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This opinion is nonprecedential except as provided by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
A24-0228

State of Minnesota,
Respondent,

vs.

Ge Yang,
Appellant.

Filed February 10, 2025
Affirmed
Harris, Judge

Hennepin County District Court
File No. 27-CR-22-21206

Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, N. Nate Summers, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stacy L. Bettison, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Harris, Presiding Judge; Ross, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
HARRIS, Judge
In this direct appeal from the final judgment of conviction of first-degree criminal
sexual conduct, appellant argues that he is entitled to a new trial because he was deprived
of his right to a unanimous verdict. Appellant argues that the district court plainly erred
2
by failing to sua sponte instruct the jury that it had to unanimously agree on which of two
separate and distinct acts of sexual penetration he committed. Because we discern no plain
error by the district court, we affirm.
FACTS
In October 2022, respondent State of Minnesota charged appellant Ge Yang with
two counts of criminal sexual conduct for sexually abusing his stepchild, A.K., who was
under the age of 16 at the time of the abuse. The complaint alleged that the abuse occurred
on or between September 1, 2014, and July 15, 2021. Count 1 charged Yang with first-
degree criminal sexual conduct, in violation of Minnesota Statutes section 609.342,
subdivision 1(g) (2014), and alleged that Yang sexually penetrated A.K.
1 Count 2 charged
Yang with second-degree criminal sexual conduct, in violation of Minnesota Statutes
section 609.343, subdivision 1(h)(iii) (2014), and alleged that Yang engaged in multiple
acts of sexual abuse over an extended period of time.
The matter proceeded to a seven-day jury trial. A.K., A.K.’s precollege advisor,
grandmother, mother, aunt, and uncle testified at trial. A Minneapolis Police Department

1 Count 1 did not involve multiple incidents of criminal sexual conduct committed over an
extended period of time, although that appeared to be the state’s theory of the case at trial.
Minnesota Statutes section 609.342, subdivision 1(g), involves a single incident of criminal
sexual conduct. See State v. Woods, 945 N.W.2d 414, 419 (Minn. App. 2020) (stating that
for sentencing purposes Minnesota Statutes section 609.342, subdivision 1(a) (2010) ,
criminalizes one act of sexual penetration and does not constitute a continuing offense as
discussed in State v. Washington, 908 N.W.2d 601 (Minn. 2018)); see also Minn. Stat.
§ 609.342, subd. 1(h)(iii) (2014) (stating that a person is guilty of first-degree criminal
sexual conduct when the actor has a significant relationship with the victim, the victim is
under 16 years of age, and the sexual abuse involved multiple acts committed over an
extended period of time (emphasis added)).
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sergeant, child-protection investigator, and forensic interviewer also testified. Yang
testified in his own defense.
The following facts were developed at trial. At the time of trial, A.K. was 18 years
old. When A.K. was in fourth grade she moved into an apartment with Yang, her mother,
and her sister. While living at the apartment, Yang touched A.K. inappropriately, including
putting his hand under her shirt and squeezing her breast and touching her butt. This type
of sexual abuse occured frequently.
Yang would pick A.K. up from her grandparent’s house to take her to dance class,
and would take her to the apartment where he would be alone with A.K.. 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.” While Yang and A.K. were in Yang’s bedroom, Yang “would sit
down on the bed and tell [her] to put [her] mouth on his penis so that [she] was able to suck
on his penis.” This abuse continued for the entirety of the two years that A.K. participated
in dance, and would always happen when A.K. was going to dance class. Yang continued
to sexually abuse A.K. after the family moved out of the apartment and into a townhome,
but no longer made A.K. do anything to his body or lay her down naked. Yang continued
to abuse A.K. while she was in middle and high school.
Yang “told [A.K.] not to tell anyone” about the abuse. When A.K. was 16, she told
her aunt and her precollege advisor, who is a mandated reporter. After A.K. disclosed the
abuse to the mandated reporter, the abuse was reported to child protection, who opened an
investigation. The child-protection investigator interviewed A.K. at school, and an audio
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recording of the interview was admitted as evidence and played for the jury. As part of the
criminal investigation, A.K. participated in a forensic interview, which was also played in
its entirety for the jury. A.K. also underwent a medical exam at the Center for Safe and
Healthy Children. The medical records were not admitted as evidence, but the parties
stipulated that A.K. participated in the medical exam, there were no physical injuries found,
and A.K. disclosed sexual abuse consistent with her disclosures in the forensic interview.
Yang testified in his own defense and denied the allegations. He claimed he was
innocent and that he never touched A.K. with sexual or aggressive intent or engaged in
sexual penetration with A.K.
During closing arguments, the state argued that the “really bad stuff” and the “bulk
of the abuse” happened when A.K. was living in the apartment. The state argued that
fellatio and cunnilingus happened at the apartment during the eight months that A.K. lived
there.
2 The defense argued that the allegations were fabricated, and motivated by teenage
rebellion, sibling rivalry, and coaching by A.K.’s aunt and the child-protection investigator.
Prior to jury deliberations, the district court provided general jury instructions,
including the following instruction on unanimity: “In order for you to return a verdict
whether guilty or not guilty, each juror must agree with the verdict. Your verdict must be
unanimous.” Yang did not object to the jury instructions or request a more specific
unanimity instruction. The jury found Yang guilty of both offenses. At sentencing, the
dstrict court entered judgment of conviction and imposed an executed sentence of 144

2 The state did not specify that there were only two acts, nor did it emphasize the timing of
the acts or whether the acts occurred in Yang’s bedroom or A.K.’s bedroom.
5
months for count 1 (first-degree criminal sexual conduct alleging a single act). Yang was
not adjudicated guilty or sentenced on the second-degree criminal sexual conduct charge
because it was a lesser included offense.
Yang appeals.3
DECISION
“Defendants have a constitutional right to a unanimous verdict.” State v. Plantin,
682 N.W.2d 653, 662 (Minn. App. 2004), rev. denied (Minn. Sept. 29, 2004); see Minn.
R. Crim. P. 26.01, subd. 1(5) (“The jury’s verdict must be unanimous in all cases.”). Yang
argues that he was deprived of his right to a unanimous verdict because the district court
did not provide a specific unanimity instruction to the jury after the state introduced
evidence of two distinct acts of sexual penetration.
The district court provided the following unanimity instruction to the jury: “In order
for you to return a verdict whether guilty or not guilty, each juror must agree with the
verdict. Your verdict must be unanimous.” Because Yang did not object to the jury
instructions or request a more specific unanimity instruction, we review Yang’s argument
for plain error. State v. Wenthe, 865 N.W.2d 293, 299 (Minn. 2015).
Under the plain-error standard, we review whether (1) there was an error, (2) the
error was plain, and (3) the error affected Yang’s substantial rights. Id. “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)

3 Yang appeals only the first-degree criminal sexual conduct conviction.
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(quotation omitted). If these requirements are met, we “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).
For a verdict to be unanimous, all members of the jury must agree that the state
proved each element of the offense beyond a reasonable doubt. State v. Pendleton, 725
N.W.2d 717, 730-31 (Minn. 2007). In this case, for the jury to unanimously find Yang
guilty of first- degree criminal sexual conduct, all members of the jury were required to
agree that the state proved the following elements beyond a reasonable doubt: (1) that Yang
engaged in sexual penetration with the victim; (2) that at the time of Yang’s act, the victim
was under the age of 16; (3) that the defendant had a significant relationship with the
victim; (4) that Yang’s act took place between September 1, 2024, and July 15, 2021; and
(5) that the act took place in Hennepin County. Minn. Stat. § 609.342, subd. 1(g).
Yang argues that the jury likely reached a nonunanimous verdict because the jury
was required to agree that Yang engaged in one act of sexual penetration with the victim
to find him guilty, but the state introduced evidence of two separate, distinct acts of sexual
penetration. The jury could have reached a nonunanimous verdict if some jurors found
Yang guilty based on the evidence of fellatio in Yang’s room, while other jurors found
Yang guilty based on the evidence of cunnilingus in A.K.’s room. Accordingly, Yang
argues it was plain error for the district court not to sua sponte instruct the jury that it had
to unanimously agree on which of the two separate, distinct acts met the sexual-penetration
element. We are unpersuaded for three reasons.
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First, a verdict remains unanimous even if all members of the jury do not agree on
“alternative means or ways in which the crime can be committed.” State v. Stempf, 627
N.W.2d 352, 354-55 (Minn. App. 2001) (quotation omitted). There are alternative means
or ways of committing a crime “when a [district] court determines that certain statutory
alternatives are mere means of committing a single offense, rather than independent
elements of the crime.” Id. at 355 (quotation omitted). In this case, the district court
instructed the jury that sexual intercourse, cunnilingus, or fellatio, were statutory
alternatives to meet the single sexual penetration element. Minn. Stat. § 609.341,
subd. 12(1) (2014). In other words, t he state could prove the sexual penetration element
by presenting evidence that Yang committed various acts, including sexual intercourse,
cunnilingus, or fellatio. And, to reach a unanimous verdict, the jury did not need to agree
as to what type of sexual penetration Yang engaged in with the victim. Stempf, 627 N.W.2d
at 353.
Second, Yang’s a rgument relies almost entirely on our holding in Stempf, but Stempf
is distinguishable from the facts of Yang’s case in light of State v. Rucker, 752 N.W.2d 538
(Minn. App. 2008), rev. denied (Minn. Sept. 23, 2008). In Stempf, we concluded that the
district court abused its discretion by refusing to give a specific unanimity instruction
requested by Stempf at trial. 627 N.W.2d at 354, 359. Stempf requested a unanimity
instruction because he was charged with and convicted of one count of drug possession,
but at trial the state introduced evidence of two distinct incidents of drug possession. Id.
at 357-58. The two incidents were separate in time and location—one was at Stempf’s
work, and one was in a truck where Stempf was recently a passenger. Id. Stempf presented
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separate defenses to each incident, and during closing argument, the state told the jury “that
it could convict if some jurors found appellant possessed the [drugs] found in the truck
while others found he possessed the [drugs] found on the premises.” Id. at 354, 358. Under
these facts, we concluded that a unanimity instruction was required because “the state did
not elect which act of possession it was relying on for conviction” and because “[s]ome
jurors could have believed appellant possessed [the drugs] found on the [work] premises
while other jurors could have believed appellant possessed the [drugs] found in the truck.”
Id. at 358.
In contrast, we concluded in Rucker that the district court did not err by not
instructing the jury that it must unanimously agree on which specific acts formed the basis
of Rucker’s criminal sexual conduct convictions. 752 N.W.2d at 548. Rucker was charged
with and convicted of two counts of first-degree criminal sexual conduct and two counts
of second-degree criminal sexual conduct. Id.
4 At trial, the state introduced testimony
describing several incidents of sexual contact and penetration between the defendant and
the victims over a two-year period. Id. at 543. Rucker did not request a unanimity
instruction at trial but, on appeal, Rucker relied on Stempf to argue that the jury should
have been given a unanimity instruction “as to which specific acts [Rucker] committed.”
Id. at 548. We distinguished the particular facts of Rucker from Stempf and concluded that
a unanimity instruction was not required because Rucker raised a single defense to each

4 In Rucker the defendant was charged under Minn. Stat. § 609.342, subd. 1(b) (2002),
which, like the statute charged here, does not require proof of multiple acts over an
extended period of time.
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alleged act—“that he never had sexual contact with either child-victim”— and the state did
not “encourage the jury to find certain incidents were more likely to have occurred than
other incidents.” Id.
Yang’s case is more like Rucker than Stempf. Like Rucker, Yang’s defense at trial
was that he never abused the child-victim. During his testimony, Yang denied the
allegations in their entirety. And during closing argument, Yang’s defense counsel argued
that the allegations were fabricated and motivated by teenage rebellion, sibling rivalry, and
coaching by A.K.’s aunt and the child-protection investigator. Also, like Rucker, the state
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.” Id.
Instead, the state argued that the abuse “happened a lot,” and that the sexual penetration
element could be met by both the cunnilingus and fellatio that A.K. testified happened in
the apartment. The state’s argument was consistent with A.K.’s testimony. A.K.’s
testimony contained general descriptions of the sexual abuse and did not contain specific
dates and times. For example, A.K. testified that she “[didn’t] remember what day it was.
But [Yang] would pick [her] up from [her] grandparents’ house and take [her] back to the
apartment because [she] would have dance practice. And then [Yang] would do those acts
on [her].” A.K. also testified that the abuse happened “more than once” for the entirety of
the two years that she danced, and during the forensic interview, A.K. described the more
“memorable” instances of abuse. Therefore, even though the state presented evidence of
ongoing abuse involving multiple acts to prove a single incident of first-degree criminal
sexual conduct, as in Rucker, “with respect to [her] testimony and the state’s case as a
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whole, these recollections served as examples of appellant’s conduct and not distinct
allegations of sexual abuse.” Id.
Third, the law on when a unanimity instruction is required is unsettled. See State v.
Ellis, No. A16-1216, 2017 WL 3222008, at *3 (Minn. App. July 31, 2017) (stating that “it
is not clear under Rucker that the unanimity instruction was required because the state
presented evidence of multiple distinct acts that allegedly took place on different dates”),
rev. denied (Minn. Oct. 25, 2017).
5 Under Rucker, a unanimity instruction is not required
when the state charges the defendant with a single incident of criminal sexual conduct but
then presents evidence of multiple distinct acts that allegedly occurred on different dates. 6
Id. Instead, whether a unanimity instruction is required depends on the particular facts of
each case, such as whether the defendant’s conduct occurred in substantially the same time
and place, whether there was more than one victim, whether the state emphasized and
weighed the separate incidents, whether the defendant raised separate defenses to each
incident, and whether the defendant requested the unanimity instruction. Rucker, 752
N.W.2d at 548. Therefore, because the law is unsettled, any error by the district court in
failing to sua sponte provide the jury a unanimity instruction was not plain. See State v.

5 We cite this nonprecedential opinion only as persuasive authority. Minn R. Civ. App. P.
136.01, subd. 1(c).
6 Although we conclude that this case is similar to Rucker, we also note that the unanimity
issues in this case may have been avoided had the state made a different charging decision.
To avoid the unanimity problems, the state may have charged a separate count for each
alleged incident (one count for each bedroom), or charged Yang with first-degree criminal
sexual conduct involving multiple acts over an extended period of time under Minnesota
Statutes section 609.342, subdivision 1(h)(iii). See Wenthe, 865 N.W.2d at 299 (“The
unanimity problems created by the State’s vague drafting of the complaint could have
easily been avoided.”).
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Ayala-Leyva, 848 N.W.2d 546, 555 (Minn. App. 2014) (stating that the district court’s jury
instruction was not plain error when the law was “cloudy” or “unsettled.”), rev. denied
(Minn. Aug. 11, 2015).
In sum, any error by the district court in failing to sua sponte provide the jury a
unanimity instruction was not plain because the jury was not required to agree on the type
of penetration, this case is more like Rucker than Stempf, and the law on when a unanimity
instruction is required is unsettled.7
Affirmed.

7 Because we conclude there was not plain error, we do not address the remaining plain-
error prongs.