This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-2014

State of Minnesota, 

Respondent, 

vs. 

Euric Ards, 

Appellant.

Filed December 5, 2016

Affirmed

Jesson, Judge

Ramsey County District Court

File No. 62-CR-15-3015

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas Ragatz, Assistant County Attorney, 

St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders Erickson, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Stauber, Judge; and Reyes, 

Judge. 

U N P U B L I S H E D O P I N I O N

JESSON, Judge

Appellant Euric Ards argues that the district court committed reversible error by 

failing to instruct the jury on unanimity and by entering judgments of conviction for both 
2

violating a domestic abuse no-contact order and violating an order for protection. Ards 

also raises several issues in a pro se supplemental brief. Because no specific unanimity 

instruction was required and both of Ards’s protective-order violation convictions are

permissible, and because Ards’s pro se arguments are without merit, we affirm.

FACTS

Ards was in a relationship with a woman, J.M.F., for approximately 17 years. They 

had at least one child together. According to J.M.F., the relationship deteriorated in recent 

years because of Ards’s drug use. In July 2014, J.M.F. obtained an order for protection 

against Ards. Then, in December 2014, a domestic abuse no-contact order was entered

against Ards for the protection of J.M.F. Ards was ordered to stay away from J.M.F.’s 

residence. 

In April 2015, Ards returned to Minnesota after spending several months in his

home state of Mississippi. Approximately one week after his return, on April 25, 2015, 

Ards came to J.M.F.’s residence in the early morning hours. J.M.F. saw Ards on her porch, 

and she called 911. Officers responded, but they were unable to find Ards. Through the 

course of that early morning, Ards kept coming back to J.M.F.’s house, apparently seeking 

to retrieve some personal property. Shortly after 9:00 a.m., J.M.F. called 911 because she 

saw Ards in her alley. During that call, J.M.F. said Ards was in her garage “tearing 

something up.” Police responded, and it was discovered that J.M.F.’s garage had been 

entered and her car windows broken. Officers were initially unable to locate Ards, but he 

was later apprehended at a different location. 
3

On April 27, 2015, Ards was charged with three crimes: (1) violating a domestic 

abuse no-contact order with prior qualified convictions; (2) violating an order for 

protection with prior qualified convictions; and (3) fourth-degree criminal damage to 

property. 

At trial, Ards denied being at J.M.F.’s residence on April 25, 2015. The jury found 

Ards guilty of all three charges. The district court adjudicated Ards guilty on all three 

counts, but, finding that the protective-order violations were part of a single course of 

conduct,1 only sentenced him on one of the protective-order violations. This appeal 

follows. 

D E C I S I O N

Three issues are presented in this case. First, Ards argues that the district court 

committed reversible plain error by not providing specific unanimity jury instructions. 

Second, Ards argues that the district court erred by convicting him of both violating a 

domestic abuse no-contact order and violating an order for protection. Third, Ards raises 

a number of pro se arguments. We address each issue in turn. 

 

1 While the district court utilized the phrase “single course of conduct,” we interpret its 

decision to refer to a “single behavioral incident” under Minn. Stat. § 609.035 (2014), 

which prohibits multiple sentences for conduct that “constitutes more than one offense.” 

See State v. Jones, 848 N.W.2d 528, 531 n.1 (Minn. 2014) (stating that “in the past, we 

have used the phrases ‘single course of conduct’ and ‘single behavioral incident’ 

interchangeably”).
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I. The district court did not commit plain error by failing to give specific 

unanimity jury instructions.

Ards argues the district court erred by not providing specific unanimity jury 

instructions, violating his right to a unanimous verdict. Ards asserts unanimity instructions 

were needed because the state presented evidence of three separate acts that could have 

satisfied the elements of the protective order charges: (1) Ards was at J.M.F.’s property 

around midnight; (2) Ards was at J.M.F.’s property around 6:45 a.m.; and (3) Ards was at 

J.M.F.’s property around 9:00 a.m.

The parties stipulated to the fact that Ards had two prior qualified domestic 

violence-related convictions within the previous ten years. To prove either charge as a 

felony, the state needed to prove only that there was an existing protective order, that Ards 

was aware of that order, and that he violated the terms of that order. See Minn. Stat. 

§§ 518B.01, subd. 14 (concerning violation of order for protection), 629.75, subd. 2 

(concerning violation of domestic abuse no-contact order) (2014).

2

 

A jury’s verdict must be unanimous in all criminal cases. Minn. R. Crim. P. 26.01, 

subd. 1(5). The jury must unanimously conclude that each element of an offense has been 

proven. State v. Pendleton, 725 N.W.2d 717, 730–31 (Minn. 2007). Though the jury must 

agree on the elements, the jury need not agree on the facts underlying those elements. Id.

at 731. If different courses of conduct are offered to prove an element, they must show 

“equivalent blameworthiness or culpability.” Id. (quotation omitted).

 

2 The state also had to prove venue was proper. Minn. Stat. § 627.01 (2014); State v. 

Ehmke, 752 N.W.2d 117, 120 (Minn. App. 2008). 
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Ards neither requested a specific unanimity instruction at trial nor objected to the 

jury instructions. A failure to propose specific jury instructions or object to instructions 

generally constitutes a forfeiture of that issue on appeal. State v. Cross, 577 N.W.2d 721, 

726 (Minn. 1998). But, even absent a failure to object, this court may still review the 

instructions for plain error that affects substantial rights or an error of fundamental law. 

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); see also State v. Gunderson, 812 

N.W.2d 156, 159 (Minn. App. 2012) (reviewing unobjected-to jury instructions for plain 

error). 

Under the plain-error test, this court examines the jury instructions to see if there 

was (1) error, (2) that was plain, and (3) that affected substantial rights. Gunderson, 812 

N.W.2d at 159. If the three prongs of the plain-error test are met, this court must then 

decide whether to remedy the error in order to ensure fairness and the integrity of the 

judicial proceedings. Griller, 583 N.W.2d at 740.

To support his argument that unanimity instructions were required in this case, Ards 

relies on State v. Stempf, 627 N.W.2d 352 (Minn. App. 2001). In Stempf, the defendant 

was charged with one count of possession of drugs, but the state alleged two distinct acts: 

(1) the defendant possessed drugs found at his workplace, and (2) the defendant possessed 

drugs found in a truck. Id. at 357. This court concluded that the defendant was deprived 

of his right to a unanimous verdict because the state did not elect which act of possession 

it relied on for the conviction, and the jurors may have disagreed on which act of possession 

constituted the crime. Id. at 358. This court further concluded that the two alleged acts 

lacked “unity of time and place” and were “separate and distinct culpable acts, either one 
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of which could support a conviction.” Id. at 358-59. This court therefore reversed and 

remanded because it was possible that the guilty verdict was not unanimous. Id. at 359.

This case differs from Stempf for two reasons. First, in Stempf the district court 

refused to give a specific unanimity instruction, even though one was requested. Id. at 357-

58. Here, Ards never requested a specific unanimity instruction. Second, in Stempf there 

were two separate acts of possession, and the defendant in Stempf offered different defenses 

for both, so the jury in Stempf could have reached different conclusions on each of those 

acts of possession. Id. at 358; see State v. Dalbec, 789 N.W.2d 508, 512 (Minn. App. 2010) 

(discussing Stempf), review denied (Minn. Dec. 22, 2010). Here, in contrast, Ards’s acts 

were part of a single behavioral incident, and Ards offered a single defense. 

Ards’s acts involved the same victim, J.M.F., and the same location, J.M.F.’s 

residence. During one 911 call, J.M.F. stated that Ards was intent on retrieving “his stuff,” 

and J.M.F. made a similar statement about Ards’s intent that day to police. Thus, it appears 

Ards had a single objective. Although the exact number of visits is unclear, Ards kept 

returning to J.M.F.’s residence that evening and morning. During one 911 call, J.M.F. 

stated that Ards had been “coming by all night.” As a result, Ards’s acts were part of a 

single behavioral incident because they repeatedly occurred over the course of 

approximately nine hours and involved the same victim, the same objective, and the same 

location. State v. Infante, 796 N.W.2d 349, 356-57 (Minn. App. 2011); see Dalbec, 789 

N.W.2d at 509-10 (holding district court did not err by failing to give unanimity instruction 

when defendant was charged with one count of assault for acts occurring over a 24–hour 

period). Further, upon the recommendation of the prosecutor, the protective-order 
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violations were sentenced by the district court as a single behavioral incident. If the 

protective-order violations had not been sentenced as a single behavioral incident, Ards 

could have potentially faced additional punishment. See Minn. Stat. § 609.035, subd. 1 

(barring multiple punishments for offenses committed as part of a single behavioral 

incident). 

Finally, Ards offered a single defense at trial: he denied being at J.M.F.’s residence 

on April 25, 2015. Unlike in Stempf, the jury in this case could not have reached different 

conclusions; the jury was forced to either believe Ards’s defense or reject it. In sum, there 

was no plain error because Ards never requested a specific unanimity instruction, and Ards

offered a single defense to refute a single behavioral incident. 

II. The district court did not err by adjudicating Ards guilty of both violating a 

domestic abuse no-contact order and violating an order for protection.

Ards argues that Minnesota Statutes section 609.04 (2014) bars his conviction for 

violating both a no-contact order and an order for protection because proving one violation

necessarily proves the other. Whether an offense constitutes an included offense is a legal 

question, which this court reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 

2012). 

In Minnesota, a person may not be convicted of both a “crime charged” and a second 

crime “necessarily proved if the crime charged were proved.” Minn. Stat. § 609.04, 

subd. 1. An analysis of the applicability of this rule involves looking to the elements of 

the crimes, not the particular facts of the case. State v. Bertsch, 707 N.W.2d 660, 664 

(Minn. 2006). 
8

Here, the two offenses contain different elements, with the differences based 

primarily on the distinct protective orders underlying each offense. The relevant elements 

of felony violation of an order for protection are as follows: (1) there was an existing court 

order for protection; (2) the defendant knew of the order; (3) the defendant violated a 

condition of the order; and (4) the defendant committed this crime within ten years of the 

first of two or more previous qualified domestic violence-related offense convictions. 

Minn. Stat. § 518B.01, subd. 14; 10 Minnesota Practice, CRIMJIG 13.56 (2016). The

relevant elements of felony violation of a domestic abuse no-contact order are as follows: 

(1) there was an existing court domestic abuse no-contact order; (2) the defendant knew of 

the order; (3) the defendant violated a condition of the order; and (4) the defendant 

committed this crime within ten years of the first of two or more previous qualified 

domestic violence-related offense convictions. Minn. Stat. § 629.75, subd. 2; 10 Minnesota 

Practice, CRIMJIG 13.56. Proper venue also needed to be proved for both offenses. 

Ehmke, 752 N.W.2d at 120. Because the two crimes rely on different underlying protective 

orders, proving one crime does not necessarily prove the other.

As a result, section 609.04 does not bar Ards’s protective-order convictions because 

the offenses have different elements, one offense is not a lesser degree of the other, and the 

offenses are contained in different criminal statutes. State v. Jackson, 363 N.W.2d 758, 

760 (Minn. 1985); see State v. Idowu, 272 N.W.2d 354, 354-55 (Minn. 1978) (holding that 

convictions for similar offenses with different elements arising out of same conduct was 

proper).
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III. There was sufficient evidence to convict Ards of the charged offenses, and 

the prosecutor’s statements during closing argument were proper.

In a pro se supplemental brief, Ards properly raises two issues that have not yet been 

addressed: (1) sufficiency of the evidence, and (2) improper statements by the prosecutor 

during closing argument. The other issues mentioned in the pro se brief are deemed 

forfeited. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (holding that 

issue was forfeited when appellant failed to develop any argument on appeal), review 

denied (Minn. Aug. 5, 1997).

Regarding sufficiency of the evidence, Ards asserts there were no witnesses. But

J.M.F. testified that she saw Ards on her porch, and she testified that he kept coming back 

to her house. Recordings of three 911 calls from J.M.F. were submitted into evidence; they 

indicated that Ards continued to return to J.M.F.’s property that day, and that Ards entered 

J.M.F.’s garage and damaged her car windows. Even under heightened scrutiny, the 

circumstances proved at trial appear consistent with Ards’s guilt and inconsistent with any 

other rational hypothesis. State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn. 2010). 

Finally, Ards argues the prosecutor’s statement that “reasonable doubt isn’t beyond 

all possibility of doubt and it’s not with absolute certainty” was improper. This argument 

is without merit. The prosecutor’s statements were consistent with Minnesota’s jury 

instruction on proof beyond a reasonable doubt, which states that proof beyond a 

reasonable doubt does not mean beyond all possibility of doubt. 10 Minnesota Practice,

CRIMJIG 3.03 (2016). Further, the prosecutor’s statement that absolute certainty was not 
10

required was proper because proof beyond a reasonable doubt does not require 

mathematical certainty. State v. Smith, 674 N.W.2d 398, 402-03 (Minn. 2004).

Affirmed.