Jury Need Not Be Unanimous About Which of Defendant’s Multiple Acts Constituted Single Count of Domestic Assault.

State v. Dalbec, Minn.Ct.App., 10/19/2010.  A jury convicted Mr. Dalbec of gross misdemeanor domestic assault of his fiancée, S.M., (at least at the time).  Here’s what he may have done, may because the jury really didn’t say very precisely, over a roughly twenty-four hour period of time. 

First Episode:  He pulled the mattress off the bed, dumping S.M. onto the floor; he pushed her into a filing cabinet; he pushed her a second time; he tossed her through a doorway. 

Second Episode many hours later:  Mr. Dalbec pushed S.M. out of the way as he came into their apartment; he grabbed her phone and broke it; he kicked in the door after he briefly left (which gave S.M. enough time to bolt the door); he pushed S.M. around the apartment some more.  Mr. Dalbec left.

Third Episode again hours later:  Mr. Dalbec forced open the bedroom door behind which S.M. was trying to keep him out.

Now, without objection, the jury instructions rolled all this into one package, which included all three ways in which one may commit an assault in Minnesota:  an act committed with intent to cause fear of immediate bodily harm; the infliction of bodily harm; or the attempt to inflict bodily harm.  On appeal, Mr. Dalbec suggested that this was plain error, that the jury should have been instructed that it had to unanimously agree on which of several acts constituted the assault.

The appellate court says, no.  The element in question here is the assault.  So long as the jury agrees that Mr. Dalbec intended to assault S.M., the means by which he accomplished it was of no consequence, at least under the single charge brought against him.  (In fact, the appellate court thought that Mr. Dalbec got a break because the state did not charge him with separate counts of assault.)  The court does point out that if the defense to the various separate acts had been inconsistent with each other, then there might be a problem.  It cites in State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001).  In that case the state charged a single count of possession of narcotics, in support of which it offered evidence of two independent events.  In one event, police found narcotics at defendant’s workplace; in the other they found narcotics in a truck in which he had been a passenger.