Donavon Dexter Boone, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A25-1546

Donavon Dexter Boone, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 8, 2026
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-20-12084

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mary F. Moriarty, Hennepin County Attorney, Elizabeth Scoggin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
At Donavon Boone’s trial for first-degree burglary and domestic assault, the
prosecutor told the jury that there were “multiple ways” it could find that the state proved
that Boone committed domestic assault—either by his kicking in the door of the victim’s
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apartment or by his then choking her. The district court did not instruct the jurors that they
must unanimously agree as to which act Boone committed to find him guilty of this offense,
and the jury found Boone guilty as charged. Boone unsuccessfully petitioned for
postconviction relief partially on the ground that the district court plainly erred by failing
sua sponte to issue a unanimity instruction. We affirm, because a unanimity instruction is
not required when two acts satisfying the same element of an offense occur within the same
behavioral incident.
FACTS
Alleging that Donavon Boone kicked in a woman’s apartment door and strangled
her in May 2020, the state charged him with first-degree burglary of an occupied dwelling
in violation of Minnesota Statutes section 609.582, subdivision 1(a) (2018), and felony
domestic assault in violation of Minnesota Statutes section 609.2242, subdivision 4 (2018).
We will call the woman “Lara,” a name we have randomly chosen in the interest of
protecting her privacy.
The prosecutor in Boone’s trial played for the jury a recording of Lara’s 9-1-1 call
during which she told the dispatcher, “My baby daddy Donav[o]n Boone just broke my
door and he . . . choked me and put his hands on me.” The New Hope police officers who
responded to the call testified that they found significant damage to Lara’s front door and
that she was visibly shaking when she spoke with them. One officer, who served as the
breacher on a SWAT team, opined that the door had been kicked in. The prosecutor
introduced photographs of the damaged door and of scratches on Lara’s arm and
collarbone. The jury also heard excerpts from recordings of calls Boone made from jail
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that included multiple incriminating statements: “I got into it with my baby mom . . . and I
end up breaking the door . . . .” “ I did break the door but I didn’t try to break in.” “[W]e
was fighting, you know. It wasn’t like fist fighting nothing like, we was just, you know,
like wrestling.”
The district court instructed the jury on Boone’s domestic-assault charge that
“‘assault’ as used in this case means an act done with intent to cause [Lara] to
fear . . . immediate bodily harm or death.” No party asked the court to issue a unanimity
instruction on this or any element of Boone’s domestic-assault charge, and Boone did not
object to the district court’s instructions.
In closing, the prosecutor argued, “There’s multiple ways that you can find that the
defendant assaulted [Lara],” suggesting that the jury could base the conviction either on a
finding that Boone put Lara in fear of imminent bodily harm by actually choking and
scratching her or that he did so by kicking in her apartment door while she and her children
were inside.
The jury found Boone guilty of both first-degree burglary and felony domestic
assault. The trial court sentenced him to serve 52 months in prison on the burglary
conviction but, finding both offenses to have occurred in the same course of conduct, did
not sentence him on the assault conviction.
Boone petitioned for postconviction relief. He argued, among other things not
relevant to this appeal, that the district court’s failure to issue a unanimity instruction on
his domestic-assault offense invalidates his conviction. The postconviction court denied
Boone’s petition, identifying alternative grounds for the trial court not to have issued a
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unanimity instruction: the two acts that the state argued constituted the assault occurred
within a single behavioral incident, and the two acts also constituted different means of
satisfying the assault element.
Boone appeals.
DECISION
Boone challenges the postconviction court’s decision denying his petition for relief.
We review this denial for an abuse of discretion, which occurs when the postconviction
court’s decision is contrary to fact and logic or it incorrectly applies the law. State v. Nicks,
831 N.W.2d 493, 503 (Minn. 2013). We review the postconviction court’s fact findings for
clear error and its legal conclusions de novo. Id. For the following reasons, we see no abuse
of discretion.
Boone unconvincingly argues that the postconviction court failed to recognize that
the trial court erred by not issuing a unanimity instruction. We review the unobjected-to
jury instructions for plain error. See S tate v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Boone can prevail under this test only if he identifies an error, the error was plain, and the
error affected his substantial rights. Id. If he carries that burden, we will grant relief only if
we conclude that doing so is in the interest of justice and judicial integrity. Id. We have
carefully considered the arguments and conclude that Boone fails to identify a plain error.
The district court did not err by failing to issue a unanimity instruction on the
“assault” element of Boone’s domestic-assault charge. It is true that a jury verdict must be
unanimous in criminal trials. Minn. R. Crim. P. 26.01, subd. 1(5); State v. Bey, 975 N.W.2d
511, 517 (Minn. 2022). This requires juries to unanimously find that the state proved each
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element of a crime to reach a guilty verdict. State v. Pendleton , 725 N.W.2d 717, 730–31
(Minn. 2007). And when an element of a crime consists of an act, if the state presents
evidence of multiple acts that could satisfy that element, the jurors must unanimously agree
as to which act the defendant committed for the guilty verdict to be valid. State v. Stempf,
627 N.W.2d 352, 355 (Minn. App. 2001). If the state does not specify which act it is relying
on to satisfy that element of the offense, the district court must issue a unanimity
instruction. Id. at 358.
But jurors need not unanimously agree as to the means by which a defendant
committed a crime if the relevant statute lists multiple behaviors that would satisfy the
element. State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987), rev. denied (Minn. Jan.
20, 1988). And the district court also need not issue a unanimity instruction if the
defendant’s actions were part of the same behavioral incident. State v. Infante, 796 N.W.2d
349, 356–57 (Minn. App. 2011), rev. denied (Minn. June 28, 2011). We believe that here,
the district court correctly concluded that no unanimity instruction was necessary because
the two acts that the state argued could satisfy the assault element of Boone’s domestic-
assault charge occurred in a single behavioral incident. We therefore do not address
Boone’s argument that the postconviction court erred by concluding that the state presented
the jury with multiple means rather than multiple acts of an assault, other than to say that
the argument appears plausible.
The postconviction court concluded that Boone’s acts of kicking in the door and
strangling Lara occurred within the same course of conduct, and Boone does not contest
that conclusion. He argues instead that it does not follow from this conclusion that a
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unanimity instruction is unnecessary for two reasons: the caselaw providing the same-
course-of-conduct precept does so only as dicta, and even if it is not dicta, United States
Supreme Court and Minnesota Supreme Court precedent contradict it. Neither argument
leads us to reverse.
We are not convinced by Boone’s contention that Infante’s same-course-of-conduct
precept is merely dicta. Dictum is a declaration in a judicial opinion that is unnecessary to
the court’s decision. State v. Atwood, 914 N.W.2d 422, 425 (Minn. App. 2018), aff’d, 925
N.W.2d 626 (Minn. 2019). But the contested portion of Infante provides an independently
sufficient basis for its resolving the issue on appeal separate from its alternative acts -
versus-means analysis. 796 N.W.2d at 356 –57. As the Infante court’s single-course-of-
conduct decision is just as necessary to its resolution as its acts-versus-means decision, its
single-course-of-conduct rationale constitutes its holding.
We also are not persuaded to reverse by Boone’s argument that we should reject
Infante’s single-course-of-conduct holding because of generalized statements in precedent
by the federal and state highest courts. Even if we agreed with Boone’s premise, the district
court was bound by Infante as a directly controlling opinion. See State v. M.L.A., 785
N.W.2d 763, 767 (Minn. App. 2010), rev. denied (Minn. Sept. 21, 2010). And more
specific to the issue on appeal today, the alleged district court error could not be considered
plain in light of Infante, meaning that the postconviction court’s denial of Boone’s petition
claiming error does not constitute an abuse of discretion.
The trial court’s implicit rel iance on Infante’s holding did not constitute a plain
error. Plain errors violate precedential caselaw, a rule, or a standard of conduct. State v.
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Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Infante does not stand alone to defeat Boone’s
plainness argument, as the supreme court has suggested the same single-behavioral-
incident basis for excepting the unanimity-instruction requirement. See State v. Ihle, 640
N.W.2d 910, 919 (Minn. 2002) (holding that a unanimity instruction was not necessary in
part because the defendant’s behaviors “were committed as part of a single behavioral
incident”). We add that, although our nonprecedential opinions have no binding effect,
multiple opinions indicate that we have continued to rely on the Infante holding that Boone
would have us disregard. See, e.g ., State v. Shines, No. A23-1794, 2024 WL 4344953, at
*3 (Minn. App. Sept. 30, 2024), rev. denied (Minn. Jan. 21, 2025); State v. Capshaw, No.
A21-1694, 2022 WL 17748210, at *5 (Minn. App. Dec. 19, 2022), rev. denied (Minn. Mar.
14, 2023); State v. Covington, No. A12-0589, 2013 WL 141691, at *4–5 (Minn. App. Jan.
14, 2013), rev. denied (Minn. Mar. 27, 2013). At most, the legal proposition that Boone
contests is not settled, and an error is not plain if the law is unsettled. See State v. Ayala-
Leyva, 848 N.W.2d 546, 555 (Minn. App. 2014), rev. denied (Minn. Aug. 11, 2015).
Also unavailing is Boone’s argument that the alleged error was plain because Stempf
requires a unanimity instruction when the state alleges that th e defendant committed
multiple acts that could each satisfy an offense element. See 627 N.W.2d at 358. Stempf
explicitly reserved the issue of whether its analysis should apply to cases where the
defendant’s acts “constitute a continuing course of conduct.” Id. at 358–59. Because Boone
identifies no plain error by the trial court, he has not shown that the postconviction court
abused its discretion by denying his petition for relief.
Affirmed.