One Charge, Two Acts, and Why the Jury Now Has to Pick: State v. Keyes

The short version

When the State charges one count but its evidence describes two distinct acts, either of which could independently prove that count, the jury has to agree on the specific act. A jury that splits — some members convinced by one act, some by the other — has not reached the unanimous verdict the Constitution requires. Under Keyes, the defendant is entitled to have the jury told that directly. That's a meaningful shift from how Minnesota's lower courts had been handling these cases.

What happened

The State charged Tracey Dee Keyes with first-degree criminal sexual conduct, among other offenses, arising out of a violent February 2022 incident. At trial, the complainant described two distinct acts of nonconsensual penetration in two rooms of her home over roughly a 45-minute span.

Keyes's attorney raised the idea of a specific-unanimity instruction — telling the jurors that if some believed one act occurred and others believed the other act occurred, that split would not be a unanimous verdict. The district court gave only the standard general-unanimity instruction (the boilerplate "your verdict must be unanimous"). The jury convicted, and Keyes was sentenced to 360 months.

The Court of Appeals affirmed, relying on the "single behavioral incident" framework Minnesota's intermediate court had used since State v. Infante in 2011: because the acts were part of one continuous episode, no specific-unanimity instruction was required. The Supreme Court, in an opinion by Justice Gaïtas, reversed.

The new framework

The Court rejected the single-behavioral-incident test. Its objection was practical as much as legal: the test was hard to apply and produced wildly inconsistent results. As the Court noted, lower-court decisions had labeled everything from a 45-minute encounter to a nine-hour span with several separate incidents a single "behavioral incident." That's not a workable line.

In its place, the Court adopted a two-step, statute-based analysis — the approach Minnesota's court of appeals had used in Stempf, Lagred, and Epps, grounded in the U.S. Supreme Court's decisions in Schad v. Arizona and Richardson v. United States:

First, read the statute to identify the elements of the offense, separating any true "means" of committing an element from the elements themselves. Second, look at what the State actually alleged at trial and ask whether it presented one act or multiple distinct acts, each of which could independently satisfy those elements. If it's multiple distinct acts and the State charged a single count, a specific-unanimity instruction is required.

Applied to Keyes, the analysis was short. The element was nonconsensual sexual penetration. The State's own evidence described two separate acts of it, either of which alone could prove the charge. So the instruction was required, and denying it was an abuse of discretion.

Why Keyes got a new trial

Getting the instruction wrong isn't automatically reversible. The State still had a chance to show the error was harmless beyond a reasonable doubt — and it couldn't.

The reason came out of the defense's own trial strategy. Counsel had emphasized that the complainant described a second, separate act for the first time at trial, after earlier accounts. That created a real possibility that some jurors believed only one act occurred while others believed only the other — the exact split the instruction exists to prevent. With that possibility genuinely on the table, the Court could not be confident the verdict was truly unanimous. New trial on the first-degree criminal sexual conduct charges.

The dissent

The Court was divided. Justice Moore, joined by Justices McKeig and Hennesy, dissented, and the dissent is worth reading if you practice in this area.

On procedure, the dissent argued Keyes never properly preserved the issue — his counsel raised it, then said she would wait to see how the State's closing went, and never renewed the request or objected to the final instructions. Under that view, this was plain-error review, which Keyes could not satisfy. The dissent warned the majority's approach invites a "double-or-nothing" strategy: hold the objection, take your shot at acquittal, and raise the instruction on appeal if you lose.

On the merits, the dissent favored a more functional test borrowed from the "duplicity" line of cases — one asking whether the charging actually prejudiced the defendant, rather than reversing on a theoretical possibility of disagreement. It also raised a serious concern specific to criminal sexual conduct cases: victims often describe multiple acts within a single traumatic episode, and research on how trauma affects memory means details can shift. The majority acknowledged those concerns but concluded its clearer rule would be easier to apply and would ultimately produce fewer appeals and retrials.

What this means going forward

If you defend criminal cases in Minnesota, Keyes is a tool to use before the jury deliberates. Any time the State charges one count but the evidence describes more than one act that could carry that count on its own, the specific-unanimity instruction is now squarely on the table — and the way to preserve it is to request it clearly and make a clean record. The procedural lesson from this very case is not to raise it, soften it, and let it fade; ask for it and hold the objection.

If you're facing charges, the practical point is this: the State can't blur two separate acts together and rely on a divided jury still adding up to a conviction. When the evidence points to more than one act, the jurors have to agree on the specific one. That's a real protection, and it's the kind of detail that can decide a case.

The Court also gave trial judges sensible advice for the gray areas: when it's genuinely unclear whether there's one act or two, or an element versus a means, err toward giving the instruction. It costs the court little and it protects the verdict.

Key Terms

• Specific-unanimity instruction: An instruction telling the jury it must unanimously agree on the specific act that proves an element of the charged offense.
• General-unanimity instruction: The standard instruction that the verdict as a whole must be unanimous.
• Element vs. means: An "element" is something the jury must unanimously find; a "means" is one of several ways of satisfying an element, on which jurors need not agree.
• Harmless beyond a reasonable doubt: The standard the State must meet to preserve a conviction despite a constitutional instructional error.
• Single behavioral incident: The now-rejected framework that treated acts within one continuous episode as not requiring a specific-unanimity instruction.