Opinion
No. C7-99-1840.
Filed August 15, 2000.
Appeal from the District Court, Wright County, File No. K0981277.
Mike Hatch, Attorney General, Natalie E. Hudson, Thomas R. Ragatz, Assistant Attorneys General, and Tom Kelly, Wright County Attorney, (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant James Eric Buchanan was convicted of two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (1996), involving the sexual abuse of a child. Buchanan appeals, alleging his due process rights to a unanimous jury verdict were violated because the district court did not provide a specific unanimity instruction to the jury. Because Buchanan failed to request a specific unanimity instruction and failed to object to the jury instructions as given at trial or to raise the issue in posttrial motions, and because we find no plain error in the general unanimity instructions given to the jury, we affirm.
DECISION
Failure to object to jury instructions at trial generally results in a forfeiture of the right to appeal on that error. State v. Cross , 577 N.W.2d 721, 726 (Minn. 1998). An appellate court, however, has discretion to consider the issue on appeal if it is plain error affecting substantial rights. Id. ; State v. Griller , 583 N.W.2d 736, 740 (Minn. 1998); Minn.R.Crim.P. 31.02.
Buchanan alleges that his right to a unanimous jury verdict was violated because the state produced evidence of multiple incidents of sexual contact and sexual penetration but the jury was not instructed it must reach a unanimous verdict that he was guilty of any one particular incident of illegal sexual conduct. Verdicts in criminal cases must be unanimous. Minn.R.Crim.P. 26.01, subd. 1(5).
We decline to address the issue presented by Buchanan on appeal as to whether a specific unanimity instruction should have been given to the jury in this case because it is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting a reviewing court generally does not consider matters not argued and considered in court below). The trial court judge discussed the jury instructions with counsel for both parties at the close of evidence. The judge followed standard instructions in informing the jury on the requisite elements of proof needed to convict Buchanan of both counts of sexual contact and sexual penetration, as well as the requirement that any verdict must be unanimous. See 10 Minnesota Practice, CRIM. JIG 3.04, 12.04-12.07 (1999). Both counsel declined the court's invitation to put additional information on the record after jury instructions were given. Of even greater import, Buchanan neither contested the jury instructions as given at trial nor challenged the adequacy of the jury instructions in his motion for a new trial; he raises the issue of a "specific unanimity" instruction for the first time in this appeal. On this record, we find no plain error by the district court that would warrant a review by this court of the jury instructions.
We also note there is caselaw supporting the proposition that while complaints should be as specific as possible, exact dates need not be alleged where sexual abuse is charged, particularly when child-victims are involved. See, e.g., State v. Williams, 363 N.W.2d 911, 914 (Minn.App. 1985) (noting particular time not material element of offense), review denied (Minn. May 1, 1985); State v. Becker, 351 N.W.2d 923, 926 (Minn. 1984) (same). This rationale regarding the specificity required for proper complaints supports our conclusion that the trial court committed no plain error in giving a general unanimity instruction.
We note that a recent unpublished opinion of this court rejected a challenge to jury instructions, like appellant's, for the lack of a specific unanimity instruction. State v. Bandy, No. C9-99-1371, 2000 WL 665626 (Minn.App. May 23, 2000). Bandy involved allegations of several separate incidents of sexual penetration against a single victim, and Bandy was convicted of third-degree criminal sexual conduct. The court found that Bandy had waived the issue because he failed to object to the jury instructions or raise the issue in a motion for a new trial. Id. at *3. But the court, without discussing whether there was plain error, elected to exercise its discretion and consider the issue in the interests of justice Id. The court concluded Bandy's rights to a unanimous jury verdict had been protected by a general unanimity instruction because the jury could find appellant guilty without agreeing on the precise time and manner of the commission. Id. at *4. As an unpublished opinion, Bandy has no precedential authority. Minn. Stat. § 480A.08, subd. 3(c) (1998); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn.App. 1993).
Finally, in a pro se supplemental brief, appellant questions the sufficiency of the evidence to support his conviction, specifically raising possible inconsistencies in the victim's testimony and witness credibility. After a careful review of the record, we find these issues to be without merit.