, Judge

Ramsey County District Court
File No. 62-CR-23-217

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Frisch, Presiding Judge; Larkin, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following his conviction of first-degree burglary, appellant argues that he is entitled
to a new trial because the district court’s jury instructions deprived him of his right to a
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unanimous verdict. Because we discern no error in the district court’s jury instructions, we
affirm.
FACTS
Respondent State of Minnesota charged appellant D ejarriel Travon Burgie with
first-degree burglary of a dwelling in the presence of another person in violation of Minn.
Stat. § 609.582, subd. 1(a) (2022), and first-degree burglary with a dangerous weapon in
violation of Minn. Stat. § 609.582, subd. 1(b) (2022).1 Neither charge specified a particular
underlying crime or victim. At trial, the district court permitted the state to add a charge
of second-de gree assault in violation of Minn. Stat. § 609.222 (2022), which the state
intended to prove as the underlying offense for the burglary charges. The district court
limited the second-degree assault charge to one victim—C.J. The evidence elicited at trial
was as follows.
Burgie and T.T. were in a long-term relationship and have two children together.
Burgie was not on the lease for T.T.’s apartment. In fall 2022, T.T. began seeing C.J.
Burgie came to T.T.’s apartment on several occasions, sometimes forcibly entering the
apartment and becoming violent with T.T. or C.J.
On the evening of December 23, 2022, T.T. was at her apartment with the children
and C.J. T.T. heard pounding on the door. No one inside the apartment opened the door.
Burgie kicked the door down, entered the apartment, and asked where his kids were. C.J.
stabbed Burgie in the leg with a sword or machete. C.J. saw that Burgie had a gun in his

1 Parts of the record refer to the appellant by the name “Burgin.” But we use the name
Burgie in this opinion, as it is what was used in his appellate brief.
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hand, and both T.T. and C.J. saw Burgie drop a gun. C.J. and Burgie fought, during which
Burgie picked up the gun, cocked it, and pointed it at C.J. T.T. left the apartment with their
daughter and called 911. Eventually, Burgie left the apartment, taking the gun with him.
While finalizing the jury instructions, the state requested that the court include both
T.T. and C.J. in the description of the elements for the burglary charges. The state
explained that it would “argue that [Burgie] clearly expected [T.T.] to be present. But also
with the high likelihood that [C.J.] could be present too.” Defense counsel objected,
arguing that such an instruction would create an issue impacting Burgie’s right to a
unanimous verdict. The district court disagreed, stating, “The other option, of course, is to
simply say another. Another person. Which could presumably include the children. I
don’t think there is any evidence of that.” In the final jury instructions, the district court
included both T.T. and C.J. in describing the elements of burglary.
The jury found Burgie guilty of first-degree burglary in the presence of another
person and first-degree burglary with a dangerous weapon. The jury also found Burgie not
guilty of second-degree assault with a dangerous weapon. The district court entered a
conviction of first-degree burglary with a dangerous weapon, did not adjudicate the count
of first-degree burglary in the presence of another person, and sentenced Burgie to 120
months’ imprisonment.
Burgie appeals.
DECISION
Burgie challenges the district court’s jury instructions arguing that the instructions
deprived him of his right to a unanimous verdict because the jury was improperly permitted
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to find him guilty if he entered T.T.’s apartment with the intent to assault either T.T. or
C.J. We disagree.
A “jury’s verdict must be unanimous in all cases.” Minn. R. Crim. P. 26.01,
subd. 1(5). “To achieve that end, a jury must unanimously find that the government has
proved each element of the offense.” State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn.
2007) (quotation omitted). “[T]he jury must unanimously agree on which acts the
defendant committed if each act itself constitutes an element of the crime,” but the jury
need not agree on “alternative means or ways in which the crime can be committed.” State
v. Stempf, 627 N.W.2d 352, 354-55 (Minn. App. 2001) (quotation omitted). “Thus, a jury
must reach a unanimous verdict on all elements of the crime but need not agree on the
underlying facts.” State v. Dalbec, 789 N.W.2d 508, 511 (Minn. App. 2010), rev. denied
(Minn. Dec. 22, 2010). But “different factual courses of conduct or states of mind that are
offered to prove an element of a crime must show equivalent blameworthiness or
culpability.” Id. (quotation omitted). We review a district court’s jury instructions,
including whether the instructions violated a defendant’s right to a unanimous verdict, for
an abuse of discretion. Stempf, 627 N.W.2d at 354.
Burgie focuses his argument on the intent element of the burglary charges. To prove
intent under the state’s theory, the state was required to prove that Burgie entered a building
without consent and with intent to commit a crime.
2 Minn. Stat. § 609.582, subd. 1. The

2 A person may also commit a burglary by entering a building without consent and
committing a crime while in the building. Minn. Stat. § 609.582, subd. 1 (2022). The
state’s theory of the case was limited to Burgie’s intent to commit a crime, and the district
court limited the jury instructions accordingly.
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alleged underlying crime here was Burgie’s attempt to commit second-degree assault.
Second-degree assault occurs when a person “assaults another with a dangerous weapon.”
Minn. Stat. § 609.222, subd. 1.
The district court instructed the jury that an e lement of first-degree burglary is that
Burgie entered with “intent to commit assault in the second degree.” The district court
then instructed the jury that the elements of second-degree assault include that Burgie
“assaulted [C.J.] or [T.T.],” where assault “means an act done with intent to cause [C.J.] or
[T.T.] to fear immediate bodily harm or death,” and that Burgie “in assaulting [C.J.] or
[T.T.] used a dangerous weapon.” And it instructed the jury that its verdict must be
unanimous.
The identity of the victim of Burgie’s intended crime is not “an element of the
crime” and therefore jury unanimity with respect to who Burgie intended to assault was
not required. Stempf, 627 N.W.2d at 354-55. We have addressed similar arguments
regarding verdict unanimity and multiple potential victims. In State v. Begbie, the
defendant argued that his right to a unanimous verdict was violated because the jury
instructions did not require the jury to agree on whether the defendant intended to threaten
a husband or wife when the defendant called the couple’s home, spoke directly to only the
wife, and threatened both husband and wife’s lives during the conversation. 415 N.W.2d
103, 104-05 (Minn. App. 1987), rev. denied (Minn. Jan. 20, 1988). We concluded that the
jury agreed that the defendant threatened wife and could have reasonably found the
defendant intended to, and did, terrorize both husband and wife. Id. at 106. We stated that
“[i]t is sufficient that all jurors unanimously agreed on their ultimate conclusion that [the
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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. Thus, the jury was not
required to determine whether the defendant threatened husband or wife because the
relevant statute did not make the identity of the victim an element of the crime. Stempf,
627 N.W.2d at 356 (describing Begbie).
In State v. Porte, we rejected an argument that jury instructions violated a
defendant’s right to a unanimous verdict because the jurors could find the defendant guilty
of witness tampering without agreeing on who was the intended victim of the crime.
No. A22-1354, 2023 WL 5012210, at *2 (Minn. App. Aug. 7, 2023), rev. denied
(Minn. Dec. 19, 2023).3 We reasoned that the witness-tampering statute does not make the
identity of the victim an element of the crime—even though the statute included language
suggesting the requirement of specific intent—and we declined to apply
single-behavioral-incident analysis because only a single act of witness tampering was at
issue. Id. at *3-4.
Burgie’s arguments are similar to those we rejected in Begbie and Porte. Here, the
identity of the victim is not an element of second-degree assault. Rather, as noted by the
district court, second-degree assault occurs when a defendant “assaults another with a
dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (emphasis added). Whether first-
degree burglary is a specific-intent crime does not alter that conclusion. See Porte, 2023
WL 5012210, at *4 (citing Begbie, 415 N.W.2d at 105). And, like in Porte, we need not

3 We cite nonprecedential opinions for their persuasive authority. Minn. R. Civ. App.
P. 136.01, subd. 1(c).
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apply single-behavioral-incident analysis because the offense at issue is a single act of
burglary where both C.J. and T.T. were both present in the apartment at the time Burgie
entered. Id. at *4.
Because the district court correctly instructed the jury that Burgie could have
intended to assault either T.T. or C.J. as part of the underlying crime for his first-degree
burglary charges, the instructions did not violate Burgie’s right to a unanimous verdict.
Affirmed.