Full Opinion

STATE OF MINNESOTA IN SUPREME COURT A23-1400 Court of Appeals Gaïtas, J. Dissenting, Moore, III, McKeig, Hennesy, JJ. State of Minnesota, Respondent, vs. Filed: July 15, 2026 Office of Appellate Courts Tracey Dee Keyes, Appellant. ________________________ Keith Ellison, Attorney General, Saint Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant Ramsey County Attorney, Saint Paul, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, Saint Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. Appellant did not forfeit the issue of whether a specific-unanimity instruction was required. 2. When the State charges one count of criminal conduct but presents evidence of more than one distinct act, each of which on its own could prove the elements of the charged offense, a defendant is entitled to a specific-unanimity 1 instruction, which advises the jury that it must unanimously agree as to the distinct act that proves the elements of the charged offense. 3. To determine whether a specific-unanimity instruction is required, a court must first look to the statute defining the offense to identify the elements of the offense and then determine whether the State has alleged more than one distinct act that could prove those elements. 4. The district court abused its discretion in denying appellant’s request for a specific-unanimity instruction because the State alleged two distinct acts of nonconsensual sexual penetration, either of which on its own could have proved the single charged offense of first-degree criminal sexual conduct. 5. The district court’s error in denying appellant’s request for a specific- unanimity instruction was not harmless beyond a reasonable doubt because it is reasonably likely that some jurors believed that appellant sexually penetrated the victim in the bedroom but not the living room, while other jurors believed that appellant sexually penetrated the victim in the living room but not the bedroom. Reversed and remanded. OPINION GAÏTAS, Justice. In this case, which involves disturbing allegations of domestic violence and sexual assault, we consider whether a district court must give a specific-unanimity jury instruction when the State charges a single count of a crime but alleges distinct acts, each of which on its own could constitute the crime. Respondent State of Minnesota charged 2 appellant Tracey Dee Keyes with several criminal offenses, including first-degree criminal sexual conduct involving his former intimate partner, S.B. At trial, S.B. testified that Keyes committed two distinct acts of nonconsensual sexual penetration. Keyes asked the district court to instruct the jury that unanimous agreement was required as to which specific act of penetration satisfied the offense of first-degree criminal sexual conduct, but the district court denied the request. The jury found Keyes guilty of first-degree criminal sexual conduct, among other offenses. Keyes appealed to the court of appeals, arguing that the district court’s denial of a specific-unanimity jury instruction violated his constitutional right to a unanimous jury verdict. The court of appeals rejected this argument and affirmed. We granted Keyes’s petition for further review. We conclude that when the State charges one count of criminal conduct but presents evidence of more than one distinct act, each of which on its own could prove the elements of the charged offense, a defendant is entitled to a specific-unanimity instruction, which advises the jury that it must unanimously agree as to the distinct act that proves the elements of the charged offense. To determine whether a specific- unanimity instruction is required, a court must first look to the statute defining the offense to identify the elements of the offense and then determine whether the State has alleged more than one distinct act, each of which on its own could prove those elements. Here, because the State alleged two distinct acts of nonconsensual sexual penetration, either of which could have proved a single charged offense of first-degree criminal sexual conduct, the district court abused its discretion in denying Keyes’s request for a specific- unanimity instruction. Because it is reasonably likely that some jurors believed that 3 appellant sexually penetrated the victim in the bedroom but not the living room, while other jurors believed that appellant sexually penetrated the victim in the living room but not the bedroom, the district court’s error was not harmless beyond a reasonable doubt. We therefore reverse and remand for a new trial on the first-degree criminal sexual conduct charges. FACTS The following summary of the facts is based on the evidence presented at Keyes’s jury trial. S.B. and Keyes met on a dating website in 2021. In summer 2021, Keyes moved in with S.B., her children, and her two nieces and nephew. That winter, Keyes began to call S.B. derogatory names and accuse her of infidelity. Following an argument in January 2022, during which S.B. felt threatened and called police, S.B. told Keyes that he could no longer stay in her home. Keyes did not return his key to S.B. before leaving. In the early morning hours of February 4, 2022, S.B. drove her daughter to work and noticed that Keyes was following her. When S.B. and her daughter arrived at her daughter’s workplace, Keyes drove past them in his car, and he then left the parking lot. S.B. returned home alone after dropping off her daughter. S.B.’s nieces and nephew—ages nine, six, and five—were home, and S.B. intended to get the children ready for school. As S.B. arrived at her front door, Keyes approached her and asked if he could retrieve his belongings from inside. He seemed calm, so S.B. let him inside. Keyes went to S.B.’s bedroom. The children were still in bed in their bedroom. 4 After 15 to 30 minutes, S.B. grew concerned that Keyes was not gathering his belongings. She went to the bedroom to tell him to leave. According to S.B., when she entered the room, which was dark, Keyes knocked her to the ground, sat on her back, and repeatedly punched her in the head. S.B. testified that while on the ground she was “seeing stars.” Eventually, S.B. told Keyes to get off of her. Keyes responded, “You gonna suck my dick.” He allowed S.B. to get up and sit on the edge of the bed. Then, according to S.B., Keyes pulled down his pants and put his penis in S.B.’s mouth. S.B. testified that during this encounter, Keyes punched her again because she “wasn’t doing it right.” She told Keyes, “You’re going to kill me,” to which Keyes replied, “That’s what I came here to do.” At some point, S.B. and Keyes moved to the living room. S.B. testified that she asked Keyes to get her water, hoping this would provide her with an opportunity to leave the house. But Keyes pulled S.B. down onto the couch, wrapping his arm underneath her neck. S.B. struggled to remove Keyes’s arm from her neck, and he let go. Then, according to S.B., “[W]e tried with the oral sex again because he … said that, ‘[y]ou gonna suck my dick like you do everybody else.’ ” S.B. testified that she was sitting on the edge of the couch when Keyes again put his penis in her mouth. She complied because she believed it was the only way to prevent Keyes from punching her. The children suddenly entered the living room, and both S.B. and Keyes “jumped up.” At that point, S.B. began to get the children ready for school. According to S.B., the entire incident—including the sexual act in the bedroom and the sexual act in the living room—was approximately 45 minutes to one hour long. 5 Keyes then allowed S.B. to prepare the children for school. S.B. drove two of the children to their bus stop, leaving one child—the nine-year-old—at home so that Keyes would not suspect that she planned to seek help. Rather than returning home, however, S.B. reported the incident to police. Officers went to S.B.’s home and arrested Keyes. The third child left in the home was turned over to S.B.’s sister while the police investigation was ongoing. S.B. was transported to the hospital by ambulance, where she received treatment for her injuries and underwent a sexual assault examination. A swab taken from S.B.’s mouth during the sexual assault examination contained Keyes’s DNA. Based on this incident, the State charged Keyes with first-degree criminal sexual conduct (Minn. Stat. § 609.342, subd. 1a (Supp. 2021)); third-degree assault (Minn. Stat. § 609.223, subd. 1 (2020)); threats of violence (Minn. Stat. § 609.713, subd. 3(a)(1) (2020)); and false imprisonment (Minn. Stat. § 609.255, subd. 2 (2020)).1 Keyes pleaded not guilty, and the case went to trial in January 2023. When the jury was presented with a video that did not include redactions agreed upon by the parties, the district court declared a mistrial.2 1 The conduct in this case occurred in February 2022. At that time, the 2020 version of Minnesota Statutes was in effect. Here, when describing Keyes’s alleged offenses, we cite to the statutes in effect in 2020. 2 The original complaint charged Keyes with first-degree criminal sexual conduct causing fear of imminent great bodily harm (Minn. Stat. § 609.342, subd. 1(a) (Supp. 2021)). Following the mistrial, the State amended the complaint, adding two additional counts of first-degree criminal sexual conduct: first-degree criminal sexual conduct causing personal injury while using force (Minn. Stat. § 609.342, subd. 1(c)(ii) (Supp. 2021)); and first-degree criminal sexual conduct causing personal injury while 6 A second trial was held the following month. Keyes’s counsel conceded that Keyes had assaulted S.B., and the focus of the trial was whether Keyes committed first- degree criminal sexual conduct. The State’s trial theory was that the entire incident, including both instances of sexual penetration that S.B. described—the instance in the bedroom and the instance in the living room—satisfied the elements of first-degree criminal sexual conduct. Keyes’s defense was that S.B. had fabricated the sexual assault allegations. Defense counsel highlighted evidence that S.B. had consistently reported just one instance of sexual penetration, but for the first time during her testimony, had alleged a second instance. The defense also attacked S.B.’s general credibility. Keyes’s attorney cross-examined S.B. about inconsistencies in her statements and impeached her testimony that she did not use drugs with evidence that her urine contained methamphetamine. Near the end of the trial, the attorneys met with the district court to discuss whether the district court would give the jury an instruction regarding specific unanimity. A specific-unanimity instruction advises the jury that when the State charges one count of criminal conduct but presents evidence of more than one distinct act, each of which on its own could prove the elements of the charged offense, the jury must unanimously agree as using coercion (Minn. Stat. § 609.342, subd. 1(c)(i) (Supp. 2021)). For purposes of the arguments that the parties have made on appeal and our analysis of those arguments, the additional charges are immaterial, and therefore no further discussion of these charges is required. 7 to the distinct act that proves the elements of the charged offense. The discussion concerning the instruction began as follows: THE COURT: Did the parties want to talk about the -- just the unanimity issue now -- was -- did you want any more time to address that, [prosecutor]? PROSECUTOR: Well I just sent a case so if the Court wants to do it now, we can. I think I potentially could have more cases tomorrow, but the case that I sent kind of summarizes with other cases so whatever you prefer. THE COURT: Would you want to talk a little bit about it and then make a final -- reach a final resolution either later this evening or first thing early tomorrow morning? The prosecutor then asserted that a specific-unanimity jury instruction is not warranted when multiple acts occur during the course of a single behavioral incident. According to the prosecutor, the sexual assaults that S.B. alleged constituted a single behavioral incident. Keyes’s counsel responded that a specific-unanimity instruction was required, stating that “the jury needs to be instructed that if six of them believe that an act of penetration occurred in the bedroom and six of them believe that an act of penetration occurred in the living room, that that is not considered a unanimous verdict.” After further discussion, the district court and Keyes’s counsel had the following exchange: THE COURT: And I’m still kind of thinking about -- my initial thought was -- which is that this is kind of one -- it’s alleged to be one big 45 minute assault that includes all of these things if -- if the jury’s to be believed. So, unlike assaults, sexual assaults that would have occurred over a period of time, I don’t -- I don’t see 45 minutes being appropriate to break down. I mean, that’s my initial thought and I’d want to hear from both sides a little further since we’re just sort of talking about this issue for the first time today. [KEYES’S COUNSEL]: And -- and I understand what the Court’s saying with that and the case law cited by [the prosecutor]. I think I would just note that the -- that if at any point, I guess, during closing or -- or rebuttal, if it seems to be that the -- the door’s being opened for, you know, hey you can - 8 - you can believe that it happened here, you can believe -- you know. If it -- if -- if the State starts to -- to put -- bring this issue in based on its argument, like what happened in the case that I sent that I can’t remember the name of, I might ask to, you know, readdress or ask for an instruction at that point. The prosecutor responded that she didn’t think she “would go in that direction.” Then, the following exchange occurred: THE COURT: I mean, if -- if we didn’t have the unanimity and it’s written just like -- like it was originally sent over to you all -- I mean, there wasn’t the specific unanimity in each count, there was the general one, of course, earlier in the instructions. I think, [Keyes’s attorney], you’re saying that if [the prosecutor], during closing starts to say there’s really two instances here of sexual assault, one happened in the bedroom, one happened in the living room, then you’d say, well, there ought to be -- so I don’t want to micromanage or tell [the prosecutor] how to do her closing, but if -- so I think that’s what you’re saying, [Keyes’s counsel]. [KEYES’S COUNSEL]: Yeah, essentially. So that the -- in the -- in the case that I sent, the prosecutor said to the jury, you can find him guilty if you believed he possessed the drugs in the car, you can find him guilty if he possessed -- if you believe that he possessed the drugs in his wallet. And that’s sort of what the -- the Court of Appeals focused on was, you know, they -- the jury should have received a specific unanimity instruction because they have to agree on what the act of possession was. But as long as it’s not sort of brought up sort of that way or in a similar way, you know, it would just be that I would renew, maybe, my notion [sic] if it is. The prosecutor then commented on how she might approach her closing statement, and Keyes’s counsel replied, “I think it’s another—we’ll jump off that bridge if we get to it.” The district court responded, “Okay. Fair enough. So perhaps enough said about that for now.” 9 After the jury instructions were finalized—without a specific-unanimity instruction but with a general-unanimity instruction3—the district court asked both attorneys whether they were satisfied with the draft instructions. Both attorneys replied that they were. After deliberating, the jury found Keyes guilty on all counts. The district court entered convictions for first-degree criminal sexual conduct, third-degree assault, and threats of violence, and sentenced Keyes to 360 months in prison. Keyes appealed to the court of appeals, arguing that the district court erred by denying his request for a specific-unanimity instruction. State v. Keyes, No. A23-1400, 2024 WL 3493517, at *1 (Minn. App. July 22, 2024). Before the court of appeals he contended that “because the state introduced evidence of two instances of alleged penetration … the jury very likely reached non-unanimous verdicts on those counts.” Id. at *3 (internal quotation marks omitted). The court of appeals affirmed Keyes’s convictions in a nonprecedential decision. Id. at *6. It concluded that Keyes had failed to properly preserve the question of whether a specific-unanimity jury instruction was required. Id. at *2–3. The court of appeals also concluded that the district court did not plainly err when it failed to give a specific-unanimity jury instruction. Id. at *4. The court 3 The general-unanimity instruction stated, “When you reach a verdict, it must be agreed upon by all of you. In other words, your verdict must be unanimous.” 10 of appeals reasoned that because both acts of penetration were part of a single behavioral incident, a specific-unanimity jury instruction was not required.4 Id. We granted Keyes’s petition for further review.5 ANALYSIS In this case, we consider whether a district court must give a specific-unanimity jury instruction when the State charges a single count of a crime but alleges distinct acts, each of which on its own could prove the elements of the charged offense. A specific- unanimity jury instruction informs the jury that it must unanimously agree on the distinct act that proves the elements of the charged offense. We first consider which appellate standard of review to apply here. Then, after reviewing federal and state law, we consider whether a defendant in a Minnesota state court prosecution is entitled to receive a specific-unanimity instruction. We next identify an analytical framework for determining when such an instruction is warranted. Applying that framework to the facts in Keyes’s case, we determine that the district court erred by not giving the jury a specific-unanimity instruction. Finally, we address whether the error 4 Keyes raised two other issues before the court of appeals. Keyes, 2024 WL 3493517, at *1. He argued that the district court “erred by denying his motion for an order guaranteeing him a jury trial before a fair cross-section of the community” and “abused its discretion by allowing [the State] to amend its complaint.” Id. The court of appeals rejected both arguments. Id. at *5–6. 5 In his petition for further review to this court, Keyes raised three issues: whether the district court erred in allowing the State to amend the complaint, whether the district court erred in denying his request for a specific-unanimity jury instruction, and whether any of the issues in his pro se supplemental brief warranted review. We granted review of the jury instruction issue and denied review of the other two issues. 11 prejudiced Keyes, concluding that the error was not harmless beyond a reasonable doubt and thus warrants a new trial. I. Before turning to the substance of the parties’ arguments, we must identify our standard of review for this case. The standard we apply depends on whether Keyes requested a specific-unanimity jury instruction at trial, thereby preserving the issue before us. The parties disagree about whether Keyes asked the district court for the instruction. According to Keyes, the record shows that his trial counsel requested a specific- unanimity instruction and the district court denied the request. Thus, Keyes argues, we should review the alleged error using the standard of review that we apply when a party requests a jury instruction and the request is denied. Generally, a district court’s “[d]enial of a requested [jury] instruction is reviewed for an abuse of discretion.” State v. Schoenrock, 899 N.W.2d 462, 466 (Minn. 2017). A district court abuses its discretion “when its jury instruction materially misstates the law when read as a whole.” Id. Moreover, Keyes contends, the district court’s denial of the requested specific-unanimity jury instruction implicated his constitutional right to a unanimous verdict. When a jury instruction issue presents an underlying constitutional question, we review the constitutional question de novo. See State v. Bey, 975 N.W.2d 511, 516 (Minn. 2022). Keyes asks us to review the constitutional issue de novo—without deference to the district court. The State offers a competing interpretation of what the record shows. According to the State, Keyes’s counsel withdrew the request for a specific-unanimity instruction when 12 the prosecutor clarified that she would not argue to the jury that the sexual assaults were distinct criminal acts. The State also notes that, although Keyes’s counsel suggested that the defense might renew the request for the jury instruction, the issue was never raised again before the case was submitted to the jury. The State contends that Keyes therefore failed to preserve the issue of whether a specific-unanimity instruction was required, and we should consider the issue to be forfeited. The forfeiture doctrine encourages defendants to object before the district court so that the district court has an opportunity to correct errors “before their full impact is realized.” State v. Thompson, 3 N.W.3d 257, 263 (Minn. 2024) (citation omitted) (internal quotation marks omitted). Under that doctrine, when a defendant fails to request a jury instruction in the district court, we review for plain error. State v. Zinski, 927 N.W.2d 272, 275 (Minn. 2019). To establish 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). An error is “plain” if it is clear or obvious. State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008). “When the defendant satisfies these requirements, an 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). Although it is a close question, we conclude that Keyes adequately preserved the issue of whether a specific-unanimity instruction was required. The record shows that Keyes’s trial counsel requested a specific-unanimity instruction and that the district court denied the request. Thus, the district court had an opportunity to address the issue during 13 the trial. As the parties’ arguments reveal, however, the subsequent exchange between the district court, Keyes’s counsel, and the prosecutor is not entirely clear as to whether Keyes’s counsel withdrew the request or whether Keyes’s counsel would consider renewing the request following the prosecutor’s closing argument. Keyes’s counsel, however, never expressly withdrew the request during the exchange. And Keyes’s counsel notified the district court and the prosecutor that, if warranted, she would “renew” the motion after the prosecutor’s closing argument. Thus, on balance, we are not convinced that Keyes’s counsel withdrew the request for a specific-unanimity instruction, and we determine that the initial request sufficiently preserved the issue. Accordingly, we apply our standard of review for preserved errors,6 and we review the district court’s denial of a specific-unanimity instruction for an abuse of discretion. See Schoenrock, 899 N.W.2d at 466. II. This case presents the first circumstance in which our court has addressed the specific-unanimity issue outside the plain error context. We thus take this opportunity to address the specific-unanimity issue more fully than we have in other cases where the 6 The dissent argues that our determination that Keyes preserved the issue “encourages a ‘double-or-nothing’ strategy in future cases,” whereby defendants “could strategically accept a single, all-or-nothing verdict with a general unanimity instruction on the alleged sexual assault, and, if convicted, argue on appeal that the conduct should have been considered discrete acts requiring specific unanimity.” But under the hypothetical circumstances just described—where there was no request for a specific- unanimity instruction—plain error review undoubtedly would apply. Here, by contrast, the record establishes that Keyes’s trial counsel requested a specific-unanimity instruction. The uncertainty in the record concerns the meaning of trial counsel’s remarks after the district court denied the request. 14 issue was not properly preserved. To determine whether the district court abused its discretion by failing to provide Keyes’s requested specific-unanimity jury instruction, we must first decide whether a defendant is entitled to such an instruction under Minnesota law. This requires us to examine the right to a unanimous jury and the scope of that right. A. The requirement for unanimous jury verdicts is rooted in two separate constitutional concerns. First, the United States Supreme Court has held that the Sixth Amendment right to a jury trial, as incorporated against the States by the Fourteenth Amendment, implicitly requires a jury’s verdict to be unanimous for felony offenses. Ramos v. Louisiana, 590 U.S. 83, 89–93 (2020); State v. Bey, 975 N.W.2d 511, 517 (Minn. 2022) (citing Ramos, 590 U.S. at 89–90). Indeed, according to the Supreme Court, the right to a unanimous jury is “fundamental to the American scheme of justice.” See Ramos, 590 U.S. at 93 (citation omitted) (internal quotation marks omitted); see also Am. Pub. Co. v. Fisher, 166 U.S. 464, 468 (1897) (explaining that “unanimity was one of the peculiar and essential features of trial by jury at the common law”). The Court recently confirmed that the jury unanimity requirement applies equally to both federal and state felony prosecutions. Ramos, 590 U.S. at 93. Second, the requirement for jury unanimity safeguards the due process requirement for proof beyond a reasonable doubt of every element of an offense. See In re Winship, 397 U.S. 358, 363–64 (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”). The requirement for unanimity does not just apply to a jury’s 15 ultimate verdict in a felony case. Juries also must unanimously agree that the government has proven each element of an offense. Richardson v. United States, 526 U.S. 813, 817 (1999); State v. Pendleton, 725 N.W.2d 717, 730–31 (Minn. 2007). The Minnesota Constitution likewise includes the right to an impartial jury in criminal cases, see Minn. Const. art. I, § 6, and a right to due process, see Minn. Const. art. I, § 7. Although we have historically relied on federal case law in considering plain error challenges that implicate the constitutional requirement for jury unanimity, see, e.g., State v. Ihle, 640 N.W.2d 910, 917–19 (Minn. 2002) (applying federal case law), we have expressly incorporated a requirement for jury unanimity into our criminal procedure rules. See Minn. R. Crim. P. 26.01, subd. 1(5). B. At issue here is the role that the unanimity requirement plays in safeguarding a criminal defendant’s due process right to proof beyond a reasonable doubt of every element of a charged offense. To better understand the scope of the unanimity requirement in this context—which we refer to as specific unanimity—we turn to the case law, beginning with the decisions of the United States Supreme Court. The Supreme Court has addressed the constitutional right to jury unanimity as an enforcement mechanism for due process in two leading decisions, Schad v. Arizona, 501 U.S. 624 (1991), abrogated on other grounds by Ramos v. Louisiana, 590 U.S. 83 (2020), and Richardson v. United States, 526 U.S. 813 (1999). In these decisions, the Supreme Court identified the contours of the unanimity requirement by distinguishing 16 between the “means” of committing an offense (for which jury unanimity is not required) and the “elements” of an offense (for which jury unanimity is required). In Schad, which is a plurality opinion,7 the Supreme Court held that the constitutional jury unanimity requirement does not apply to the “means” of committing an offense. Schad, 501 U.S. at 631–632. The defendant in Schad was charged with committing first-degree murder, which under Arizona law could be either premeditated murder or felony murder. Id. at 627–28. At trial, the prosecutor presented two theories to the jury—that the evidence was consistent with both premeditated murder and felony murder committed during a robbery. Id. at 629. The trial court instructed the jury that both “murder which is the result of premeditation” and “[m]urder which is committed in the attempt to commit robbery” constituted the offense of first-degree murder. Id. at 629. Although the trial court instructed the jury on the general requirement for unanimity, it did not instruct the jury that it had to unanimously agree on which type of first-degree murder the defendant committed. Id. The jury found the defendant guilty of first-degree murder. Id. On appeal, the defendant argued that the jury instructions violated his constitutional right to a unanimous jury verdict. Id. at 630. The Schad plurality affirmed the defendant’s conviction. It noted that “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Id. at 632 (citation omitted) (internal quotation marks omitted). The 7 While Schad did not produce a majority opinion, the plurality opinion’s reasoning was later relied on in a majority opinion of the United States Supreme Court and several opinions of this court. See Richardson, 526 U.S. at 817 (citing Schad); see also, e.g., State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn. 2001) (citing Schad). 17 plurality analogized this question to the “long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.” Id. at 631. It observed that, under federal criminal procedure rules, an indictment can allege that the means the defendant used to commit an offense are unknown or that one or more means were used. Id. at 631 (citing Fed. R. Crim. P. 7(c)(1)). The plurality further reasoned that the Supreme Court had “never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone,” and that “[i]n these cases, as in litigation generally, different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.” Id. at 631–32 (citation omitted) (internal quotation marks omitted). According to the plurality, this was equally true for alternative means of proving the required actus reus as the required mens rea, which was at issue in Schad. Id. at 632. The Schad plurality recognized, however, that due process may limit the capacity of states to define different conduct as “merely alternative means of committing a single offense.” Id. It identified this limit as the “axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning.” Id. As an example of a statute that would violate this principle, the plurality posited that due process would not “permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.” Id. at 632–33. The plurality did not 18 announce a rule to determine when a statute identifying alternative means for committing a crime would offend due process. See id. at 637. But it concluded that, under the facts presented, “the jury’s options … did not fall beyond the constitutional bounds of fundamental fairness and rationality.”8 Id. at 645. Eight years later, the Supreme Court decided Richardson, where it addressed the requirement for jury unanimity as to the elements of an offense. 526 U.S. at 816–17. The defendant in Richardson was convicted under a federal statute that prohibited “engag[ing] in a continuing criminal enterprise.” Id. at 815 (alteration in original) (quoting 21 U.S.C. § 848(a)). A “continuing criminal enterprise” was defined as a violation of a law that was “part of a continuing series of violations.” Id. (quoting 21 U.S.C. § 848(c)). To conclude that the defendant had committed a continuing series of violations, the trial court instructed the jury that it had to “unanimously agree that the defendant committed at least three federal narcotics offenses.” Id. at 816. But the trial court further instructed the jury that jurors did not “have to agree as to the particular three or more federal narcotics offenses committed by the defendant.” Id. (emphasis added). Following his conviction for engaging in a continuing criminal enterprise, the defendant appealed, arguing that the trial court’s jury instruction advising that unanimity was not required as to the specific underlying offenses violated his right to a unanimous jury verdict. Id. at 816–17. 8 In Schad, the plurality stated that a “state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict.” 501 U.S. at 634 n.5. Subsequently, in Edwards v. Vannoy, the Supreme Court recognized that this statement in Schad was no longer good law given the Supreme Court’s decision in Ramos, which held that the unanimity requirement applies to state court prosecutions. Edwards, 593 U.S. 255, 265–66, 265 n.4 (2021) (citing Schad, 501 U.S. at 634 n.5). 19 According to the defendant, each underlying offense or “violation” was a separate element of the offense for which unanimity was required. Id. The government responded that the series of violations, and not the individual violations, was the element of the offense. Id. at 817–18. To determine whether the trial court erred in its jury instruction, the Supreme Court addressed two distinct but related questions. The first question was whether the statutory phrase “series of violations” created a single offense element. 526 U.S. at 817. The second question was whether—if the statutory phrase created multiple offense elements (one for each underlying federal narcotics violation)—the jurors needed to unanimously agree that the defendant committed each of the underlying violations. Id. at 817–18. These questions were significant because, the Supreme Court observed, “[c]alling a particular kind of fact an ‘element’ carries certain legal consequences,” namely, “that a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element.” Id. at 817. The Supreme Court distinguished between “means” for committing an element of a crime and the “elements” of a crime. Id. It recognized that a jury “need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.” Id. However, unanimity is required for the elements of a crime. Id. To determine whether the trial court’s instruction regarding the underlying offenses forming the criminal enterprise implicated the jury unanimity requirement, the Supreme Court examined the federal statute defining the offense. Id. at 817–18. The Supreme 20 Court looked to the statutory language to decide whether the underlying offenses were “means” or “elements.” Id. at 818. Based on the language of the statute, which used the words “violates” and “violations” to describe the underlying offenses, the Supreme Court concluded that these were separate elements of the charged offense of continuing criminal enterprise.9 Id. at 818–19. Put differently, the Court answered the first question—whether the statutory phrase “series of violations” created a single offense element—in the negative. The Supreme Court was persuaded that the words “violate” and “violations” in the statute suggested that the underlying offenses were completed criminal offenses. Id. at 818–19. Turning to the second question, the Supreme Court determined that the individual violations were separate elements for which unanimity was required. Id. The Supreme Court thus concluded that the trial court’s jury instruction, which did not require unanimity as to the underlying offenses, was erroneous. Id. at 824. 9 Federal courts have concluded that the Supreme Court in Richardson altered the substantive elements of the offense in question when it held that the underlying federal narcotics violations were separate elements of the charged offense of continuing criminal enterprise, such that this substantive c