2.11-6 Specific Unanimity
New, May 20, 2011The state has alleged that the defendant has committed the offense of <insert name of offense> in two different ways, <identify the two way of committing the offense>. You may find the defendant guilty of the offense only if you all unanimously agree on which of the two ways the defendant committed the offense. This means you may not find the defendant guilty unless you all agree that the state has proved beyond a reasonable doubt that the defendant <insert first theory of culpability> or you all agree that the state has proved beyond a reasonable doubt that the defendant <insert second theory of culpability>.
When a statute provides alternative ways of committing a crime, the jury must be unanimous on which of the alternatives has been proved only if the alternatives are conceptually distinct. State v. Benite, 6 Conn. App. 667, 675 (1986) (the three alternatives in burglary in the first degree, § 53a-101, are conceptually distinct).
Unanimity is not required when the prohibited conduct described in the statute may be satisfied in various ways. In other words, the focus is on the nature of the prohibited conduct, not the various ways one can engage in such conduct. See State v. Dyson, 238 Conn. 784, 794-95 (1996) (the six verbs in the accessory statute, § 53a-8 (a), all describe the conduct of furthering a crime); State v. Tucker, 226 Conn. 618, 648 (1993) ("the use of force or the threat of the use of force," when both were alleged, were merely two means of compelling another person and were not conceptually distinct); State v. James, 211 Conn. 555, 584-85 (1989) (whether the injury was to the health or morals of the child was of no consequence in assessing the defendant's conduct); State v. Bailey, 82 Conn. App. 1, cert. denied, 269 Conn. 913 (2004) (various facts supported the alleged fact of possession of marijuana with intent to sell; the jury only had to be unanimous that at least one of them proved possession); State v. Anderson, 16 Conn. App. 346, 357-58, cert. denied, 209 Conn. 828 (1988) (no agreement necessary as to whether the victim suffered serious physical injury due to a risk of death, disfigurement or impairment); State v. Mancinone, 15 Conn. App. 251, 274, cert. denied, 209 Conn. 818 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989) (risk of injury allegations all involved ways of creating a harmful situation).
"In situations where the alternatives of the mens rea component give rise to the same criminal culpability, it does not appear critical that the jury may have reached different conclusions regarding the nature of the defendant's intent if such differences do not reflect disagreement on the facts pertaining to the defendant's conduct." State v. Luster, 48 Conn. App. 872, 878, cert. denied, 246 Conn. 901 (1998) (the jury did not have to agree which crime the defendant intended to commit when he entered the building); State v. Marsala, 43 Conn. App. 527, 539 (1996), cert. denied, 239 Conn. 957 (1997) (on a harassment charge, jury did not have to agree on whether the defendant's intent was to annoy, harass, or alarm the victim).