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This opinion is nonprecedential except as provided by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
A23-1400

State of Minnesota,
Respondent,

vs.

Tracey Dee Keyes,
Appellant.

Filed July 22, 2024
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CR-22-661

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

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

Cathryn Middlebrook, Chief A ppellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from his convictions of first-degree criminal sexual conduct, third-degree
assault, and threats of violence, appellant argues that the district court (1) erred by denying
his request for a specific unanimity jury instruction; (2) erred by denying his motion for an
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order guaranteeing him a jury trial before a fair cr oss-section of the community; and
(3) abused its discretion by allowing respondent to amend its complaint. Appellant also
filed a pro se supplement brief asserting his innocence. We affirm.
FACTS
Respondent State of Minnesota charged appellant Tracey Dee Keyes with first -
degree criminal sexual conduct—fear of great bodily harm; third-degree assault; threats of
violence; and false imprisonment. Keyes subsequently filed a motion challenging jury
representation in Ramsey County. Keyes was one of “[m]ultiple defendants” who filed
similar motions arguing that the “pool from which the juries will be drawn in Ramsey
County do not represent a fair cross-section of the community, in violation of the Sixth
Amendment.” After consolidating the motions, the district court denied them, concluding
that the “Defendants [including Keyes] have failed to make a prima facie showing that the
statewide jury source list systematically excludes Black and African American eligible
citizens from the list.”
A jury trial was held in January 2023, which ended in a mistrial. The state then filed
an amended complaint, adding charges of first -degree criminal sexual conduct —use of
force causing personal injury; first -degree criminal sexual conduct —use of coercion
causing pe rsonal injury; and two counts of obstruction of justice. The state, however,
dropped the false -imprisonment charge. Although the amended complaint was filed on
February 16, 2023, the district court found that Keyes was not served with the amended
complaint until February 27, 2023, which was the morning of the commencement of the
second jury trial.
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Keyes objected to the amended complaint, arguing that he was not “given time to
prepare for the additional counts.” The district court dismissed the obstruc tion counts for
lack of probable cause, but otherwise overruled Keyes’s objection. Keyes also renewed
his cross-section motion, which was denied.
At trial, evidence was presented that Keyes had moved in with S.B. in August 2021.
Shortly thereafter, Ke yes began accusing S.B. of cheating on him and started calling her
names. According to S.B., the couple had an argument on January 30, 2022, where she felt
“threatened,” and told him that he could not stay with her anymore.
S.B. testified that, in the early morning hours of February 4, 2022, Keyes arrived at
her home and asked her if he could retrieve some of his belongings from the house. S.B.
acquiesced, and Keyes went to S.B.’s bedroom. But after waiting about 20 or 30 minutes,
and not hearing “any bags rattling,” S.B. went to the room to tell Keyes to leave.
S.B. testified that, as soon as she entered the bedroom, Keyes punched her in the
head, knocking her to floor and causing her to “see stars.” Keyes then sat on S.B.’s back
and repeatedly punched her in the head. According to S.B., she told Keyes, “You’re going
to kill me,” to which he responded, “That’s what I came here to do.” S.B. claimed that
Keyes then forced her to perform oral sex on him.
S.B. testified that, as she performed oral sex on Keyes, he punched her because she
“wasn’t doing it right.” S.B. claimed that the two then moved to the living room, where
Keyes continued punching her, and forced her to perform oral sex on him again. According
to S.B., the oral sex stopped when her children entered the room.
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S.B. cleaned herself up and drove two of her children to the bus stop. S.B. then
drove to the police station and reported the assault. She later went to the hospital, where
she described the assault to the examining nurse. The examining nurse noted that S.B. was
“very distraught,” and documented S.B.’s injuries, which included abrasions ; bruising on
both sides of her face; a 3.5-centimeter gash above her right eyebrow; blood coming out of
her ears; and severe swelling of her eyes. S.B. was also diagnosed with a ruptured eardrum,
and an oral swab collected from S.B. revealed a mixture of DNA from two or more people,
with a major profile that matched Keyes.
At the close of evidence, Keyes raised concerns that a specific-unanimity instruction
on the sexual -assault charges may be necessary. But after discussion, the parties agreed
that, if necessary, the issue would be revisited following closing arguments. During closing
arguments, defense counsel conceded that Keyes physically assaulted S.B., but argued that
S.B. fabricated the sexual -assault allegation. After closing arguments, Keyes did not
readdress the specific-unanimity-instruction issue, and no such instruction was provided.
The jury found Keyes guilty as charged. He was sentenced to 360 months in prison
for first-degree criminal sexual conduct—fear of great bodily harm. This appeal follows.
DECISION
I.
Keyes challenges the district court’s denial of his request for a specific unanimity
jury instruction on the criminal -sexual-conduct charges. District courts have broad
discretion regarding jury instructions, and we will not reverse a district court’s decision on
the matter unless there was an abuse of that discretion. State v. Taylor, 869 N.W.2d 1, 14-
5
15 (Minn. 2015). But when there is no objection to the district court’s jury instruction, we
review for plain error. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).
As an initial matter, the parties dispute the applicable standard of review. The state
asserts that, although Keyes discussed having a specific unanimity instruction, no ruling
was made on the issue because the parties agreed to revisit t he issue after closing
arguments. The state claims that, because Keyes never requested a unanimity instruction
after closing arguments, he has forfeited the issue. Thus, the state contends that this issue
should be reviewed for plain error. We agree.
“A defendant’s failure to propose specific jury instructions or to object to
instructions before they are given to the jury generally constitutes a waiver of the right to
appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). Here, the record reflects that,
because there was “testimony of two distinct acts of penetration,” defense counsel had
“concerns about the need for a specific unanimity instruction.” In response, the prosecutor
argued that a unanimity instruction was not necessary because Keyes ’s conduct was part
of a single behavioral incident. After discussion, defense counsel stat ed, “I think it’s
another - we’ll jump off that bridge if we get to it,” and the district court responded by
stating, “Okay. Fair enough. So perhaps enough said about that for now.” Keyes did not
readdress the issue after closing arguments or otherwise seek a unanimity instruction.
In his reply brief, Keyes argues that the plain-error standard is not applicable
because he “clearly and unequivocally requested the instruction,” the “district court ruled
that it would not give Keyes’ requested instruction,” and “Keyes accepted that ruling, . . .
but gave notice that he might renew the motion.” But this argument misconstrues the
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record. Defense counsel specifically stated on the record that she was “not specifically
asking for [a unanimity instruction].” Rather, the record indicates that defense counsel
merely expressed concern that one might be necessary depending on the state’s closing
arguments. And the record indicates that the district court never ruled on the issue. In fact,
defense counsel acknowledged that the issue would only need to be addressed “if we get
to it.” Therefore, the plain-error standard is applicable because Keyes never specifically
requested a specific-unanimity instruction, the district court never ruled on the issue, and
Keyes failed to request the instruction after closing arguments. See Cross, 577 N.W.2d at
726.
“In order to meet the plain error standard, a criminal defendant must sh ow that
(1) there was an error, (2) the error was plain, and (3) the error affected the defendant’s
substantial rights.” State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). “An error is plain
if it is ‘clear’ or ‘obvious,’ which is typically established ‘if the error contravenes case law,
a rule, or a standard of conduct.’” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017)
(quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006)). If a defendant satisfies the
first three elements of the plain-error standard, we will only exercise our discretion to grant
relief when the “failure to do so will cause the public to seriously question the fairness and
integrity of our judicial system.” Pulczinski v. State, 972 N.W.2d 347, 359 (Minn. 2022).
A unanimous verd ict is required in all criminal cases. Minn. R. Crim. P. 26.01,
subd. 1(5); State v. Pendleton, 725 N.W.2d 717, 730 (Minn. 2007). This means that a jury
must unanimously agree that the state proved each element of the offense beyond a
reasonable doubt. Pendleton, 725 N.W.2d at 730 -31. But a jury need not unanimously
7
agree on the facts underlying each element of an offense if different facts show “equivalent
blameworthiness or culpability.” Id. at 731; see also State v. Hager, 727 N.W.2d 668, 674
(Minn. App. 2007). A jury, therefore, must unanimously agree on which acts a defendant
committed if different acts could satisfy a single element. State v. Stempf , 627 N.W.2d
352, 355 (Minn. App. 2001) . However, unanimity is not required as to the “alternative
means or ways in which the crime can be committed.” Id. at 354 (quotation omitted).
Keyes argues that a unanimity instruction should have been given because the “state
introduced evidence of two instances of alleged penetration” and, without a unanimity
instruction, “the jury very likely rea ched non-unanimous verdicts on those counts.” To
support his position, Keyes relies on Stempf. In that case, the defendant was charged with
one count of possession of drugs, but the state alleged two distinct acts: (1) the defendant
possessed drugs found at his workplace and (2) the defendant possessed drugs found in a
truck. Id. at 357. This court concluded that the defendant was deprived of his right to a
unanimous verdict because the state did not elect which act of possession it relied on for
the conviction, and the jurors may have disagreed on which act of possession constituted
the crime. Id. at 358. This court further concluded that the two alleged acts lacked “unity
of time and place” and were “separate and distinct culpable acts, either one of which could
support a conviction.” Id. at 358-59. This court, therefore, reversed and remanded because
it was possible that the guilty verdict was not unanimous. Id. at 359.
This case is different from Stempf because, in that case, the district court refused to
give a specific unanimity instruction even though one was requested. Id. at 357-58. Here,
as noted above, Keyes never requested a specific unanimity instruction. Moreover, in
8
Stempf, there were two separate acts of possession that occurred at different times and
different places, and the defendant in Stempf offered different defenses for both. Thus, the
jury in Stempf could have reached different conclusions on each of those acts of possession.
Id. at 358; see State v. Dalbec , 789 N.W.2d 508, 512 (Minn. App. 2010) (discussing
Stempf), rev. denied (Minn. Dec. 22, 2010). In contrast, Keyes’s closing argument
demonstrates that he offered a single defense—that the state failed to prove that any sexual
assault occurred because S.B.’s story was not credible. See State v. Rucker , 752 N.W.2d
538, 548 (Minn. App. 2008) (noting that the defendant did not present separate defen ses
for each incident of alleged sexual abuse, rather he maintained that the abuse did not occur),
rev. denied (Minn. Sept. 23, 2008). And finally, in contrast to Stempf, Keyes’s actions
were not separated by time and place; the alleged acts of penetration all occurred at S.B.’s
house within, at most, 45 minutes of each other, and had the same criminal objective. As
such, Keyes’s actions were part of a single behavioral incident. See State v. Jones , 848
N.W.2d 528, 533 (Minn. 2014) (“Offenses are part of a single course of conduct 1 if the
offenses occurred at substantially the same time and place and were motiv ated by a single
criminal objective.” (footnote added)).
This case is more akin to State v. Infante, in which the defendant was found guilty
of second-degree assault. 796 N.W.2d 349, 352 -53 (Minn. App. 2011). On appeal, the
defendant argued that the district court erred by failing to instruct the jury that they must

1 “Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” State v. Mitchell, 881 N.W.2d 558, 563 n.2 (Minn. App. 2016),
rev. denied (Minn. Aug. 23, 2016).
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reach a unanimous decision as to which of his acts constituted the assault —putting the
small gun to the complainant’s head in the bedroom, or “methodically load[ing]” the larger
gun on the sofa two or three hours later. Id. at 355. This court held that a specific unanimity
instruction is unnecessary if the two acts that would support a conviction occurred at the
same place, involved the same victim, and took place over a short period of time. Id. at
357. The court determined that, because the two acts supporting an assault charge occurred
at the same cabin, involved a single victim, a nd were separated by a span of two to three
hours, they were part of a single behavioral incident. Id. at 352, 357; see also Dalbec, 789
N.W.2d at 512 (concluding that the district court did not plainly err by not providing a
unanimity instruction where the acts committed by the defendant spanned a period of time,
but all occurred at the same place and involved a single victim).
Here, as in Infante, because Keyes’s acts were part of a single behavioral incident,
a unanimity instruction was not required. See id. at 357; see also State v. Ihle, 640 N.W.2d
910, 919 (Minn. 2002) (concluding that, if multiple acts are a part of a single behavioral
incident, a specific -jury unanimity instruction is not required ). Therefore, the lack of a
unanimity instruction was not plain error.
II.
Keyes argues that he was denied his constitutional right to a trial by a jury that
reflects a fair cross -section of the community. We review de novo fair -cross-section
challenges. State v. Griffin , 846 N.W.2d 93, 99 (Minn. App. 2014), rev. denied (Minn.
Aug. 5, 2014).
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The United States and Minnesota Constitutions guarantee a criminal defendant the
right to a “jury venire” that “reflect[s] a fair cross-section of the community.” Id. at 99-
100 (quotation omitted); see also U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to . . . an impartial jury of the . . . district wherein the crime
shall have been committed . . . .”); Minn. Const. art. I, § 6 (same); Minn. R. Crim. P. 26.02,
subd. 1 (“The jury list must be compose d of persons randomly selected from a fair cross-
section of qualified county residents.”). But neither federal nor state constitutional law
“guarantee[s] a criminal defendant a jury of a particular composition or one that mirrors
the community.” State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994).
To make a prima facie showing that a jury venire did not reflect a fair cross-
section of the community, a defendant must show that (1) “the group allegedly excluded is
a ‘distinctive’ group in the community,” (2 ) “the group in question was not fairly
represented in the venire,” and (3) “the underrepresentation was the result of a ‘systematic’
exclusion of the group in question from the jury selection process.” Id. (quoting Duren v.
Missouri, 439 U.S. 357, 364-67 (1979)). If the defendant makes a prima facie showing of
a fair-cross-section violation, the state may rebut this showing by establishing that the jury-
selection process advanced a significant state interest. Hennepin County v. Perry , 561
N.W.2d 889, 896 (Minn. 1997).
The district court found that Keyes met his burden on the first two elements of the
test but failed to satisfy the third element. To satisfy the third element, Keyes was required
to show “that over a significant period of time—panel after panel, month after month—the
group of eligible jurors in question has been significantly underrepresented on the panels”
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due to their “systematic exclusion” from those panels. Griffin, 846 N.W.2d at 101
(quotation omitted). “Systematic exclusion” refers to “unfair or inadequate selection
procedures used by the state rather than, e.g., a higher percentage of ‘no shows’ on the part
of people belonging to the group in question.” Id. at 102 (quotation omitted). In other
words, systematic exclusion requires the defendant to show that the distinctive group at
issue has been consistently underrepresented in jury venires as a result of the procedures
used to identify and summon individuals for jury duty, see Williams, 525 N.W.2d at 542 ,
and that the und errepresentation could not be explained by “reasonable and plausible
alternative possibilities shown by the statistical data,” Griffin, 846 N.W.2d at 102.
In Minnesota, jurors must be selected “from the broadest possible cross section of
people in the area served by the court.” Minn. R. Gen. Prac. 801. Potential jurors are
summoned from a “source list,” which “must” include names from “[t]he voter registration
list and the driver’s license and ID cardholders list” for each respective county. Minn. R.
Gen. Prac. 806(b). Our supreme court has recognized that “[s]ince August of 1990, all
counties in the state are required to use driver’s license lists and state identification lists,
as well as voter registration lists, to compile their master juror lists.” Williams, 525 N.W.2d
at 541-42 (emphasis added).
Keyes argues that Ramsey County’s use of voter -registration and driver’s -license
information in its jury-selection process systematically excludes Black jurors because the
“numbers do not lie,” and the numb ers show that “[f]rom 2018 – 2021 . . . the number of
Black and African American potential jurors in Ramsey County was barely half or less
than half of what it should have been,” including his trial where only three out of 55
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potential jurors identified as Black. But the challenged process must be used when creating
a master jury list for each county. See id. And the supreme court has repeatedly held that
a “jury selection system that ‘used registered voters, driver’s licenses, and registered
Minnesota identification card holders’ d[oes] not systematically exclude people of color.”
Andersen v. State, 940 N.W.2d 172, 182 (Minn. 2020) (quoting State v. Roan, 532 N.W.2d
563, 569 (Minn. 1995)); see State v. Willis, 559 N.W.2d 693, 700 (Minn. 1997) (“ Even if
[the defendant] were to show the necessary underrepresentation, as a matter of law, he
could not demonstrate that the underrepresentation resulted from the state’s procedures
because . . . this court upheld the same Hennepin County selection process.”); State v. Gail,
713 N.W.2d 851, 861 -62 (Minn. 2006) (rejecting a challenge to a Hennepin County jury
venire because, although “only one person self -identified as African-American on the 50-
person venire,” the defendant “provided no evidence to satisfy the Williams standard,” and
even if the court assumed underrepresentation, the court previously upheld the selection
process, and the defendant “did not show that [Hennepin County’s] procedures [had]
changed in any material respect since Willis and Roan”).
The jury-selection process here is the same process that has repeatedly been upheld
by our supreme court. And Keyes has produced no evidence to factually support his
argument that the jury selection conducted at the time of his trial systematically excluded
Black people from juries. Accordingly, Keyes’s argument that the jury pool was not
representative of a fair cross-section of the community fails.

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III.
Keyes challenges the district court’s decision allowing the state to amend its
complaint on the morning of trial, arguing that the “court erred by accepting the amended
complaint because the state did not even ask for a continuance, and the relevant rule makes
doing so a prerequisite to the ability to proceed on an amended complaint.” We review a
district court’s decision to permit an amendment to the complaint for an abuse of discretion.
State v. Baxter, 686 N.W.2d 846, 850 (Minn. App. 2004).
Under Minn. R. Crim. P. 3.04, the district court “is relatively free to permit
amendments to charge additi onal offenses before trial is commenced, provided the
[district] court allows continuances where needed.” State v. Bluhm , 460 N.W.2d 22, 24
(Minn. 1990). Here, Keyes acknowledges that he would have objected to a continuance if
one had been requested by the prosecutor. Moreover, Keyes’s defense at trial was that the
sexual assault did not occur and S.B.’s testimony to the contrary was not credible. And he
does not explain on appeal how his defense would have been different had the new charges
been added earlier or omitted. Thus, Keyes is unable to show that the district court
improperly allowed the state to amend the complaint without asking for a continuance.
Keyes also argues that the district court abused its discretion by allowing the state
to amend the complaint because the motion to amend was “untimely and unfairly
prejudicial.” The state “acknowledges that it should have ensured that Keyes had been
served with the amended complaint at the same time it was filed, which was two weeks
before trial.” But the state argues that the district court correctly determined that the
“amendments were not overly prejudicial to Keyes.” We agree.
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The original complaint charged Keyes with third-degree assault—substantial bodily
harm, and first-degree criminal sexual conduct—fear of great bodily harm. The amended
complaint added charges of first -degree criminal sexual conduct —use of force causing
personal injury , a nd first -degree criminal sexual conduct —use of coercion causing
personal injury. As the state points out, “the added sexual assaults overlapped the existing
charges to a significant degree . . . and required no additional evidence or investigation”
because the new charges only added “elements of force, coercion, and personal injury.”
Moreover, as noted above, Keyes’s defense to the sexual-assault charges was that no sexual
assault occurred and that S.B. was not credible. The additional charges did not af fect this
defense. Finally, the evidence of force, coercion, and personal injury was abundant; S.B.
testified that Keyes beat her and forced her to perform oral sex on him in her bedroom and
in the living room. She also testified about her injuries, and multiple sources of evidence
were admitted corroborating S.B.’s testimony regarding her injuries. And the state
submitted DNA evidence, which further supported the sexual-assault allegations. As such,
Keyes cannot show he was prejudiced by the district c ourt’s decision to allow the state to
amend its complaint.2
Affirmed.

2 Keyes filed a pro se supplemental brief in which he recounts his version of various events
and generally argues that he is innocent. But Keyes makes no discernible claim of error
and offers neither legal argument nor supporting authority. Accordingly, w e decline to
consider Keyes’s pro se supplemental brief. See State v. Reek, 942 N.W.2d 148, 165 (Minn.
2020) (“We will not consider pro se claims on appeal that are unsupported by either
arguments or citations to legal authority.” (quotation omitted)).