Court of Appeals State of Minnesota, Respondent, vs. Ge Yang, Appellant. Gaïtas, J. Dissenting, Moore, III, McKeig, Hennesy, JJ.

1
STATE OF MINNESOTA
IN SUPREME COURT
A24-0228
Court of Appeals
State of Minnesota,
Respondent,
vs.
Ge Yang,
Appellant.
Gaïtas, J.
Dissenting, Moore, III, McKeig, Hennesy, JJ.
Filed: July 22, 2026
Office of Appellate Courts
________________________
Keith Ellison, Attorney General, Saint Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Adam Petras, Senior Assistant County
Attorney, N. Nate Summers, Assistant County Attorney, Minneapolis, Minnesota, for
respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Stacy L. Bettison, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.
________________________
S Y L L A B U S
Because the State charged one count of first-degree criminal sexual conduct but
presented evidence of more than one distinct act, each of which on its own could prove
the elements of the charged offense, the district court plainly erred by failing to provide a
specific-unanimity jury instruction.
Reversed and remanded.
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O P I N I O N
GAÏTAS, Justice
A jury found appellant Ge Yang guilty of first-degree criminal sexual conduct and
second-degree criminal sexual conduct for sexually abusing his minor stepdaughter. The
district court entered a conviction for first-degree criminal sexual conduct and sentenced
Yang to 144 months in prison. Yang appealed the conviction to the court of appeals,
arguing that because the State alleged that multiple penetrative acts occurred at different
times and in different locations, the district court plainly erred by failing to provide the
jury with a specific-unanimity instruction. The court of appeals, relying in part on its
decision in State v. Rucker, 752 N.W.2d 538 (Minn. App. 2008), rejected Yang’s
argument and affirmed. We granted Yang’s petition for further review.
Recently, in State v. Keyes, ___ N.W.3d ___, No. A23-1400, 2026 WL 2053029
(Minn. July 15, 2026), we established a framework for determining whether a specific-
unanimity jury instruction is required. Because the court of appeals’ decision in Rucker is
inconsistent with that framework, we overrule Rucker. Applying the framework from
Keyes here, we conclude that Yang was entitled to a specific-unanimity instruction. We
further conclude that the district court’s failure to provide such an instruction was plain
error that affected Yang’s substantial rights and that we must address the error to ensure
the fairness, integrity, and public reputation of judicial proceedings. Accordingly, we
reverse Yang’s conviction for first-degree criminal sexual conduct and remand for a new
trial on that charge.
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FACTS
In February 2022, 16-year-old A.K. disclosed to her high school advisor that her
stepfather, appellant Ge Yang, had sexually abused her. Based on the advisor’s mandatory
report, Minneapolis police opened an investigation into the allegations of sexual abuse.
In October 2022, respondent State of Minnesota charged Yang with two counts of
criminal sexual conduct. Count 1, first-degree criminal sexual conduct, was charged
under Minnesota Statutes section 609.342, subdivision 1(g) (2014), 1 which criminalizes
sexual penetration if “the actor has a significant relationship to the complainant and the
complainant was under 16 years of age at the time of the sexual penetration.” Count 2,
second-degree criminal sexual conduct, was charged under Minnesota Statutes
section 609.343, subdivision 1(h)(iii) (2014), which criminalizes “sexual contact with
another person” if “the actor has a significant relationship to the complainant, the
complainant was under 16 years of age at the time of the sexual contact,” and “the sexual
abuse involved multiple acts committed over an extended period of time.” Yang pleaded
not guilty to both charges, and a jury trial was held in August 2023.
The State’s Trial Evidence
During the State’s case in chief, the jury heard the testimony of A.K., as well as
the testimony of A.K.’s mother, aunt, uncle, and high school advisor. A Minneapolis

1 The alleged conduct in this case occurred in 2015 and early 2016. At that time, the
2014 version of Minnesota Statutes was in effect. When discussing the alleged offenses
here, we cite to the statutes in effect in 2014. In 2019, the Legislature amended
Minnesota Statutes section 609.342, subdivision 1(g), by replacing “the sexual
penetration” with “the act.” Act of May 30, 2019, ch. 5, art. 4, § 5, 2019 Minn. Laws 947,
986. This amendment does not affect our analysis.
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police sergeant, a child protection investigator, and a forensic interviewer also
testified.Those witnesses testified as follows.
In 2013, A.K.’s mother began dating Yang. Around May 2015, A.K. and her
mother moved into Yang’s apartment. A few months later, A.K.’s mother and Yang
married. At that time, A.K. was around nine years old. A.K. testified that while she lived
in Yang’s apartment, Yang inappropriately touched her. He would grab her butt and reach
under her shirt to squeeze her breasts. A.K. does not remember when the inappropriate
touching began or how many times it occurred, but she testified that it happened “a lot.”
A.K. also testified to sexual abuse that specifically began in the summer of 2015.
That summer, A.K. stayed at her grandparents’ home because both her mother and Yang
worked during the day. A.K. testified that Yang would pick her up from her grandparents’
home to drive her to dance classes once a week. Before dance practice, Yang would take
her to his apartment, where he would be alone with A.K. and would sexually abuse her.
A.K. testified that the abuse primarily took place in two locations in the apartment:
A.K.’s bedroom and Yang’s bedroom. A.K. testified that when Yang and A.K. were in
A.K.’s bedroom at the apartment, Yang would “tell [A.K.] to take off [her] clothes so
[Yang] could touch [A.K.’s] breast and vagina. And [Yang] would go down and lick
[A.K.’s] vagina.” He would also “take [A.K.’s] hand and put it in his pants to his penis.
And he would force [A.K.’s] hand to go up and down so that he was able to, like, relieve
himself.” A.K. stated that this happened “[m]ore than one time” and would occur during
the same times that Yang made her take her clothes off and lay down on the bed.
Additionally, A.K. testified that Yang sexually abused her in Yang’s bedroom of the
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apartment. While in Yang’s bedroom, Yang “would sit down on the bed and tell [A.K.] to
put [her] mouth on his penis so that [she] was able to suck on his penis.” A.K. testified
that the abuse continued for the two years that she attended dance class.
In January 2016, the family moved from the apartment to a townhome in
Minneapolis. A.K. testified that, while living at the townhome, Yang continued to touch
A.K.’s breasts and butt but no longer made A.K. do anything to his body and no longer
made her lay down naked. A.K. testified that one day, while they were living in the
townhome, she was sick with a fever and had to stay home from school. She stated that
Yang “told [her] to take off [her] clothes so that he could wash [her]. He was very
focused on washing [A.K.’s] vagina.”
A.K. testified that she told her aunt that Yang was touching her inappropriately.
The aunt testified about such a conversation, which she said took place in February 2015.
According to the aunt, she affirmatively raised the issue of abuse with A.K., telling A.K.
that if Yang ever did anything inappropriate, A.K. should report it to her. During this
conversation, A.K. began crying. But the aunt did not pursue the issue.
Afterwards, the aunt bought A.K. a cell phone so that A.K. could contact her if
anything were to happen with Yang. But the aunt did not bring up the subject again or tell
anyone about her 2015 conversation with A.K.
In January 2022, A.K. told her mother and other family members that Yang had
sexually abused her.
Although A.K.’s mother did not support the State’s case against Yang, she was
called as a witness during the State’s case in chief. The mother testified that A.K. accused
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Yang of sexually abusing A.K. in January of 2022. According to the mother, when she
asked A.K. for details, A.K. did not answer, and instead, put her head into her hands and
cried. The mother testified that she did not believe A.K.’s allegations. She also testified
that, contrary to A.K.’s testimony, she and Yang would pick A.K. up for dance class
together. The mother testified that Yang would pick her up from work at 5:00 p.m., they
would pick up A.K. from her grandparents’ home together, and she personally would take
A.K. into the class.
A.K.’s uncle also testified on behalf of the State. He testified that A.K. told him
about the sexual abuse a few days after A.K. reported it to her mother. According to
A.K.’s uncle, after disclosing the sexual abuse, A.K. moved out of the townhome and
moved in with the uncle and grandparents. A.K.’s uncle testified that A.K. continued to
live with him at the time of the trial.
One month after revealing the sexual abuse to her family, A.K. disclosed it to her
high school advisor. The high school advisor testified that, as a mandated reporter, he
reported A.K.’s allegations to child protection.
As a result of the advisor’s mandated report, a child protection investigator for
Hennepin County interviewed A.K. During the interview, A.K. disclosed that she had
been sexually abused by Yang. The investigator contacted the police department and
referred A.K. to a forensic interviewer. A.K. described details of the sexual abuse during
a forensic interview the next day.
At trial, the State admitted a video of A.K.’s forensic interview as a trial exhibit,
and this exhibit was played for the jury. The interview was generally consistent with
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A.K.’s trial testimony but contained more details about the alleged abuse. During the
interview, A.K. recounted an incident that she did not describe during her trial testimony:
A.K. told the forensic interviewer that Yang had showed A.K. a video of Yang and A.K.’s
mother engaging in sexual activity. A.K.’s aunt told the jury that A.K. sent her a message
over a social media platform about being shown the video of Yang and A.K.’s mother
engaging in sexual activity. The aunt testified that she no longer had access to A.K.’s
message, however, because A.K. deleted it.
A.K. also underwent a physical examination. The parties stipulated that the doctor
did not find any physical injuries and that A.K. disclosed sexual abuse consistent with her
forensic interview during the examination.
Yang’s Trial Evidence
During his testimony at trial, Yang denied all of A.K.’s allegations. He told the
jury that he was never alone with A.K. because he “didn’t know her that much.” Yang
denied ever taking A.K. to dance class alone, testifying that “[i]t was always either me
and her mom or just her mom” that picked her up for class. He also testified that he never
bathed A.K., but recalled one instance when A.K. was sick at home with a fever.
According to Yang, he called A.K.’s mom during this incident and put a cold cloth on
A.K.’s head and neck. He testified that A.K. was fully clothed, and he denied touching
any part of her body other than her head and neck. Yang also denied purposely showing
A.K. the video of his sexual encounter with A.K.’s mother. But he acknowledged that
A.K. accidentally saw the video on his cell phone when she was using his phone to access
the internet.
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A.K.’s grandmother also testified on behalf of the defense. She testified that Yang
never picked up A.K. for dance class by himself. The grandmother also recalled an
instance when she brought her family together to pray to “get rid of this case” against
Yang. She recalled that following the prayer, A.K.’s uncle stated that A.K. could not
“erase” the case without getting into legal trouble. The grandmother also testified that
A.K.’s uncle told her that without “these issues,” A.K. would not have money to attend
college. A.K. received college tuition assistance based on her status as a foster child.
Jury Instructions
After the defense rested, the district court reviewed its proposed jury instructions
with the attorneys. Yang’s attorney did not request a specific-unanimity instruction during
this discussion or at any other time.
The jury was provided with a general-unanimity instruction, which advised that
the jury’s verdict was to be unanimous. But the jury was not instructed on specific
unanimity and the jurors were not told that they were required to unanimously agree as to
which act had been proven beyond a reasonable doubt.
Closing Arguments
During closing arguments, the prosecutor focused on the consistency of A.K.’s
story across each of the separate disclosures to her family members, to the forensic
interviewer, and in her own testimony. The prosecutor’s closing argument referenced
multiple alleged instances of penetration by Yang. The prosecutor did not focus on
specific instances of penetration, and acknowledged that certain details, like the timing of
the abuse, were unclear:
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Maybe he did pick her up from dance on occasion. And maybe he did abuse
her then. Maybe he was abusing her when Mom was at work and he was
home with her after school. [A.K.] wasn’t quite clear. Was it in the evening?
Was it the morning? Maybe it was both. Maybe she doesn’t remember
because sometimes it would happen in the morning, and maybe sometimes it
did happen in the evening. She told you—all this happened a lot.
Yang’s trial attorney argued that A.K. had fabricated her allegations. The defense
highlighted inconsistencies in A.K.’s testimony and emphasized the testimony of Yang,
A.K.’s mother, and A.K.’s grandmother that Yang never took A.K. to dance class alone.
Verdicts, Sentencing, and Appeal
Following deliberations, the jury found Yang guilty of both counts of criminal
sexual conduct. The district court entered a conviction for first-degree criminal sexual
conduct and sentenced Yang to 144 months in prison for that offense.
Yang appealed to the court of appeals, arguing that the district court plainly erred
by failing to provide the jury with a specific-unanimity instruction for the offense of
first-degree criminal sexual conduct.2 The court of appeals affirmed Yang’s conviction.
We granted Yang’s petition for review.
ANALYSIS
Yang argues that he was entitled to a specific-unanimity instruction for the offense
of first-degree criminal sexual conduct, which would have required the jury to
unanimously agree on the specific penetrative act that the State proved beyond a
reasonable doubt. He acknowledges that he did not request a specific-unanimity

2 Yang did not challenge the district court’s jury instructions for the second-degree
criminal sexual conduct offense, which involved a count alleging multiple acts committed
over an extended period of time. See Minn. Stat. § 609.343, subd. 1(h)(iii).
10
instruction at trial. But he contends that the district court’s failure to provide such an
instruction was plain error.
In State v. Keyes, ___ N.W.3d ___, 2026 WL 2053029, at *15–16, we recently
announced a framework for determining whether a specific-unanimity jury instruction is
required. Applying that framework here, we conclude that Yang was entitled to a specific-
unanimity instruction and that the district court’s failure to provide one was plain error
under Keyes. In doing so, we overrule the court of appeals’ decision in State v. Rucker,
752 N.W.2d 538 (Minn. App. 2008), as inconsistent with Keyes. Because we also
determine that the district court’s error in failing to provide a specific-unanimity jury
instruction prejudiced Yang’s substantial rights and that we should address the error to
ensure the fairness, integrity, and public reputation of judicial proceedings, we conclude
that Yang is entitled to a new trial for the charge of first-degree criminal sexual conduct.
We begin our analysis by examining the right to jury unanimity and by applying
our Keyes framework to the facts presented here.
A.
The right to jury unanimity is derived from the due process requirement that the
government must present proof beyond a reasonable doubt of each element of a charged
offense in order to convict the accused. See In re Winship, 397 U.S. 358, 364 (1970)
(stating that due process requires “proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which [the defendant] is charged”); see also Ramos
v. Louisiana, 590 U.S. 83, 93 (2020) (holding that the federal constitutional right to a
unanimous jury verdict is incorporated against the states through the Fourteenth
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Amendment). Correspondingly, a jury must unanimously agree on the ultimate verdict.
Additionally, a jury must agree that the government’s evidence proved each element of
the charged offense beyond a reasonable doubt. Richardson v. United States, 526 U.S.
813, 817 (1999). But a jury need not agree as to the means of satisfying an element of an
offense. See id. (stating that a jury need not be unanimous as to “which of several
possible sets of underlying brute facts make up a particular element,” including, for
example, “which of several possible means the defendant used to commit an element of
the crime”).
When the State charges one count of criminal conduct and presents evidence of a
distinct act to prove the offense, application of these rules is straightforward: to find the
defendant guilty, the jury must unanimously agree that each element of the offense was
proven beyond a reasonable doubt and must unanimously agree on a guilty verdict. This
requirement is referred to as general unanimity. But when the State charges one count of
criminal conduct and presents evidence of more than one distinct act, each of which on its
own could prove the elements of the charged offense, there is an additional unanimity
requirement. The jury must also unanimously agree on the distinct act that proves the
elements of the charged offense. Keyes, ___ N.W.3d ___, 2026 WL 2053029, at *13. This
requirement is referred to as specific unanimity.
In Keyes, we addressed when a district court in a Minnesota state court
prosecution must instruct a jury as to the additional requirement for specific unanimity.
We held that “when the State charges one count of a criminal offense but presents
evidence of more than one distinct act, each of which on its own could satisfy the
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elements of the charged offense, a defendant is entitled to a specific-unanimity jury
instruction.” Id. at *13. Such an instruction directs a jury to unanimously agree “as to the
specific act that proves the elements of the charged offense.” Id.
Our decision in Keyes articulated a framework for courts to use in determining
whether a specific-unanimity instruction is required. Id. at *15–16. Under this
framework, a court must look to the statute defining the offense to identify the elements
of the offense. Id. at *15. A court should distinguish any statutory means for committing
the elements from the elements themselves. Id. Once the elements have been identified
from the statutory language, a court should move to the second step of the analysis. Id.
The second step of the analysis “requires a court to consider the facts that the State
alleged at trial to prove a violation of the statute.” Id. A court must ask “whether the State
alleged a single act to satisfy the elements of the statute or multiple distinct acts, each of
which on its own could satisfy the elements of the statute.” Id. If the evidence included
more than one distinct act, each of which on its own could independently satisfy the
elements of the statute, a jury must unanimously agree on which distinct act the
defendant committed. Id. A specific-unanimity instruction is required when the State has
alleged more than one such act and has charged just one count. Id.
Applying the Keyes framework to the facts of this case, it is evident that Yang was
entitled to a specific-unanimity instruction for the single charged count of first-degree
criminal sexual conduct. First, we identify the elements of the charged offense. The State
charged Yang with one count of first-degree criminal sexual conduct under Minnesota
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Statutes section 609.342, subdivision 1(g).3 That statute provides that a defendant is
guilty of first-degree criminal sexual conduct if the defendant “engages in sexual
penetration” with a complainant and an additional circumstance is present. Id., subd. 1.
Here, the additional circumstance is that “the actor has a significant relationship to the
complainant and the complainant was under 16 years of age at the time of the sexual
penetration.” Id., subd. 1(g). Sexual penetration, as relevant here, is defined as “any of
the following acts,” including “sexual intercourse, cunnilingus, fellatio, or anal
intercourse.” Minn. Stat. § 609.341, subd. 12 (2014). Based on the plain language of
section 609.342, subdivision 1(g), the elements of that offense are: (1) the defendant
engaged in sexual penetration with the complainant, (2) the defendant had a significant
relationship to the complainant, and (3) the complainant was under 16 years of age at the
time of the act.
Second, under the Keyes framework, we consider the facts that the State alleged
during Yang’s trial to determine whether there was one act or multiple distinct acts
alleged, each of which on its own could independently prove the elements of the statute.
At Yang’s trial, A.K. testified that when she was under 16 years old, Yang—who was her
stepfather—committed multiple acts of cunnilingus and fellatio, which occurred on
different days, in different locations, over a period of two years. A.K. testified that Yang

3 Yang was also found guilty of one count of second-degree criminal sexual
conduct, which concerned multiple acts committed over an extended period of time.
Minn. Stat. § 609.343, subd. 1(h)(iii). He has not challenged the district court’s jury
instructions for the second-degree criminal sexual conduct offense, and the jury’s guilty
verdict for that offense is not before us.
14
licked her vagina “[m]ore than one time” in her bedroom during that two-year period.
And she testified that, on different occasions, Yang made her suck his penis in his
bedroom. Given A.K.’s testimony, we conclude that the State alleged multiple distinct
acts of sexual penetration, each of which on its own could have proved the elements of
first-degree criminal sexual conduct.4
Because the State charged Yang with one count of first-degree criminal sexual
conduct but alleged multiple distinct acts, each of which on its own could have proved
the elements of the charged offense, Yang was entitled to a specific-unanimity jury
instruction.
B.
The State, which did not have the benefit of our Keyes decision for briefing or oral
argument, argues that Yang was not entitled to a specific-unanimity instruction. We now
address the State’s arguments.
The State contends that because A.K. alleged that Yang committed two different
forms of penetration—fellatio while in Yang’s bedroom and cunnilingus while in A.K.’s
bedroom—this case involves different “means” and not elements. But the State’s
argument that this is a “means” case misapprehends the elements-versus-means
distinction that the United States Supreme Court established in Schad v. Arizona, 501 U.S. 624 (1991), abrogated in part on other grounds by Ramos v. Louisiana,

4 Although the dissent suggests that A.K.’s testimony alleged just two acts of sexual
penetration—one act of cunnilingus and one act of fellatio—we read the record
differently. A.K.’s testimony indicated that there were multiple acts of cunnilingus and
multiple acts of fellatio that occurred over the course of two years.
15
590 U.S. 83 (2020), and Richardson, 526 U.S. 813, and that we discussed in Keyes. It is
true that A.K. testified about different forms of sexual penetration. But A.K. testified
about multiple distinct instances of sexual penetration that occurred on different dates and
in different places. Each of those instances, on its own, could have proved the elements of
the charged first-degree criminal sexual conduct offense. Because the State charged a
single offense and alleged multiple distinct acts that individually could have proved the
elements of that offense, the jury was required to unanimously agree as to which act was
proven. Accordingly, a specific-unanimity instruction was required.
The State also argues that A.K.’s testimony did not allege distinct acts, but rather
“examples” of the abuse she experienced. In making this argument, the State relies on the
court of appeals’ decision in Rucker, which holds that specific unanimity is not required
for “examples” of an act. 752 N.W.2d at 548. In Rucker, the defendant was convicted of
criminal sexual conduct for the sexual abuse of two minors. Id. at 544–45. The State
alleged multiple instances of sexual contact over a two-year period, occurring in different
locations and on different dates. Id. at 543, 548. The court of appeals concluded that a
specific-unanimity instruction was not required. Id. at 549. In doing so, the court assessed
whether the instances recounted by the victims constituted “distinct allegations” or mere
“examples” of abuse:
[T]he prosecution here did not emphasize certain incidents, distinguish as to
the proof of some incidents compared to others, or encourage the jury to find
certain incidents were more likely to have occurred than other incidents, and
appellant did not present separate defenses for each incident of alleged sexual
abuse; rather, he simply maintained throughout his trial that he never had
sexual contact with either child-victim.
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Id. at 548. Thus, the court concluded, the victim’s recollections “served as examples of
appellant’s conduct and not distinct allegations of sexual abuse” and specific unanimity
was not required. Id.
Analogizing this case to Rucker, the State points to A.K.’s early disclosures to her
aunt and mother, none of which were “tied to a specific time or place.” Although A.K.’s
later description of the abuse to the forensic interviewer included more specific details,
according to the State, A.K.’s allegations only recounted “many episodes and general
themes of the sexual abuse she suffered years ago.” The State also points out that it did
not emphasize one instance of penetration or encourage the jury to find that certain
incidents were more likely to have occurred than others. And it observes that Yang
similarly denied all the allegations, focusing instead on discrediting A.K.’s testimony.
Given these circumstances, the State urges us to apply the reasoning of Rucker and to
conclude that no specific-unanimity instruction was required here.
However, the court of appeals’ decision in Rucker is at odds with our holding in
Keyes. Keyes makes clear that when multiple distinct acts are alleged, each of which on
its own could prove the elements of the charged offense, a jury must unanimously agree
on which act the defendant committed. According to Keyes, a specific-unanimity
instruction is required under these circumstances. Indeed, generalized allegations—or
“examples” of a criminal offense—increase the risk that jurors will not agree as to the
distinct act or acts proven, violating the specific-unanimity right. When the State presents
evidence of multiple distinct acts, each of which on its own could prove a single charged
offense, there is a danger that a jury will not focus on whether the evidence proved any
17
particular act but will instead return a guilty verdict because the allegation of multiple
acts suggests that the defendant did “something.” See Richardson, 526 U.S. at 819
(stating that, by alleging multiple acts, the government “significantly aggravates the risk”
that jurors will fail to focus on specific factual details and instead conclude “that where
there is smoke there must be fire”). Because Rucker is inconsistent with our holding in
Keyes, we overrule it.
We are mindful of the challenges of prosecuting criminal sexual conduct cases,
particularly cases involving child victims who were abused over a period of time. In
those cases of persistent abuse, the allegations often do take the form of “examples” of
abuse. We observe that Minnesota law includes some charging options for such cases. For
example, the State can prosecute a defendant for first-degree criminal sexual conduct
when the defendant “has a significant relationship to the complainant” and “the sexual
abuse involved multiple acts committed over an extended period of time.” Minn. Stat.
§ 609.342, subd. 1a(h)(iii) (formerly Minn. Stat. § 609.342, subd. 1(h)(iii) (2014)).5 But

5 In this case, the jury found Yang guilty of second-degree criminal sexual conduct
charged under a similar provision that criminalizes “sexual contact” if “the actor has a
significant relationship to the complainant, the complainant was under 16 years of age at
the time of the sexual contact,” and “the sexual abuse involved multiple acts committed
over an extended period of time.” Minn. Stat. § 609.343, subd. 1(h)(iii).
The dissent asserts that there is “tension between [the Keyes] bright-line rule and
the constitutionality of such a course-of-conduct charge.” We do not decide here whether
the “multiple acts committed over an extended period of time” in section 609.643,
subdivision 1(h)(iii) (2014), are individual elements of the offense. But in considering a
similar statute, we held that specific unanimity was not required as to the acts underlying
a course-of-conduct element. See State v. Hayes, 831 N.W.2d 546, 556 (Minn. 2013)
(holding that a jury is not required to unanimously agree on which acts comprised the
“past pattern of domestic abuse” element of first-degree domestic abuse murder).
18
when, as here, the State opts to charge a single count of an offense that requires proof of a
distinct act, and the State alleges multiple distinct acts, each of which on its own could
prove the elements of the offense, specific unanimity is required. And when specific
unanimity is required, the district court must instruct the jury on that requirement.6
C.
Having determined that the district court erred by failing to provide Yang’s jury
with a specific-unanimity instruction, we next consider whether we may correct that
error. Because this issue was not preserved for appeal, we review it for plain error. See
State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (holding that “[a] defendant’s failure
to propose specific jury instructions or to object to instructions before they are given”
forfeits the issue on appeal unless there is plain error). To obtain relief for plain error, an
“appellant must show that there was (1) an error; (2) that is plain; and (3) the error must
affect substantial rights.” State v. Kelley, 855 N.W.2d 269, 273–74 (Minn. 2014). When
the appellant satisfies these requirements, the appellate court may correct the error only
when it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022).
An error is plain if it is “clear or obvious, usually shown by an error that
contravened case law, rules, or a standard of conduct.” State v. Pendleton, 759 N.W.2d

6 Contrary to the assertion of our dissenting colleagues, we do not conclude that the
State commits a “per se constitutional violation” by charging a single count and alleging
multiple distinct acts to satisfy that count. We hold only that specific unanimity is
required under those circumstances. To ensure specific unanimity, a district court must
provide jurors with a brief instruction explaining the requirement.
19
900, 913 (Minn. 2009). In determining whether an error is plain, this “court examines the
law in existence at the time of appellate review, not the law in existence at the time of the
district court’s error.” Kelley, 855 N.W.2d at 277.
We begin by considering whether the error—the district court’s failure to provide a
specific-unanimity instruction—was plain. Although our Keyes decision did not exist
when the district court instructed Yang’s jury, it was the law at the time of appellate
review. Under Keyes, the district court should have provided a specific-unanimity jury
instruction to Yang’s jury on the offense of first-degree criminal sexual conduct. Because
the district court did not provide this instruction, there is error that is plain.
Next, we consider whether the error affected Yang’s substantial rights. An error
affects a defendant’s substantial rights if it “was prejudicial and affected the outcome of
the case.” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An erroneous jury
instruction was prejudicial if there is a reasonable likelihood that the lack of the
instruction had a significant effect on the verdict. Cf. id. (“We have defined plain error as
prejudicial if there is a reasonable likelihood that the giving of the instruction in question
would have had a significant effect on the verdict of the jury.” (citation omitted) (internal
quotation marks omitted)). In the specific-unanimity context, we have stated that a
district court’s failure to provide a specific-unanimity instruction was prejudicial if it is
“reasonably likely” that the lack of instruction resulted in a non-unanimous verdict.
State v. Wenthe, 865 N.W.2d 293, 300–01 (Minn. 2015) (determining that the defendant
was not prejudiced because it was not reasonably likely that the jury was split on which
acts they believed satisfied the element).
20
Here, it is reasonably likely that the lack of a specific-unanimity instruction
resulted in a non-unanimous verdict. The prosecutor acknowledged, and perhaps even
capitalized on, the vagueness of A.K.’s allegations, stating, for example: “Maybe [Yang]
did pick her up from dance on occasion. And maybe he did abuse her then. Maybe he was
abusing her when Mom was at work and he was home with her after school.” Given the
multiple acts alleged and the vagueness of A.K.’s allegations, it is reasonably possible
that the jurors were split on the acts that they believed had been proven. For example, six
jurors could have believed that a penetrative act occurred when Yang picked up A.K.
from dance class, and six jurors could have believed that a penetrative act occurred at
some other time.
More likely is the possibility that the jury never discussed the factual details of
each alleged penetrative act, thus allowing the jury to avoid confronting “wide
disagreement among the jurors about just what the defendant did, or did not, do.”
Richardson, 526 U.S. at 819. After all, the trial record reflects many alleged acts, the
details of which were often vague, committed on unspecified dates, over a period of
potentially two years. Some of the acts were alleged by A.K. at trial, some were alleged
by other witnesses, and still other acts were alleged by A.K. only during an out-of-court
video-recorded interview that was introduced as evidence at trial. Given these
circumstances, there is a real possibility that, without a specific-unanimity instruction, the
jury may have instead decided that “where there is smoke there must be fire.” Id. We thus
conclude that the lack of a specific-unanimity instruction had a significant effect on the
verdict, and that the error was prejudicial, affecting Yang’s substantial rights.
21
Finally, we assess whether this court should address the error to ensure the
fairness, integrity, and public reputation of judicial proceedings. Pulczinski, 972 N.W.2d
at 356. Because the error was serious, implicating Yang’s right to a unanimous jury
verdict, failing to correct the error would “caus[e] the public to seriously question
whether our court system has integrity and generally offers accused persons a fair trial.”
Id.; see also State v. Portillo, 998 N.W.2d 242, 256 (Minn. 2023) (addressing plain error
when an error strikes at “bedrock” principles that are foundational to the administration
of Minnesota’s criminal law). It follows that addressing the error is necessary to ensure
the fairness, integrity, and public reputation of judicial proceedings. See Portillo, 998
N.W.2d at 256 (addressing plain error where there was a reasonable likelihood that the
error affected the outcome of the defendant’s trial, and thus, affirming the defendant’s
conviction would “adversely affect the public’s confidence in the fairness and integrity of
judicial proceedings” (citation omitted) (internal quotation marks omitted)).
We conclude that the district court’s failure to provide a specific-unanimity jury
instruction was plain error affecting Yang’s substantial rights and is the type of error that
this court should address. Accordingly, we reverse Yang’s conviction for first-degree
criminal sexual conduct and remand for a new trial on that offense.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the district court for further proceedings consistent with this opinion.
Reversed and remanded.
D-1
D I S S E N T
MOORE, III, Justice (dissenting).
By broadly applying the rigid framework announced in State v. Keyes, ___ N.W.3d
___, No. A23-1400, 2026 WL 2053029 (Minn. Jul. 15, 2026), the court creates
uncertainty for district courts and risks unpredictable, inconsistent, and unjust outcomes
in criminal sexual conduct cases in two respects. First, it concludes that the district court
plainly erred by failing to sua sponte instruct the jury to unanimously identify the specific
acts of sexual penetration supporting appellant Ge Yang’s conviction, even though he
never raised a specific-unanimity issue at trial. Second, it discards State v. Rucker, 752
N.W.2d 538 (Minn. App. 2008), which until today provided a workable—if imperfect—
framework for ensuring jury unanimity in these most sensitive cases involving ongoing
sexual abuse. Because I continue to disagree with the court’s reasoning in Keyes and have
deep concerns with the application of the test it adopts, I respectfully dissent from the
court’s opinion reversing Yang’s conviction for first-degree criminal sexual conduct.
In reversing Yang’s conviction, the court seems to conclude that the State’s
charging or presenting evidence of multiple acts in a single count is a per se constitutional
violation that can be cured only by instructing the jury that they must specifically agree
on which act(s) the defendant committed before returning a guilty verdict. But as I
explained in my Keyes dissent, the United States Supreme Court’s decisions in Schad v.
Arizona, 501 U.S. 624 (1991), abrogated in part on other grounds by Ramos v.
Louisiana, 590 U.S. 83 (2020), and Richardson v. United States, 526 U.S. 813 (1999), do
not compel this result because they considered a different issue than one presented here.
D-2
Unanimity as to an element—that is, which of several possible alternative factual
circumstances may constitute an element of an offense—is different from unanimity as to
multiple instances of conduct which could satisfy that element (a so-called “duplicitous”
charge). As nearly all federal and state supreme court cases to have considered the issue
agree, determining that a charge is duplicitous is the beginning of the constitutional
analysis, not the end. Properly applied, the theoretical possibility that jurors might
disagree as to the facts constituting an element based on the nature of the charge itself is
only one factor in this analysis. We must also consider the actual risk that a general
verdict of guilty would conceal a finding of guilty as to one act but not another
considering the actual evidence presented and the State’s characterization of the acts at
trial, as well as the effects of the State’s charging decision on notice to the defendant and
appropriate sentencing.
In my view, the charge at issue does not implicate the due process concerns
underlying the duplicity doctrine as other courts have developed it. The facts here present
a closer call than those in Keyes, but here, too, I believe there was no genuine risk of a
non-unanimous verdict as to the penetration charge for several fact-specific reasons.
Moreover, defense counsel chose not to request a specific-unanimity instruction and
instead strategically relied on A.K.’s allegations of multiple acts to challenge A.K.’s
credibility during closing argument. And unlike in Keyes, the district court could have
justifiably sentenced Yang separately for each violation under our sentencing law had the
State elected to charge them individually. For these same reasons, the interests of justice
and public perception of the fairness of judicial proceedings do not compel us to reverse
D-3
Yang’s conviction on the first-degree count on plain-error review.1 Finally, my concerns
with the impact of the court’s approach on cases depending on the testimony of
traumatized witnesses only multiply when those cases involve sexual abuse of minors.
See Keyes, ___ N.W.3d ___, 2026 WL 2053029, at *31–33.
For these reasons, I respectfully dissent.
A.
Before turning to this case, I briefly note several points discussed in my Keyes
dissent. Schad expressly warns of “the impracticability of trying to derive any single test
for the level of definitional and verdict specificity permitted by the Constitution”—a
caution the court does not heed. 501 U.S. at 637. Likewise, Richardson did not purport to
develop such a test—it confirmed Schad’s core proposition: the due process clause limits
the State’s power to define criminal offenses such that the statutory alternatives for
satisfying a particular element vary so dramatically that they cannot reasonably be
considered alternative means. 526 U.S. at 820. These offenses would risk “serious
unfairness” to the defendant because charging a single count in the absence of a specific-
unanimity instruction might conceal “wide disagreement among the jurors about just
what the defendant did, or did not, do.” Id. at 820. At the same time, these cases only
consider “alternative statutory means for committing one offense” and “do not …
control” cases involving “distinct instances of the same crime which could have resulted

1 Whether or not defense counsel intended it, the course of this case illustrates the
“double-or-nothing” concern I described in my Keyes opinion, ___ N.W.3d ___, 2026
WL 2053029, at *19 n.1, as explained below.
D-4
in potentially multiple convictions.” United States v. Correa-Ventura, 6 F.3d 1070, 1080–
81 (5th Cir. 1993).
The issue of unanimity as to an element of the offense “implicates different
concerns” than a duplicitous charge. State v. Douglas C., 285 A.3d 1067, 1082–83 (Conn.
2022); see also United States v. Newell, 658 F.3d 1, 21 (1st Cir. 2011) (differentiating
unanimity concerns based on elements of the offense from those based on the “structure
of [an] indictment” that “bundle[s] multiple discrete violations of the statute under single
counts”). In the former situation, as in Schad and Richardson, the issue is whether the
statutory language reasonably contemplates alternative means of satisfying a single
element, or in fact creates multiple alternative or distinct elements. In the latter, the issue
is whether the defendant may be convicted on a single count based on evidence of
multiple, separate violations of the statute. Schad and Richardson simply did not address
the latter issue. Yet the court treats these cases as declaring a duplicitous charge per se
unconstitutional absent a specific-unanimity instruction, effectively finding plain error
where precedent does not require it and sowing uncertainty in the trial courts.
By my reading, few, if any, federal courts of appeals and high courts of other states
have adopted the court’s approach in Keyes. These other courts appropriately hold that a
duplicitous charge is not “presumptively invalid”; rather, constitutional concerns arise
only when the charge “affects [the duplicity] doctrine’s underlying policy concerns.” E.g.,
United States v. Olmeda, 461 F.3d 271, 281 (2d Cir. 2006); see also Keyes, ___ N.W.3d
___, 2026 WL 2053029, at *24 (collecting cases). On the other hand, “an assessment of
such policy considerations is critical to any duplicity analysis, for fundamental fairness
D-5
and due process of law may prohibit combining what could be several independent
charges into a single count, even if the text of a particular statute allows it.” United States
v. Root, 585 F.3d 145, 154 (3d Cir. 2009) (emphasis added). Thus, “ ‘[i]f the doctrine of
duplicity is to be more than an exercise in mere formalism, it must be invoked only
when’ ” the nature of the specific charge at issue implicates “ ‘policy considerations’ that
underlie that doctrine.” United States v. Margiotta, 646 F.2d 729, 732–33 (2d Cir. 1981)
(alteration in original) (quoting United States v. Murray, 618 F.2d 892, 897 (2d Cir.
1980)).
Against this backdrop, two aspects of the court’s analysis strike me as particularly
puzzling. First, the two acts of sexual penetration alleged here for purposes of first-degree
criminal sexual conduct were committed through different means. See Minn. Stat.
§ 609.341, subd. 12(1) (defining both “fellatio” and “cunnilingus” as forms of sexual
penetration). The State therefore mistakenly relies on Richardson to argue that Yang was
not entitled to a specific-unanimity instruction, contending that the different instances of
penetration constitute alternative means of committing the same offense. Yet in rejecting
this argument, the court does not articulate the elements-versus-means test as Richardson
actually developed it or explain why that framework does not apply here. Instead, it
simply invokes Keyes to conclude that a specific-unanimity instruction was required
because “[e]ach of those instances [of penetration], on its own could have proved the
elements” of the offense. Supra at 15. By omitting any discussion of the Richardson test
in response to an argument grounded entirely in that test, the court implicitly
acknowledges that the unanimity-as-to-elements inquiry addressed in Schad and
D-6
Richardson is distinct from unanimity as to instances of conduct—the issue presented
here. The likely explanation is that the Richardson test is ill-suited to this context: neither
Schad nor Richardson grapples with how the introduction of evidence of multiple acts
affects the constitutional protections underlying the requirement of specific unanimity.
Second, and more perplexing, is the court’s suggestion that specific unanimity
may not have been required had the State charged Yang under Minn. Stat. § 609.342,
subd. 1a(h)(iii) (formerly Minn. Stat. § 609.342, subd. 1(h)(iii) (2014)). See supra at 17.
This statute permits charging a single count of first-degree criminal sexual conduct if the
defendant “has a significant relationship to the complainant” and the defendant’s course
of conduct “involved multiple acts [of penetration] committed over an extended period of
time.” Id. But the court’s opinion does not address the tension between its bright-line rule
and the constitutionality of such a course-of-conduct charge.
In my view, under the court’s new framework, most course-of-conduct charging—
even under this statute—would appear to violate the defendant’s right to a unanimous
jury absent a specific-unanimity instruction because it almost always involves a single
charge alleging multiple acts that independently satisfy an element of the offense.2

2 The court’s response to this concern is simply that it is not deciding whether the
“multiple acts” in section 609.342 specifies one element or several. Indeed, it is possible
to interpret the series of acts, rather than the individual instances of sexual penetration or
contact that comprise it, as the relevant element of the statute. But that interpretation runs
headlong into Richardson because it recreates almost the same risk of a non -unanimous
verdict as the government’s interpretation of the continuing -criminal-enterprise statute at
issue in that case.
To see why, suppose the State charged a defendant with a single count of first-
degree criminal sexual conduct under section 609.342, subdivision 1a(h)(iii), and alleged
four separate instances of penetration over an extended period as the “multiple acts”
D-7
Presumably the court would agree that Schad and Richardson place constitutional limits
on the State’s ability to define a criminal offense in a way that creates serious risks of
non-unanimous verdicts. But if that is true, the Legislature’ s designation of an offense as
chargeable as a course of conduct does not magically cure the constitutional violation
arising from such risks. Put differently, the Legislature lacks the power to transform an
unconstitutional charge into a constitutional one simply by designating a course of
conduct as an element of the offense. See Root, 585 F.3d at 154 (“[F]undamental fairness
and due process of law may prohibit combining what could be several independent
charges into a single count, even if the text of a particular statute allows it.”). If we take
this apparent exception for course-of-conduct offenses seriously, application of the
majority’s adopted test “not only would prohibit course of conduct charging in cases in
which it may be warranted, but also may permit it in cases in which it could be

constituting the course of conduct. If six jurors agreed that instances 1 and 2 happened,
but not instances 3 and 4, and the other six agreed that instances 3 and 4 happened but not
1 and 2, the jurors could still unanimously conclude that the defendant is guilty even
though they fundamentally disagree on which specific acts comprise the series element.
But, on the other hand, Minnesota courts have consistently interpreted language referring
to multiple acts or a pattern of conduct as akin to a single element that does not require
unanimity as to the underlying acts. See, e.g., State v. Crowsbreast, 629 N.W.2d 433,
437–39 (Minn. 2001); State v. Johannessohn, 2024 WL 3250423, at *5 (Minn. App. July
1, 2024); cf. State v. Stempf, 627 N.W.2d 352, 358 (Minn. App. 2001) (declining to decide
whether a specific-unanimity instruction “would be warranted when the separate acts
constitute a continuing course of conduct”). To me, this puts the court in an untenable
position. It must either (1) acknowledge that Richardson’s analysis depended on the
unique nature and breadth of the criminal enterprise statute it considered, in which case it
provides little to no support for the categorical rule Keyes announces, or (2) risk seriously
unsettling Minnesota law on course-of-conduct charging.
D-8
unconstitutional.” Douglas C., 285 A.3d at 1104 (Mullins, J., concurring) (emphasis
added).
The most plausible explanation is that course-of-conduct charging can be
constitutionally permissible because, until now, the Legislature has authorized it only
when charging multiple acts in a single count is not so “fundamental[ly] [un]fair[]” as to
violate due process. Cf. Schad, 501 U.S. at 637. The court’s categorical “separate
offenses” rule is difficult to reconcile with that understanding.
For those reasons, I agree with the Correa-Ventura court that “defining unanimity
in terms of ‘separate offenses’ or ‘separate crimes’ would result in an unworkable
‘brightline’ test.” 6 F.3d at 1081. Moreover, as that court explained:
Factual concurrence must be viewed on a case-by-case basis …. “[S]ince the
set of material issues changes composition with the facts of each case,
precedents cannot necessarily be used to construct a clear definition of
materiality.” Statutory language and construction, legislative intent,
historical treatment of t he crime by the courts, duplicity concerns with
respect to defining the offense, and the likelihood of jury confusion in light
of the specific facts presented are all necessary inquiries to be add ressed
before a trial judge can ascertain whether he must instruct the jury to concur
in predicate facts as well as in result.
Id. at 1082 (second alteration in original) (quoting Note, Right to Jury Unanimity on
Material Fact Issues: United States v. Gipson, 91 Harv. L. Rev. 499, 502 & n.27 (1977)).
As I stated in Keyes, the core inquiry should center on “a distillate of the concept of due
process with its demands for fundamental fairness,” ___ N.W.3d ___, 2026 WL 2053029,
at *23 (quoting Schad, 526 U.S. at 637), which, in the duplicity context, depends on
“whether the actions charged are so dissimilar” so as to implicate the due process
considerations I discuss below, see Correa-Ventura, 6 F.3d at 1081.
D-9
B.
Considering the specifics of this case, the State presenting evidence of multiple
acts that could satisfy the penetration element of the relevant statute absent a specific-
unanimity instruction does not by itself warrant reversal. I agree with the court that Minn.
Stat. § 609.342, subd. 1(g) (2014),3 under which Yang was charged, unambiguously has a
single instance of sexual penetration as an element. If subdivision 1(g) contemplated
multiple acts of penetration occurring over a period of time, subdivision (1)(h)—which
criminalizes ongoing sexual abuse of minors—would be superfluous. Indeed, the only
difference between the statutory language of these two subsections is the Legislature’s
addition of “and . . . the sexual abuse involved multiple acts committed over an extended
period of time” in subdivision 1(h). Compare Minn. Stat. § 609.342, subd. 1(g) (2014),
with id., subd. 1(h) (2014). Thus, the first-degree charge under subdivision 1(g) was
duplicitous because it charged multiple completed offenses under a single count.4 Even

3 In 2021, the Legislature recodified subdivision 1(g) as subdivision 1a(g) but made
no substantive amendments to the statutory language or the elements of the offense. Act
of June 30, 2021, ch. 11, art. 4, § 16, 2021 Minn. Laws 1st Spec. Sess. 1947, 2038–40
(effective Sep. 15, 2021).
4 For the reasons just discussed, I am not convinced the availability of subdivision
1(h) meaningfully bears on the ultimate constitutional analysis. The Legislature intended
that subdivision to criminalize ongoing sexual abuse of minors, precisely because of the
evidentiary difficulties associated with proving specific, individual acts in this context.
Splitting hairs over which statutory subsection the State elected to charge seems little
more than “an exercise in mere formalism.” Margiotta, 646 F.2d at 732. Granted,
charging two acts of penetration would be duplicitous under subdivision 1(g) but not
under subdivision 1(h). But charging three acts of penetration would be duplicitous even
under subdivision 1(h): acts 1 and 2, 2 and 3, or 1 and 3 could each independently satisfy
the “multiple acts” element. The statutory language therefore does not meaningfully
eliminate the possibility of duplicity. To me, that is a telling indicator that the proper
D-10
so, under the framework I would adopt, “a determination of duplicity does not end the
analysis.” Douglas C., 285 A.3d at 1085.
As cases from other jurisdictions agree, a duplicitous charge is reversible only if
the duplicity prejudices the defendant. See, e.g., United States v. Singer, 782 F.3d 270,
276 (6th Cir. 2015), abrogated on other grounds by Musacchio v. United States, 577 U.S.
237 (2016); United States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006); United States v.
Olmeda, 461 F.3d 271, 281 (2d Cir. 2006); State v. Roberts, 14 P.3d 713, 737 (Wash.
2000) (en banc). This analysis considers whether combining multiple acts in a single
charge would result in inadequate notice to the defendant of the State’s theory of liability,
create a risk that a general verdict of guilty would conceal a finding of guilty as to one act
and not guilty as to another, or affect appropriate sentencing. See, e.g., Douglas C.,
285 A.3d at 1078; United States v. Margiotta, 646 F.2d 729, 732–33 (2d Cir. 1981).
Because we are reviewing Yang’s conviction rather than an indictment, we can and
should evaluate the risk of a non-unanimous verdict “in light of the specific facts
presented” and the State’s characterization of the acts at trial. See Correa-Ventura, 6 F.3d
at 1082. I address each of these due process considerations in turn.
1.
Beginning with notice, evidence of multiple acts of penetration had no appreciable
effect on Yang’s ability to understand or defend against the charges. A.K.’s prior

unanimity test cannot turn solely on whether the State alleges multiple acts which can
independently constitute an element of a criminal offense (or whether the Legislature
defines a course of conduct as an element).
D-11
statements described with some specificity when, where, and how the penetration
occurred: at Yang’s apartment before he drove her to dance class. And, as I discuss below,
the circumstances surrounding the acts of penetration were materially identical. Yang’s
primary defenses—that A.K. fabricated her testimony to escape living with her mother
and secure financial benefits from the foster system that enabled her to go to college, that
A.K. disclosing the abuse to her aunt pre-dated her move to Yang’s apartment, and that
Yang never picked her up from school or drove her to dance alone—all go to the overall
credibility of A.K.’s testimony, not the occurrence or non-occurrence of particular acts of
penetration. And those defenses apply equally to each act.
2.
For related reasons, I disagree with the court’s conclusion that the State’s charging
decisions and presentation of evidence created a genuine risk that the jury’s verdict on the
first-degree count was not unanimous as to the underlying act(s). Granted, the acts of
penetration could have occurred over a much longer period than the 45-minute assault we
considered in Keyes. The State argued, based on A.K.’s testimony, that the acts of
penetration took place during the approximately nine-month period where A.K. and her
family lived in Yang’s apartment. In most cases, I would be deeply concerned about
packaging multiple distinct offenses occurring that far apart into a single charge.
Here, however, it is evident that the State’s evidence and arguments did not create
a genuine risk of disagreement among the jurors as to which acts supported the first-
degree charge for several fact-specific reasons. First, the circumstances of the acts of
penetration were identical in every material respect. A.K. testified that both acts took
D-12
place at Yang’s apartment when they were alone together after Yang would pick her up
from school before driving her to dance practice. A.K.’s testimony neither identified a
specific date for any act nor described them in particular detail. Moreover, the State did
not meaningfully emphasize any act over others during closing arguments. Second, and
relatedly, the State staked its case entirely on A.K.’s credibility. The State repeatedly told
the jury that the penetration and sexual contact elements were satisfied “if you believe
[A.K.].” The evidence the State offered to corroborate A.K.’s testimony— her disclosure
of the abuse to her aunt and uncle and the messages related to those conversations—went
to the veracity of A.K.’s testimony as a whole, not the occurrence of specific instances of
abuse. Third, with a few exceptions, A.K.’s testimony about other instances of non-
penetrative sexual contact was even more non-descript. Yet the jury still found Yang
guilty of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd.
1(h)(iii) (2014), which requires proof of “multiple acts” of sexual contact “committed
over an extended period of time.” Finally, Yang’s counsel argued that the multiple
allegations of penetration undercut A.K.’s credibility during closing arguments. Defense
counsel repeatedly suggested that inconsistencies in her accounts of the nature, timing,
and circumstances of these acts made the allegations not believable. All twelve jurors
rejected these arguments.
Put together, all of this suggests that the jury believed A.K.’s testimony in its
entirety. Although it is theoretically possible that a juror could have believed that only
fellatio or only cunnilingus occurred, there is simply no plausible basis on this record for
concluding that jurors credited A.K.’s testimony on one act of penetration but not others.
D-13
Thus, at the time the jury was instructed, there was no genuine risk that a general verdict
of guilty would conceal disagreement among the jurors as to the facts constituting the
sexual penetration element of first-degree criminal sexual conduct. “[T]he jury either …
believe[d] [A.K.]’s testimony that the consistent, repetitive pattern of acts occurred or
disbelieve[d] it. In either event, [Yang had] his unanimous jury verdict … and the
prosecution will have proven beyond a reasonable doubt that [he] committed a specific
act ….” See People v. Jones, 792 P.2d 643, 659 (Ca. 1990) (citation omitted) (internal
quotation marks omitted).
3.
Finally, we turn to sentencing considerations. See Douglas C., 285 A.3d at 1078.
Here, unlike the defendant in Keyes, Yang could well have received a separate sentence
for each act of penetration had the State elected to add counts of first-degree criminal
sexual conduct under Minn. Stat. § 609.342, subd. 1(g) (2014). Because these were
separate completed offenses that occurred as far as nine months apart, these crimes would
not be considered a single behavioral incident under our sentencing law because they
occurred at substantially different times. See State v. Jones, 848 N.W.2d 528, 533 (Minn.
2014) (“Offenses are part of a single course of conduct if the offenses occurred at
substantially the same time and place and were motivated by a single criminal
objective.”); State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016) (clarifying that, when
two or more offenses occur in substantially the same place, “we consider [only] whether
the offenses occurred at substantially the same time, and whether they were motivated by
an effort to obtain a single criminal objective”). And although the criminal objectives
D-14
behind each act were qualitatively the same, they were not motivated by a single criminal
objective. Cf. id. (holding that seven downloads of child pornography over an extended
period did not form a single behavioral incident because, although the purpose behind
each download was the same, each was motivated by a separate and distinct criminal
objective).
Federal courts of appeals recognize that aggregating multiple acts into a single
charge may be warranted to “avoid unnecessarily complex and confusing allegations and
the concomitant prejudice to [the defendant] of charging him with [multiple] substantive
counts arising out of the same scheme.” See, e.g., United States v. Robinson, 651 F.2d
1188, 1194–95 (6th Cir. 1981). And here, far from prejudicing Yang, he arguably
“benefitted from the aggregation because each discrete count would have been amenable
to a separate sentence upon conviction.” United States v. Kamalu, 298 F. App’x 251, 254–
55 (4th Cir. 2008) (emphasis added); see also Cohen v. United States, 378 F.2d 751, 754
(9th Cir. 1967) (“The government is to be commended rather than criticized for treating
all such [acts] for the same purpose during a brief period as one crime subject to a single
statutory penalty.”).
Given these considerations, it is unsurprising that the federal courts of appeals
have routinely “upheld the validity of indictments that consolidate several acts into a
single count when such acts represent a single, continuing scheme that occurred within a
short period of time and that involved the same defendant.” United States v. Alsobrook,
620 F.2d 139, 142 (6th Cir. 1980); see also United States v. Davis, 471 F.3d 783, 790 (7th
Cir. 2006) (“Where the indictment ‘fairly interpreted’ alleges a ‘continuing course of
D-15
conduct, during a discrete period of time,’ the indictment is not prejudicially duplicitous.”
(quoting United States v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982))); Kamalu, 298 F.
App’x at 254 (concluding the district court did not err where the defendant was charged
with a single count that aggregated “several potentially discrete counts of violating” the
same statute because the court of appeals was “unable to find any prejudice to Kamalu”);
United States v. Shorter, 809 F.2d 54, 56 (D.C. Cir. 1987) (concluding that “tax evasion
covering several years may be charged in a single count as a course of conduct in
circumstances … where the underlying basis of the indictment is an allegedly consistent,
long-term pattern of conduct directed at the evasion of taxes for th[o]se years”); Cohen,
378 F.2d at 754 (concluding that the challenged count was not prejudicially duplicitous
even though each alleged criminal act “might have been alleged as a separate violation”).
Because Yang suffered no prejudice from the allegedly duplicitous charge even in the
absence of a specific-unanimity instruction, his conviction should stand.
C.
I agree with the court’s statement in Keyes that there is little burden, at least from
the district court’s perspective, in providing a specific-unanimity instruction and it is best
for the court to do so in close cases. But that does not address the question we are asked
to decide. The issue here is whether a specific-unanimity instruction was required—and,
what’s more, whether it was plain error warranting reversal for the district court not to
sua sponte provide that instruction on these facts. If the allegedly duplicitous charge does
not prejudice, and indeed arguably benefits, the defendant, there is no judicial error to
cure.
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On that point, Yang has forfeited appellate review of the specific-unanimity issue
by failing to object to the jury instructions or otherwise raise the issue at trial, and the
court can order relief only if Yang’s claim falls under our plain-error exception. See, e.g.,
State v. Gilleylen, 993 N.W.2d 266, 280 (Minn. 2023).5 Even if I were to agree that Yang
has carried the “heavy burden,” State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998), of
showing that the district court’s decision affected his substantial rights—a doubtful
proposition given that there was no actual risk of a non-unanimous verdict—we could
reverse his conviction only if failure to grant a new trial would “ ‘seriously affect[] the
fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast,
629 N.W.2d 433, 437 (Minn. 2001) (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)).
That high bar is not met here. Rather than request a specific unanimity instruction
before closing arguments, Yang appeared to use the multiple allegations of penetration
strategically. His counsel advanced the inconsistencies across A.K.’s trial testimony and
her prior statements to law enforcement as a reason that the jury should discredit her
testimony in its entirety. As in Keyes, counsel essentially gambled that the odds of an

5 I acknowledge that under our plain-error standard, as announced in State v. Kelley,
855 N.W.2d 269, 277 (Minn. 2014), we adopted the “plain-at-the-time-of-appeal” rule as
controlling under Minn. R. Crim. P. 31.02. Thus, Yang is entitled to the benefit of the
Keyes rule in evaluating whether the district court committed plain error. Accordingly, I
focus my plain-error analysis only on prongs three and four of the plain error rule:
whether the error affected the defendant’s substantial rights, and, if so, whether the error
“seriously affect[ed] the fairness, integrity[,] or public reputation of judicial
proceedings.” State v. Griller, 583 N.W.2d 736, 740, 742 (Minn. 1998) (first alteration in
original).
D-17
acquittal under a general verdict having called A.K.’s credibility further into question
were higher than the odds of an acquittal should the jury be asked to find specifically
which act(s) of penetration occurred. The “fairness, integrity, [and] public reputation of
judicial proceedings” are not served by reversing Yang’s conviction simply because that
strategic choice did not succeed. See Pulczinski v. State, 972 N.W.2d 347, 356 (Minn.
2022) (explaining that the relevant inquiry at the fourth prong of the analysis is “whether
failing to correct the error would have an impact beyond the current case by causing the
public to seriously question whether our court system has integrity and generally offers
accused persons a fair trial”). To hold otherwise would explicitly sanction the “double-or-
nothing” strategy I warned about in Keyes. ___ N.W.3d ___, 2026 WL 2053029, at *23
n.1.
I concluded my Keyes dissent by noting that the court’s categorical rule
compounds the evidentiary challenges in criminal sexual conduct cases relying primarily
on victim testimony, and those challenges are especially acute in child-victim cases.
“Cases that involve the sexual abuse of children … typically turn on the general
credibility of the complainants ….” Douglas C., 285 A.3d at 1124 (Mullins, J.,
concurring). Thus, the Keyes rule and the still-unclear implications of that rule in course-
of-conduct cases risk inconsistent and unjust results, especially when paired with
expansive plain-error review.
In Keyes, I reviewed social and biological science research explaining how trauma
can hinder survivors’ capacity to remember and narrate traumatic events coherently. ___
N.W.3d ___, 2026 WL 2053029, at *31–33. That is true even for adult victims of recent
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trauma, and even when the trauma’s lasting effects do not rise to the level of diagnosable
post-traumatic stress disorder. See id. at *32 (citing scholarship). And it is especially true
for child victims. A child’s memory and recall are likely to be even more impacted by
often-substantial reporting delays, social or family pressure, and cognitive-developmental
differences between children’s and adults’ encoding and retention of memories. Meaghan
C. Danby, Five Considerations About Memory Processes for Child Investigative
Interviewers, 18 Policing: J. Pol. & Prac. 1–7 (2024) (further noting that children are
more prone to memory errors than adults when recalling and recounting specific incidents
in a pattern of ongoing abuse). For exactly those reasons, Richardson itself stressed—
even if only in dicta—that statutes criminalizing sexual abuse of a minor may “represent
an exception” from its analysis because of the “special difficulties of proving individual
underlying criminal acts.” 526 U.S. at 821. “To apply strict specific unanimity
requirements in [cases involving ongoing sexual abuse of children] would place an
unwarranted burden on young victims of sexual assault, essentially penalizing them for
providing whatever limited, specific details they might be able to recall to corroborate
their stories.” Douglas C., 285 A.3d at 1124 (Mullins, J., concurring). Because the court’s
novel categorical rule, unsupported by binding authority, would produce these outcomes
and risk inconsistency in cases requiring careful, uniform application of the law—and
because Yang cannot meet the plain-error standard for reversal—I respectfully dissent
and would affirm his conviction.
D-19
MCKEIG, Justice (dissenting).
I join in the dissent of Justice Moore, III.
HENNESY , Justice (dissenting).
I join in the dissent of Justice Moore, III.