This opinion will be unpublished and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

A14-1545

State of Minnesota,

Respondent,

vs.

Thomas James Mitchell,

Appellant.

Filed September 28, 2015

Affirmed

Larkin, Judge

Stearns County District Court

File No. 73-CR-13-1419

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, 

Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Chutich, 

Judge. 
2

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

LARKIN, Judge

A jury found appellant guilty of terroristic threats, possession of a firearm by an 

ineligible person, and two controlled-substance crimes. Appellant challenges his 

convictions, arguing that: (1) a search warrant for his home was not supported by 

probable cause and the search exceeded the scope of the warrant, (2) the district court 

violated his right to present a complete defense by precluding him from arguing that the 

state misled him to believe that his right to possess a firearm had been restored, (3) the 

district court abused its discretion by admitting an out-of-court statement from the victim 

as a prior consistent statement, and (4) the district court plainly erred by failing to instruct 

the jury that it must unanimously decide which of the appellant’s acts constituted a 

terroristic threat. We affirm.

FACTS

In February 2013, St. Cloud police officers responded to a dispute at the home of 

appellant Thomas James Mitchell, which involved T.Y. According to T.Y., she and 

Mitchell had been arguing when Mitchell took a crossbow off the wall, attempted to load 

it, and pointed it at her. T.Y. stated that Mitchell dragged her by her hair, pushed her to 

the ground, and held her head down in a manner that prevented her from breathing. 

When T.Y. attempted to fight back, Mitchell threatened to break her neck and to kill her. 

The officers arrested Mitchell for domestic assault and transported him to jail.

That evening, the police obtained a warrant to search Mitchell’s home for:

 Items showing residency and/or occupancy.
3

 Any and all crossbows.

 Documents including but not limited to receipts, operator 

manuals, and/or warranty information regarding the purchase 

and/or possession of crossbow and/or crossbow accessories.

 Any and all crossbow arrows/ammunition.

During the ensuing search, officers seized the crossbow. They also observed

drugs and drug paraphernalia. Based on that observation, the police obtained a second 

search warrant to search the home for drugs and drug paraphernalia. Officers executed 

the second search warrant and seized a pellet gun, suspected methamphetamine and 

marijuana, a drug pipe, and miscellaneous firearm ammunition. During a subsequent 

police interview, T.Y. described a “hidden room” in Mitchell’s residence. Officers

obtained and executed a third search warrant based on that information. They seized

equipment related to a controlled-substance grow operation.

The state charged Mitchell with domestic assault by strangulation, terroristic 

threats, second-degree possession of a controlled substance, fifth-degree possession of a 

controlled substance, and possession of a firearm (the pellet gun) by an ineligible person. 

The firearm-possession charge was predicated on Mitchell’s 1992 conviction of a firstdegree controlled-substance crime. 

Mitchell moved to suppress all of the evidence obtained during the searches of his 

home, arguing that the search warrants were not supported by probable cause and that the 

officers’ searches exceeded the scope of the warrants. The district court denied 

Mitchell’s motion.

On the morning of trial, the district court addressed a defense motion to dismiss 

the firearm-possession charge on the basis that the probation order from his disqualifying 
4

offense misled him to believe that his right to possess firearms had been restored. The 

district court denied the motion and did not allow Mitchell to present a defense based on 

the probation order, but the district court received a copy of the probation order as a court 

exhibit.

At trial, the state offered an audio recording and transcript of a police interview of

T.Y., which includes the following exchange:

Q. Okay alright um does [Mitchell] have access to a gun?

A. Yes.

Q. Is that in the residence?

A. Um there used to be one there[.] I’m not sure if there still 

is now. He . . . owns three houses.

. . . .

Q. Okay do you know what kind of gun it is?

A. No I don’t. . . . I know he has a handgun and a rifle . . . . 

The handgun I used to use but I think I wanna say . . . it looks 

like a—well there’s like three different sizes. I don’t know 

guns really well but like . . . an older gun.

Mitchell objected to T.Y.’s interview as hearsay. The district court ruled that the 

interview was admissible as a prior consistent statement, and the audio recording was 

played for the jurors. Mitchell later moved for a mistrial based on the admission of 

T.Y.’s statement, arguing that the statement was inadmissible. The district court denied 

the motion. Mitchell turned down the district court’s offer to strike the contested portion 

of T.Y.’s statement and to provide a curative instruction. But at Mitchell’s request, the 

district court added a final jury instruction that Mitchell was “not being tried for and may 

not be convicted of any behavior other than the charged offenses” and that the jury was 

“not to convict [him] on the basis of conduct on another occasion.”
5

The jury found Mitchell not guilty of domestic assault by strangulation but guilty 

of terroristic threats, second-degree possession of a controlled substance, fifth-degree 

possession of a controlled substance, and possession of a firearm by an ineligible person. 

Mitchell moved for a judgment of acquittal on the firearm-possession offense, arguing 

that the district court violated his right to due process by preventing him from introducing 

evidence regarding his disqualifying conviction. Mitchell also moved for a new trial, 

reiterating his challenges to the searches of his house. The district court denied 

Mitchell’s motions and sentenced him to serve 67 months in prison.

Mitchell appeals.

D E C I S I O N

I.

Mitchell challenges the validity and execution of the first search warrant, adding

that because the first search was invalid, the district court should have suppressed the 

evidence obtained during the second and third searches. See State v. Olson, 634 N.W.2d 

224, 229 (Minn. App. 2001) (“[E]vidence discovered by exploiting previous illegal 

[police] conduct is inadmissible.”), review denied (Minn. Dec. 11, 2001). 

The United States and Minnesota Constitutions provide that no warrant shall issue 

without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. 

Generally, a search is lawful only if it is executed pursuant to a valid search warrant 

issued by a neutral and detached magistrate after a finding of probable cause. See Minn.

Stat. § 626.08 (2012); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). 
6

“When determining whether a search warrant is supported by probable cause, we 

do not engage in a de novo review.” State v. McGrath, 706 N.W.2d 532, 539 (Minn.

App. 2005), review denied (Minn. Feb. 22, 2006). Instead, we “afford the district court’s 

determination great deference.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). 

This court limits its “review to ensuring that the issuing judge had a substantial basis for 

concluding that probable cause existed.” McGrath, 706 N.W.2d at 539. In doing so, we 

examine the totality of the circumstances. State v. Holiday, 749 N.W.2d 833, 839 (Minn.

App. 2008).

The task of the issuing [judge] is simply to make a practical, 

common-sense decision whether, given all the circumstances 

set forth in the affidavit before him, including the “veracity” 

and “basis of knowledge” of persons supplying hearsay 

information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 

213, 238, 103 S. Ct. 2317, 2332 (1983)).

“[C]ourts must be careful not to review each component of the affidavit in 

isolation.” Id. “[A] collection of pieces of information that would not be substantial 

alone can combine to create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11 

(Minn. 2004). “Furthermore, the resolution of doubtful or marginal cases should be 

largely determined by the preference to be accorded warrants.” Wiley, 366 N.W.2d at 

268 (quotation omitted).

The first search warrant authorized the police to search Mitchell’s house for 

“[i]tems showing residency and/or occupancy” and “[d]ocuments, including but not 
7

limited to receipts, operator manuals, and/or warranty information regarding the purchase 

and/or possession of crossbow and/or crossbow accessories.” Mitchell argues that the 

supporting affidavit “does not state any reason or rationale” in support of its request to 

search for those items and that there is no nexus between the crimes that were being 

investigated and the documents. Essentially, Mitchell argues that the documents at issue 

were not contraband or evidence of crime and there was not probable cause to search for 

those items.

1

 We disagree.

One element of domestic assault by strangulation is that the defendant and the 

victim were family or household members. Minn. Stat. § 609.2247, subd. 2 (2012). 

“Family or household members” include “persons who are presently residing together or 

who have resided together in the past.” Minn. Stat. § 518B.01, subd. 2(b)(4) (2012). 

Items showing Mitchell’s residency or occupancy could show that Mitchell and T.Y. 

were residing or had resided together and therefore constitute evidence of a crime. 

Moreover, documents establishing Mitchell’s ownership of the crossbow and ammunition 

could corroborate T.Y.’s statements that Mitchell used the crossbow during the domesticassault and terroristic-threats offenses. The crossbow documents therefore could also be 

evidence of a crime. The issuing judge did not err by concluding that there was probable 

 

1 Mitchell addresses the “nexus” between the crimes being investigated and the evidence 

sought. However, “nexus” in the search-warrant context typically refers to the 

connection between the evidence sought and the place to be searched. See, e.g., State v. 

Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014) (“A sufficient ‘nexus’ must be 

established between the evidence sought and the place to be searched.”). Mitchell does 

not argue that the evidence listed in the search warrant was unlikely to be found in his 

home. 
8

cause to search Mitchell’s home for the residency or occupancy items and crossbow 

documents.

Mitchell also contends that the officers’ first search exceeded the scope of the 

warrant. Mitchell argues that the officers unreasonably “expand[ed] the scope of the 

search for documents showing ownership of the crossbow or occupancy to [a] child’s 

bedroom” and that “it was not reasonable to believe these items might also be found in a 

child’s room.” Mitchell further argues that “[b]ecause the expansion of the search to the 

child’s room was not reasonable, the controlled substances and money found in the 

child’s room, which formed the basis for issuance of the second search warrant, should 

have [been] suppressed.”

“A search pursuant to a warrant may not exceed the scope of that warrant.” State 

v. Soua Thao Yang, 352 N.W.2d 127, 129 (Minn. App. 1984). “The test for determining 

whether a search has exceeded the scope of the warrant is one of reasonableness.” Id. To 

determine whether the conduct of an officer executing a search warrant was reasonable, 

appellate courts consider the totality of the circumstances. State v. Thisius, 281 N.W.2d 

645, 645-46 (Minn. 1978). “[A] search is limited in scope to those areas where one 

would reasonably expect to find the items identified in the search warrant.” State v. 

Mollberg, 310 Minn. 376, 383, 246 N.W.2d 463, 468 (1976). And “any container 

situated within a residence that is the subject of a validly-issued warrant may be searched 

if it is reasonable to believe that the container could conceal items of the kind portrayed 

in the warrant.” State v. Wills, 524 N.W.2d 507, 509 (Minn. App. 1994), review denied

(Minn. Feb. 14, 1995). We review de novo the issue of whether a search exceeded the 
9

scope of the warrant. See id. at 509-12 (reviewing de novo the issue of whether a search 

exceeded the scope of a warrant).

As determined above, the officers had a valid warrant to search for documents 

regarding occupancy, residency, or ownership of the crossbow and ammunition. They 

therefore were authorized to search all areas inside Mitchell’s house where one would 

reasonably expect to find those documents, including any containers that could conceal 

the documents. See Mollberg, 310 Minn. at 383, 246 N.W.2d at 468; Wills, 524 N.W.2d 

at 509. Mitchell takes issue with the officers’ search of a cabinet in a child’s bedroom. 

Although it may be a close case, an investigating police officer charged by warrant to 

search anywhere specified documents might reasonably be found would search for them 

in a home’s cabinets. And because organizational practices vary in wide extremes from 

home to home, the officer has no constitutional obligation to exclude a cabinet simply 

because it is located in a child’s room. The officers in this case therefore did not exceed 

the scope of the first search warrant by searching in the child’s bedroom.

In sum, the issuing judge had a substantial basis to conclude that there was 

probable cause for the first search warrant, and the officers did not exceed the scope of 

the warrant during its execution. Because the first search was constitutional, we do not 

consider Mitchell’s argument that items seized during the second and third searches must 

be suppressed as the tainted result of the first search.

II.

Mitchell contends that the district court denied him a meaningful opportunity to 

present a complete defense to the charge of possession of a firearm by an ineligible 
10

person. Under the Due Process Clauses of the United States and Minnesota 

Constitutions, a criminal defendant is “afforded a meaningful opportunity to present a 

complete defense.” State v. Quick, 659 N.W.2d 701, 712 (Minn. 2003) (quotations 

omitted). But “a defendant has no right to introduce evidence that either is irrelevant, or 

whose prejudicial effect outweighs its probative value.” State v. Crims, 540 N.W.2d 860, 

866 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). Evidence is relevant when 

it has “any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Minn. R. Evid. 401. Irrelevant evidence is inadmissible. Minn. R. Evid. 402. 

“Evidentiary rulings rest within the sound discretion of the [district] court and will 

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the 

burden of establishing that the [district] court abused its discretion and that appellant was 

thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation 

omitted). Even when it is claimed that the exclusion of evidence deprived a criminal 

defendant of his or her constitutional right to present a complete defense, we review the 

ruling under the abuse-of-discretion standard. State v. Penkaty, 708 N.W.2d 185, 201 

(Minn. 2006).

The firearm-possession charge was predicated on Mitchell’s 1992 conviction of a 

first-degree controlled-substance crime. The probation order from that case states: “Any 

person convicted of a felony loses his civil rights, including the right to vote in this state 

and the right to hold public office until the stay of sentence expires.” Mitchell offered the 

probation order as evidence that the state misled him to believe he could possess a 
11

firearm. Mitchell argues that the probation order was relevant because it would allow the 

jury to “evaluate the reasonableness of [his] reliance on the order.”

“Due process prohibits state representatives from misleading individuals as to their 

legal obligations.” Whitten v. State, 690 N.W.2d 561, 565 (Minn. App. 2005). “A person 

has the right to rely on the promises of a government representative and may follow the 

advice or instructions of the representative, even if the advice is a misstatement of the 

law.” Id. at 566. Accordingly, “[t]he state cannot indicate that a person has the right to 

possess firearms when all his civil rights are reinstated, tell him all his civil rights are 

reinstated, and then tell him that he should have known he could not possess a firearm.” 

Id.

Mitchell relies solely on the probation order from his 1992 conviction to argue that 

the state misled him. But the order does not indicate that Mitchell’s rights had been 

restored or that Mitchell could possess firearms; it merely states that his civil rights were 

lost “until the stay of sentence expires.” In Whitten, this court reversed a defendant’s 

conviction of unlawful possession of a firearm because the district court had given him a 

discharge order stating that his civil rights were restored and did not check a box 

indicating that the defendant could not possess a firearm for another ten years. Id. at 565-

66. Unlike the discharge order in Whitten, the probation order here does not indicate that 

Mitchell’s civil rights had been restored or that he could lawfully possess a firearm. 

Because the probation order does not tend to establish that the state misled Mitchell 

regarding his ability to lawfully possess firearms, it was not relevant to his defense theory 

and the district court did not err by excluding it from evidence. See Minn. R. Evid. 401. 
12

Nor did the district court violate Mitchell’s constitutional right to present a complete 

defense.

III.

Mitchell contends that the district court erred by admitting T.Y.’s statement to 

police that he had access to a gun, specifically, “a handgun and a rifle.” Mitchell argues 

that the statement was inadmissible hearsay. We review the district court’s evidentiary 

ruling for an abuse of discretion. See Amos, 658 N.W.2d at 203.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. 

R. Evid. 801(c). Hearsay is generally inadmissible. Minn. R. Evid. 802. A statement is 

not hearsay if (1) “the declarant testifies at the trial . . . and is subject to crossexamination concerning the statement” and (2) “the statement is . . . consistent with the 

declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s 

credibility as a witness.” Minn. R. Evid. 801(d)(1), (d)(1)(B). The district court ruled 

that T.Y.’s statement was admissible as a prior consistent statement.

Before admitting evidence of a prior consistent statement, the district court must 

determine whether the prior statement is in fact consistent with trial testimony. State v. 

Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000). 

“[W]hen a witness’ prior statement contains assertions about events that have not been 

described by the witness in trial testimony, those assertions are not helpful in supporting 

the credibility of the witness and are not admissible under this rule.” Minn. R. Evid. 801 

1989 comm. cmt. 
13

Mitchell argues that T.Y.’s out-of-court statement was not consistent with her trial 

testimony because T.Y. never testified that Mitchell owned or had access to firearms. 

The state argues that Mitchell failed to properly object to T.Y.’s statement and that this 

court therefore should review for plain error. For the purpose of our analysis, we assume 

that Mitchell properly objected to the statement and that the statement was inadmissible 

hearsay. The evidentiary ruling therefore warrants reversal only if Mitchell can establish 

prejudice. See Bakken, 604 N.W.2d at 110 (“[E]ven if a trial court errs in an evidentiary 

ruling, we will not reverse unless the error substantially influenced the jury to convict.”).

Mitchell contends that there is a reasonable probability that T.Y.’s statement 

regarding his possession of guns significantly affected the verdict. Mitchell argues that 

“a reasonable jury may have relied upon [T.Y.’s] statement that Mitchell has multiple 

firearms to find him guilty of ineligible possession of a firearm.” But the firearmpossession charge was based on the pellet gun that the police found in Mitchell’s home

during the second search, and not on the handgun or rifle that T.Y. referred to in her 

statement. Accordingly, the prosecutor did not refer to T.Y.’s statement regarding 

Mitchell’s guns, a handgun, or a rifle in her closing argument. Mitchell’s defense 

attorney, on the other hand, mentioned those subjects, telling the jury, “[Mitchell] is not 

on trial for possession of any handgun or any rifle. He’s on trial for possession of that 

BB gun.” And, as Mitchell points out, “[t]here was no other evidence to corroborate 

[T.Y.’s statement].” Moreover, the district court instructed the jury, at Mitchell’s request, 

that it was not to find Mitchell guilty based on any actions other than those described in 

the complaint. We assume that the jurors followed that instruction. See State v. Taylor, 
14

650 N.W.2d 190, 207 (Minn. 2002) (stating that appellate courts “presume the jury 

followed the [district] court’s instructions”).

In sum, Mitchell fails to demonstrate that admission of T.Y.’s statement was 

prejudicial. The district court’s ruling therefore does not provide a basis to reverse.

IV.

Mitchell contends that the district court plainly erred by failing to provide a 

“specific unanimity instruction” regarding his terroristic-threats charge. Mitchell did not 

object to the alleged error at trial.

“A defendant’s failure to propose specific jury instructions or to object to 

instructions before they are given to the jury generally constitutes a waiver of the right to 

appeal” any error in the instructions. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). 

Nonetheless, “a failure to object will not cause an appeal to fail if the instructions contain 

plain error affecting substantial rights or an error of fundamental law.” Id.; see also State 

v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). We therefore review for plain error. 

See Minn. R. Crim. P. 31.02.

Under the plain-error test, this court will not grant relief unless (1) there is an 

error, (2) the error is plain, and (3) the error affected the defendant’s substantial rights. 

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An error is “plain” if it is clear or 

obvious under current law, State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) 

(quotation omitted), and an error is clear or obvious if it “contravenes case law, a rule, or 

a standard of conduct,” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If the first 

three requirements of the plain-error test are satisfied, this court then considers whether 
15

the error “seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation 

omitted).

Minnesota requires unanimous jury verdicts in all criminal cases. Minn. R. Crim. 

P. 26.01, subd. 1(5); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review 

denied (Minn. Jan. 16, 1992). Jurors must unanimously agree regarding which alleged

acts the defendant committed if each act itself constitutes an element of the charged 

crime. State v. Rucker, 752 N.W.2d 538, 548 (Minn. App. 2008), review denied (Minn. 

Sept. 23, 2008); State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001). “Where jury 

instructions allow for possible significant disagreement among jurors as to what acts the 

defendant committed, the instructions violate the defendant’s right to a unanimous 

verdict.” Stempf, 627 N.W.2d at 354.

“But the jury does not have to unanimously agree on the facts underlying an 

element of a crime in all cases,” State v. Pendleton, 725 N.W.2d 717, 731 (Minn. 2007), 

and “unanimity is not required with respect to the alternative means or ways in which the 

crime can be committed,” State v. Begbie, 415 N.W.2d 103, 106 (Minn. App. 1987) 

(quotation omitted), review denied (Minn. Jan. 20, 1988). Thus, “the jury need not 

always decide unanimously which of several possible means the defendant used to 

commit the offense in order to conclude that an element has been proved beyond a 

reasonable doubt.” State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002).

Minnesota courts have “recognized the distinction between the basic elements of 

the crime and the facts underlying those basic elements.” State v. Hager, 727 N.W.2d 
16

668, 674 (Minn. App. 2007) (citing Pendleton, 725 N.W.2d at 731). “The Pendleton

analysis limits the unanimous verdict requirement to situations where the offenses of the 

accused are inherently separate and juror confusion or disagreement would deny the 

accused due process.” Id. “The cases across the country . . . recognize and note that it is 

sufficient that all jurors unanimously agree on their ultimate conclusion that the 

defendant was guilty of the crime charged, though they may not agree on the manner in 

which the defendant participated in the crime.” Begbie, 415 N.W.2d at 106 (quotation 

omitted).

In her closing argument, the prosecutor stated that Mitchell made “a series of 

threats that all fit” the elements of the state’s single terroristic-threats charge. The 

prosecutor highlighted three allegations: (1) that Mitchell loaded the crossbow and 

pointed it at T.Y., (2) that Mitchell stated that he would break T.Y.’s neck if she tried to 

fight back, and (3) that Mitchell stated to T.Y. while he made the 911 call: “When I get 

out, do you know what’s going to happen to you and your family?” Mitchell argues that 

the district court erred by not giving a specific unanimity instruction for his terroristicthreats charge because “the state presented three different factual scenarios as possible 

bases for the conviction.” 

Although Mitchell argues that the district court erred, he does not explain how that 

error was clear or obvious under current law. In fact, the only case Mitchell cites in 

support of his argument is Stempf, and that case is readily distinguishable.2

 

2 Mitchell also relies on State v. Wenthe, in which this court concluded that the district 

court violated the defendant’s right to a unanimous verdict by failing to give a specific-
17

In Stempf, “the state charged [the defendant] with only one count of [controlledsubstance] possession but alleged two distinct acts to support a conviction: (1) that he 

possessed methamphetamine . . . at . . . his workplace; and (2) that he possessed 

methamphetamine found in the truck in which he was riding when he arrived at work.” 

627 N.W.2d at 357. The district court denied the defendant’s request for a specificunanimity instruction requiring the jury to agree regarding which of the two acts he 

committed. Id. at 357-58. In closing argument, “the state told the jury it could convict if 

some jurors believed [the defendant] possessed the methamphetamine found [at the 

workplace] while others believed he possessed the methamphetamine found in the truck.” 

Id. at 358. On appeal, this court concluded that the district court violated the defendant’s 

right to a unanimous verdict by refusing to give a specific-unanimity instruction. Id. We 

noted that “[t]he two acts of possession did not constitute a single act,” the defendant 

“presented different defenses for each alleged act of possession,” and “[t]he acts occurred 

in different places and at different times.” Id.

The reasons for finding error in Stempf do not apply here. Mitchell’s threats 

amount to a single act: they occurred in the same place at the same time, in succession, 

during an escalating fight between Mitchell and T.Y., which began in an upstairs 

 

unanimity instruction. 845 N.W.2d 222, 228-31 (Minn. App. 2014). However, the 

supreme court recently reversed Wenthe, concluding that it was not reasonably likely that 

the lack of a specific-unanimity instruction affected the defendant’s substantial rights. 

State v. Wenthe, 865 N.W.2d 293, 301 (Minn. 2015). In doing so, the supreme court did 

not decide whether the district court erred by omitting a specific-unanimity instruction. 

Id. at 299.
18

bedroom, moved downstairs, and ended with T.Y. outside the front door and Mitchell 

yelling from inside. 

Contrary to Mitchell’s argument, Stempf does not support the conclusion that a 

specific-unanimity instruction was required in this case. This appears to be a case in 

which the jury merely could have disagreed regarding the alternative ways in which the 

crime of terroristic threats was committed. See Begbie, 415 N.W.2d at 106 (“It is 

sufficient that all jurors unanimously agreed on their ultimate conclusion that [the 

defendant] was guilty of [terroristic threats], even though they may not have agreed upon 

exactly which victim [he] had intended to terrorize.”). Thus, Mitchell has not 

demonstrated that the district court plainly erred by failing to sua sponte provide the jury 

with a specific-unanimity instruction. He therefore is not entitled to relief under the 

plain-error standard.

Affirmed.