ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Latriealle Wheat Gregory F. Zoeller

Angola, Indiana Attorney General of Indiana

Zachary J. Stock

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 17S04-1009-CR-500

ELMER D. BAKER,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

_________________________________

Appeal from the DeKalb Superior Court, No. 17D01-0607-FA-007

The Honorable Kirk D. Carpenter, Special Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 17A04-0905-CR-299

_________________________________

June 23, 2011

Rucker, Justice.
2

After a conviction for three counts of child molesting the defendant appealed contending, 

among other things, that his convictions must be vacated because they were not the product of a 

unanimous jury verdict. We granted transfer to explore this issue. 

Facts and Procedural History

On July 3, 2006 the State charged then fifty-nine-year-old Elmer Dean Baker with two 

counts of child molesting as Class A felonies. The victims of the alleged offenses were two of 

Baker‟s grandchildren, C.B. and J.A. And the offenses were alleged to have occurred in “June 

and July of 2003.” Appellant‟s App. at 11. After a jury trial in June of 2007 the trial court 

declared a mistrial when the jury could not reach a verdict. Thereafter the State sought leave to 

amend the charging information to reflect the time period “from October 2000 through August 

2003.” Appellant‟s App. at 76, 78. An additional count of child molesting as a Class C felony

was also added. The alleged victim was A.H., a cousin of C.B. who is unrelated to Baker. This 

offense was alleged to have occurred “in or about 2002.” Appellant‟s App. at 80. Baker was 

also alleged to be a habitual offender.

Over Baker‟s objection the trial court permitted the amendments. And a retrial began on 

August 13, 2008. Evidence presented by the State is summarized in part as follows: C.B, who 

was eighteen years of age at the time of trial, testified that she was born in September 1990, Tr. 

291; her cousin J.A. was born in December 1990, Tr. at 297; and that during the period between 

2000 and 2003 she, J.A., and A.H. were close friends. Tr. at 297-98. C.B. also testified that 

during that period of time her family lived at various locations in DeKalb County including 

houses and apartments in Spencerville, Auburn, and Garrett, Indiana. According to C.B., Baker 

first began touching her inappropriately when she was about nine or ten years old. Tr. at 318. 

Specifically C.B. recounted an incident in which she and J.A. spent the night at Baker‟s 

apartment in Auburn which was next door to her own home where she lived with her parents. 

J.A. and C.B. were first sleeping in the living room but became frightened for some reason and 

went into Baker‟s room to lie down on his bed. C.B. testified that at that point “he started to 

touch us and he pulled me on top of him. . . . He [ ] pretended like he was having sex with me 

but we had, like I had my underwear on. . . . He like touched our vaginas.” Tr. at 321. She went 
3

on to say, “He like placed my hand on his penis and made like the motion of masturbating.” Id.

at 322. 

When C.B. was ten or eleven years old Baker, who was a long distance truck driver, often 

took C.B. with him on overnight truck trips several weekends during the summer months of 2001 

and 2002. According to C.B. most of the “sexual stuff” happened “in the semi” and it happened 

“a lot.” Tr. at 322, 326. When asked by the prosecutor “what kind of stuff happened in the semi 

truck?” C.B. responded “my grandpa had sex, my grandpa had sex with me.” Tr. at 324. When 

asked “[w]hat other sex acts took place in the semi truck?” C.B. recounted an incident in which 

she and J.A. were together on one of the truck trips and both of them fellated Baker; on another 

occasion Baker digitally penetrated her and touched her breast. Tr. at 325.

By the summer of 2003 Baker owned a small house on Story Lake in DeKalb County. At 

that point C.B. was twelve years of age. On July 3rd of that year C.B. and J.A. were present for 

a family gathering and spent the night at Baker‟s house. At some time during the course of the 

night C.B. and J.A. went into Baker‟s room and according to C.B. “[u]m, he had sex with me. . . 

. Um, he inserted his penis into my vagina.” Tr. at 334. C.B. further testified, “he like touched 

us and had us touch him . . . on the private parts.” Tr. at 335. The “us” referred to J.A. Tr. at 

335. C.B. also testified that both she and J.A. “would take turns” fellating Baker. Tr. at 335. 

C.B. recounted another incident occurring at a trailer that Baker owned at the North 

Pointe Crossing Mobile Home park just north of where she lived in Garrett. The precise date is 

unclear but the record suggests sometime between 2001 and 2003. C.B., J.A., and A.H. were 

present at Baker‟s trailer. The three girls went into Baker‟s bedroom where he pretended to be 

asleep. Tr. at 345. According to C.B. she and J.A. “took turns” fellating Baker, Tr. at 346; and 

all three of the girls “touch[ed] his penis.” Tr. at 347. 

J.A., who was seventeen years of age at the time of trial, testified that C.B. is her step 

first cousin and that she refers to Baker as “Grandpa Dean.” Tr. at 545-46. She also testified 

that during 2000 to 2003 she, C.B., and A.H. were good friends. Tr. at 584. She offered 

testimony that tended to corroborate that of C.B. including an incident involving A.H. 
4

According to J.A. the three girls were present at Baker‟s house. Baker was present and 

pretending to be asleep. The three girls went into his bedroom where A.H. fellated Baker and 

J.A. played with his scrotum. “And then me and [A.H.] switched.” Tr. at 567. She further 

recalled that C.B. was on top of Baker and he was “sucking on her [breast].” Tr. at 568. 

A.H., who was also seventeen at the time of trial, was the third of the alleged victims to 

testify. Although no specific dates were given, A.H. largely corroborated the testimony of C.B. 

and J.A. concerning the alleged incident occurring at Baker‟s house at the mobile home park.

Among other things she confirmed that C.B. fellated Baker, and “then [J.A.] did it and then after

that I tried it.” Tr. at 650. A.H. also recounted an occasion when she and J.A. were together on a

trucking trip with Baker in his semi. The truck was equipped with a bed. While J.A. was in the 

passenger seat, A.H. went to sleep in the bed. A.H. testified that when she awoke Baker was 

lying next to her, and her clothing had been removed. Tr. at 653, 654. Baker rubbed his fingers 

over her “private area,” got on top of her, and “humped [her] stomach until he ejaculated.” Tr. at 

654. 

Baker testified on his own behalf. He acknowledged occasionally taking all of his 

grandchildren on semi trucking trips at one time or another, Tr. at 946, 963; and acknowledged 

owning a house on Story Lake. See generally Tr. at 963-65. However, Baker denied engaging 

in any sexual activity with C.B., J.A., or A.H. In response to his attorney‟s question “[a]nd

you‟re saying to me that they are lying,” Baker responded, “[t]hey absolutely are.” Tr. at 950. 

Essentially he testified that he believed C.B. had organized the girls to offer false testimony as 

part of a conspiracy to get even with him after he caught C.B. in a car with a boy at three in the 

morning as a result of which “she got grounded.” Tr. at 950. According to Baker, about two 

weeks later C.B. started a “rumor” about him engaging in inappropriate sexual activity. Tr. at 

950.

Following a five-day jury trial Baker was convicted as charged, and he pleaded guilty to 

the habitual offender allegation. The trial court sentenced him to a consecutive term of 

imprisonment on each of the three child molest counts for a total of seventy-six years. One of 
5

the counts was enhanced by thirty years for the habitual offender adjudication. The total 

executed term was 106 years. 

Baker appealed framing his contentions as follows: (1) the convictions are not sustained 

by evidence of jury unanimity, (2) the trial court‟s ruling allowing amendment of the information 

was in violation of proscriptions under the state and federal constitutions against ex post facto 

laws; if the amendment can be lawfully applied in this case, it was not applied properly, (3) the 

trial court committed fundamental error in giving its preliminary instruction 6 and final 

instruction 5, and (4) defendant‟s convictions should be set aside due to ineffective assistance of 

counsel. Br. of Appellant at i. The Court of Appeals rejected Baker‟s arguments and affirmed 

the judgment of the trial court. See Baker v. State, 922 N.E.2d 723 (Ind. Ct. App. 2010), aff‟d on 

reh‟g, 928 N.E.2d 890 (Ind. Ct. App. 2010). We granted transfer to explore Baker‟s jury 

unanimity claim. In all other respects we summarily affirm the opinion of the Court of Appeals. 

See Indiana Appellate Rule 58(A)(2). 

Background

Although the United States Supreme Court “has never held jury unanimity to be a 

requisite of due process of law,” Johnson v. Louisiana, 406 U.S. 356, 359 (1972) (affirming a 

state robbery conviction based on a nine-to-three jury verdict),1this jurisdiction has long 

required that a verdict of guilty in a criminal case “must be unanimous.” Fisher v. State, 291 

N.E.2d 76, 82 (Ind. 1973) (rejecting argument that the trial court erred in instructing the jury that 

its verdict must be unanimous); Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006) (“[W]hile jury 

unanimity is required as to the defendant's guilt, it is not required as to the theory of the 

defendant's culpability.”). 

In general, the precise time and date of the commission of a child molestation offense is 

not regarded as a material element of the crime. Accordingly, this Court has long recognized 

“that time is not of the essence in the crime of child molesting. It is difficult for children to 

remember specific dates, particularly when the incident is not immediately reported as is often 

 

1 But see Richardson v. U.S., 526 U.S. 813, 817 (1999) (declaring “a jury in a federal criminal case 

cannot convict unless it unanimously finds that the Government has proved each element”).
6

the situation in child molesting cases.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) 

(citations omitted). Depending on the facts of a particular case, applying the rule of jury 

unanimity can present difficult challenges in charges of child molestation. 

We find it useful to review a few scenarios, each with some relevance to the case before 

us, in which the issue of jury unanimity commonly arises in child sex offense cases. The first of 

these occurs when a young child is abused by “an abuser residing with the child . . . [who] 

perpetuate[s] the abuse so frequently . . . that the young child loses any frame of reference in 

which to compartmentalize the abuse into distinct and separate transactions. Such evidence of 

abuse has been termed generic evidence.” See R.L.G. v. State, 712 So.2d 348, 356 (Ala. Crim. 

App. 1997) (internal quotation marks omitted). The victim‟s “generic testimony” may describe a 

pattern of abuse (“every time mama went to the store”) rather than specific incidents (“after the 

July 4th parade”). Thus, a concern arises because the jury is not presented with a specific act 

upon which they unanimously may agree.

In response to this recurring problem, several jurisdictions have enacted criminal statutes 

that do not require evidence of particular incidents for prosecution. See, e.g., State v. Fortier, 

780 A.2d 1243, 1249, 1250 (N.H. 2001) (“A continuous course of conduct crime . . . does not 

require jury unanimity on any specific, discrete act . . . . [O]ur legislature created [N.H. Rev. 

Stat. 632-A:2] to respond to the legitimate concern that many young victims, who have been 

subject to repeated, numerous incidents of sexual assault over a period of time by the same 

assailant, are unable to identify discrete acts of molestation.”).

2 However, the Indiana legislature 

 

2

See also Cal. Penal Code § 288.5(a), (b) (“Any person who . . . over a period of time, not less than three 

months in duration, engages in three or more acts of substantial sexual conduct with a child under the age 

of 14 years . . . is guilty of the offense of continuous sexual abuse of a child . . . [;]” “To convict under 

this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts 

occurred not on which acts constitute the requisite number.”); N.Y. Penal Law § 130.75 (1) (“A person is 

guilty of course of sexual conduct against a child in the first degree when, over a period of time not less 

than three months in duration: (a) he or she engages in two or more acts of sexual conduct . . . with a child 

less than eleven years old; or (b) he or she, being eighteen years old or more, engages in two or more acts 

of sexual conduct . . . with a child less than thirteen years old.”); Tex. Penal Code Ann. § 21.02(b)(1), (d) 

(“A person commits an offense if: during a period that is 30 or more days in duration, the person commits 

two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against 

one or more victims . . . . [M]embers of the jury are not required to agree unanimously on which specific 

acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. 
7

has not adopted a statute criminalizing an ongoing pattern of sexual abuse when the victim is 

unable to reconstruct the specific circumstances of any one incident. We encourage the General 

Assembly to consider this issue.

Another source of concern stems from jury instructions that are delivered disjunctively or 

charging instruments that allege the defendant engaged in either “X” or “Y” behavior. In this 

regard, our jurisprudence has drawn a distinction between disjunctive instructions and charging 

instruments allowing for alternative means of committing an offense, versus alternative separate 

criminal offenses. 

One of the well-established rules of criminal pleading is that there can be no joinder of 

separate and distinct offenses in one and the same count. Vest v. State, 930 N.E.2d 1221, 1225 

(Ind. Ct. App. 2010). “A single count of a charging pleading may include but a single offense.” 

Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). Thus, a disjunctive instruction, which 

allows the jury to find a defendant guilty if he commits either of two or more underlying acts, 

either of which is in itself a separate offense, is fatally ambiguous because it is impossible to 

determine whether the jury unanimously found that the defendant committed one particular 

offense. See, e.g., Lainhart v. State, 916 N.E.2d 924, 942 (Ind. Ct. App. 2009) (noting that by 

charging and arguing different victims, the State improperly joined several alternative crimes); 

Castillo v. State, 734 N.E.2d 299, 304 (Ind. Ct. App. 2000), summarily aff‟d on trans. 741 

N.E.2d 1196 (Ind. 2001) (vacating defendant‟s conviction on grounds that jury‟s verdict may not 

have been unanimous because “the State chose to charge Castillo with one act of dealing in 

cocaine even though there was evidence that Castillo committed two separate acts of dealing in 

cocaine”). 

By contrast “the State may allege alternative means or „theories of culpability‟ when 

prosecuting the defendant for a single offense.” Vest, 930 N.E.2d at 1225. In essence the State 

is permitted to “present[] the jury with alternative ways to find the defendant guilty as to one 

element.” Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996); see also Taylor, 840 N.E.2d at 333-34 

(“It is settled that as long as each juror is convinced beyond a reasonable doubt that the 

 

The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, 

committed two or more acts of sexual abuse.”).
8

defendant is guilty of murder as that offense is defined by statue, it need not decide unanimously 

by which theory he is guilty.”) (citation omitted). 

In the context of cases where a defendant is charged with a single sexual offense, this 

Court has noted that because the crime of child molesting is committed if the defendant performs 

either sexual intercourse or deviate sexual conduct on a child, “[t]he charged crime of child 

molesting would be proven in the event of either of the alternative acts described in the statute.” 

Tague v. State, 539 N.E.2d 480, 481-82 (Ind. 1989); see also State v. Hartness, 391 S.E.2d 177, 

180 (N.C. 1990) (holding the crime of indecent liberties against a child is “a single offense which 

may be proved by evidence of the commission of any one of a number of acts”). 

Similar to the first noted concern, jury unanimity is also at issue where, as in the case 

before us, evidence is presented of a greater number of separate criminal offenses than the 

defendant is charged with. Jurisdictions have approached this problem in a variety of ways. See

generally Cooksey v. State, 752 A.2d 606 (Md. 2000) (cataloging cases). The procedure most 

commonly followed to balance the need to prosecute cases involving repetitive acts charged in a 

single count with the defendant‟s assurance of jury unanimity has been described as the 

“either/or” rule. That is to say, the defendant is entitled either to an election by the State of the 

single act upon which it is relying for a conviction or to a specific unanimity instruction. For 

example, in State v. Petrich the defendant was charged with two counts of an offense that in this 

jurisdiction would amount to child molesting. At trial numerous incidents of sexual contact were 

described in varying detail. The defendant was convicted of both counts and on appellate review 

he contended, among other things, that the State‟s failure to elect the act upon which it relied for 

conviction deprived him of the right to a unanimous verdict. With respect to this contention the 

Washington Supreme Court reached the following conclusions:

When the evidence indicates that several distinct criminal acts 

have been committed, but [the] defendant is charged with only one 

count of criminal conduct, jury unanimity must be protected. . . .

The State may, in its discretion, elect the act upon which it will 

rely for conviction. Alternatively, if the jury is instructed that all 

12 jurors must agree that the same underlying criminal act has 

been proved beyond a reasonable doubt, a unanimous verdict on 
9

one criminal act will be assured. When the State chooses not to 

elect, this jury instruction must be given to ensure the jury's 

understanding of the unanimity requirement.

683 P.2d 173, 178 (Wash. 1984)3(overruled on other grounds by State v. Kitchen, 756 P.2d 105 

(Wash. 1988)). Some jurisdictions endorse this view. See, e.g., Covington v. State, 703 P.2d 

436, 441 (Alaska Ct. App. 1985) (relying on the Petrich analysis and concluding “[i]n the instant 

case [charging multiple counts of sexual misconduct] the state did not elect specific incidents, 

nor was a clarifying instruction given”) (clarified on reh‟g, 711 P.2d 1183); State v. Arceo, 928 

P.2d 843, 874-75 (Hawaii 1996) (agreeing with Petrich and holding where separate and distinct 

acts are subsumed within a single count of sexual assault, the prosecution is required to elect the 

specific act upon which it is relying to establish the “conduct” element of the offense, or the trial 

court must give the jury a specific unanimity instruction).

The California Supreme Court has adopted a slight variation of the either/or rule. In 

instances in which the State declines to make an election and the evidence indicates the jurors 

might disagree as to the particular act defendant committed, a standard unanimity instruction 

should be given. People v. Jones, 792 P.2d 643, 649 (Cal. 1990). Where, however, the 

 

3

In support of its conclusion the court observed:

These options are allowed because, in the majority of cases in which this 

issue will arise, the charge will involve crimes against children. Multiple 

instances of criminal conduct with the same victim is a frequent, if not 

the usual, pattern. Note, The Crime of Incest Against the Minor Child 

and the States‟ Statutory Responses, 17 J. Fam. Law 93, 99 (1978-79). 

Whether the incidents are to be charged separately or brought as one 

charge is a decision within prosecutorial discretion. Many factors are 

weighed in making that decision, including the victim's ability to testify 

to specific times and places. Our decision in this case is not intended to 

hamper that discretion or encourage the bringing of multiple charges 

when, in the prosecutor's judgment, they are not warranted. The criteria 

used to determine that only a single charge should be brought [ ] may 

indicate that the election of one particular act for conviction is 

impractical. In such circumstances, [the] defendant's right to a 

unanimous verdict will be protected with proper jury instructions.

Id.
10

testimony of the victim recounts undifferentiated or generic occurrences of the sexual act, a 

modified unanimity jury instruction must be given because:

[A]lthough a prosecutorial election or unanimity instruction can 

help focus the jury on the same specific act where evidence of 

several distinct acts has been elicited, nonetheless neither an 

election nor a unanimity instruction is very helpful where the 

victim is unable to distinguish between a series of acts, any one of 

which could constitute the charged offense. In a case consisting 

only of “generic” evidence of repeated sex acts, it would be 

impossible for the prosecutor to select a specific act he relies on to 

prove the charge, or for the jury to unanimously agree the 

defendant committed the same specific act.

Id. at 650. Therefore, the Court explained:

[W]hen there is no reasonable likelihood of juror disagreement as 

to particular acts, and the only question is whether or not the 

defendant in fact committed all of them, the jury should be given a 

modified unanimity instruction which, in addition to allowing a 

conviction if the jurors unanimously agree on specific acts, also 

allows a conviction if the jury unanimously agrees the defendant 

committed all the acts described by the victim. . . . [In this latter 

situation], because credibility is usually the “true issue” [] the jury 

either will believe the child‟s testimony that the consistent, 

repetitive pattern of acts occurred or disbelieve it. In either event, 

a defendant will have his unanimous jury verdict and the 

prosecution will have proven beyond a reasonable doubt that the 

defendant committed a specific act, for if the jury believes the 

defendant committed all the acts it necessarily believes he 

committed each specific act. 

Id. at 659 (internal quotation marks and citations omitted). 

Discussion

In this case Baker contends that his three child molest convictions must be vacated 

because “the record provides no basis for a finding of jury unanimity for the verdict on any of 

those counts.” Br. of Appellant at 13. Essentially Baker complains that although he was charged 

with one count of child molesting with respect to each alleged victim, the jury heard evidence of 
11

multiple acts of molestation concerning each alleged victim. Thus, according to Baker, “[n]o 

one can read the record and have the slightest basis for saying that any of the verdicts were 

reached by twelve jurors all agreeing as to a particular incident.” Br. of Appellant at 35. In 

essence he complains that some jurors may have relied on different evidence than the other 

jurors to convict on each of the three counts.

We adopt the reasoning of the California Supreme Court in Jones, supra and hold that the 

State may in its discretion designate a specific act (or acts) on which it relies to prove a particular 

charge. However if the State decides not to so designate, then the jurors should be instructed that 

in order to convict the defendant they must either unanimously agree that the defendant 

committed the same act or acts or that the defendant committed all of the acts described by the 

victim and included within the time period charged.4 See also State v. Muhm, 775 N.W.2d 508, 

 

4 A slightly modified version of the State of California jury instruction – titled “When Proof Must Show 

Specific Act or Acts Within Time Alleged” – provides a useful model for this jurisdiction: 

The defendant is accused [in Count[s] ___ ] of having committed the 

crime of ___________, a violation of Indiana Code Section __________, 

on or about a period of time between ________ and ________.

In order to find the defendant guilty, it is necessary for the State to prove 

beyond a reasonable doubt the commission of [here insert a specific act 

[or acts] constituting that crime] [all of the acts described by the alleged 

victim] within the period alleged.

And, in order to find the defendant guilty, you must unanimously agree 

upon the commission of [here insert the same specific act [or acts] 

constituting the crime] [all of the acts described by the alleged victim] 

within the period alleged.

It is not necessary that the particular act or acts committed so agreed 

upon be stated in the verdict.

See CALJIC 4.71.5 (West 2011).

The notes accompanying the instruction provide in pertinent part:

Where the information charges an act or series of acts within a specified 

period and the prosecution has not elected to rely upon any specific date 

or dates, and the alleged criminal activity does not come within the 

continuous course of conduct exception, use this instruction . . . .
12

520 (S.D. 2009) (adopting the Jones Court‟s formulation of the “either or approach”); Thomas v. 

People, 803 P.2d 144, 153-54 (Colo. 1990) (adopting the reasoning of the Jones Court).

In the case before us, the State did not designate which specific act or acts of child 

molestation that it would rely upon to support the three-count charging information. But as 

noted above, the State was not compelled to do so. Concerning the unanimity requirement, the 

trial court instructed the jury in relevant part “Your verdicts must represent the considered 

judgment of each juror. In order to return a verdict of guilt or innocence you must all agree. . . .

Upon retiring to the jury room the Foreperson will preside over your deliberations and must sign 

and date the verdicts to which you agree. Each verdict must be unanimous. . . .” Appellant‟s 

App. at 286-87 (Court‟s Final Instruction number 25). 

It is clear that the foregoing instruction did not advise the jury that in order to convict 

Baker the jury must either unanimously agree that he committed the same act or acts or that he 

committed all of the acts described by the victim and included within the time period charged. 

However, Baker neither objected to the trial court‟s instruction nor offered an instruction of his 

own. This issue is waived. “[A] defendant who fails to object to an instruction at trial waives 

any challenge to that instruction on appeal.” Mitchell v. State, 726 N.E.2d 1228, 1241 (Ind. 

2000) (citing Ind. Trial Rule 51(C)). In like fashion the “[f]ailure to tender an instruction results 

in waiver of the issue for review.” Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002). We will 

review an issue that was waived at trial if we find fundamental error occurred. Bruno v. State, 

774 N.E.2d 880, 883 (Ind. 2002). The fundamental error doctrine provides a vehicle for the 

review of error not properly preserved for appeal. In order to be fundamental, the error must 

represent a blatant violation of basic principles rendering the trial unfair to the defendant and 

thereby depriving the defendant of fundamental due process. Pope v. State, 737 N.E.2d 374, 380 

(Ind. 2000). The error must be so prejudicial to the defendant's rights as to make a fair trial 

 

In a case in which the jurors might disagree as to the particular act [the] 

defendant committed, use the first bracketed phrase. When there is no 

reasonable likelihood of juror disagreement as to particular acts, and the 

only question is whether or not the defendant committed all of them, use 

the second bracketed phrase and delete the first.

Id.
13

impossible. Id. In considering whether a claimed error denied the defendant a fair trial, we 

determine whether the resulting harm or potential for harm is substantial. Id. Harm is not shown 

by the fact that the defendant was ultimately convicted. Id. Rather, harm is determined by 

whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural 

opportunities for the ascertainment of truth to which he would have been entitled. Id.

In this case the only issue was the credibility of the alleged victims. The only defense 

was to undermine the young women‟s credibility by, among other things, pointing out 

inconsistencies in their statements, and advancing the theory that they were lying in retaliation 

for Baker getting C.B. into trouble. Essentially “this case is about whether or not these kids will 

lie about [Baker] and make stuff up about him . . . .” See State v. Muhm, 775 N.W.2d at 521 

(internal citation omitted) (rejecting on harmless error grounds a claim that trial court erred in 

failing to give jury unanimity instruction in child sexual assault case where defendant requested 

no such instruction). “Ultimately the jury resolved the basic credibility dispute against [Baker] 

and would have convicted the defendant of any of the various offenses shown by the evidence to 

have been committed.” See id. (emphasis in original). We conclude Baker has not demonstrated 

that the instruction error in this case so prejudiced him that he was denied a fair trial. 

Conclusion

We affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and David, JJ., concur.