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Anderson v. State (11/14/2014) ap-2434

Anderson v. State (11/14/2014) ap-2434

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   



                                  303 K Street, Anchorage, Alaska  99501
  

                                            Fax:  (907) 264-0878
  

                           E-mail:  corrections @ appellate.courts.state.ak.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARK D. ANDERSON,  

                                                                  Court of Appeals No. A-10776  

                                   Appellant,                    Trial Court No. 3PA-07-2136 CR  



                          v.  

                                                                           O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                      No. 2434 - November 14, 2014  



                  Appeal from the Superior Court, Third Judicial District, Palmer,   

                  Vanessa H. White, Judge.  



                  Appearances:    Renee  McFarland,  Assistant  Public  Defender,  

                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                  Appellant.   Diane L. Wendlandt, Assistant Attorney General,  

                                  

                  Office  of  Special  Prosecutions  and  Appeals,  Anchorage,  and  

                  Michael C. Geraghty, Attorney General, Juneau, for the Appel- 

                  lee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                

                  District Court Judge. *  

                                               



                  Judge MANNHEIMER.  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                          Mark D. Anderson was convicted of ten counts of second-degree sexual  

abuse of a minor, 1  

                                      based on evidence that he engaged in multiple instances of sexual   



contact with three different girls, each under the age of eleven.  Anderson appealed his  



convictions on various grounds, but this Court affirmed his convictions in                                                                       Anderson v.  



State, 289 P.3d 1 (Alaska App. 2012).  



                          The  Alaska  Supreme  Court  has  now  directed  us  to  reconsider  certain  

aspects of our decision. 2  

                                                     The matters to be resolved all arise from the fact that the  



indictment against Anderson contained many counts that did not allege a specific date  



for the charged offense, but rather a range of dates.   



                                                                                                                         

                          As is often true in prosecutions for sexual abuse of a minor, the three girls  



in this case testified that Anderson engaged in sexual contact with them on numerous  



occasions  but,  for  the  most  part,  the  girls  were  unable  to  identify  the  dates  of  the  



individual acts of sexual contact.  Given the girls' testimony, Anderson argued that six  

                                                                                                   



of the counts in his indictment contained ranges of dates that were broad enough to  

      



potentially encompass two or more alleged acts of sexual contact - thus giving rise to  

                                                                                                                                      



the possibility that the jurors never reached unanimous agreement as to the criminal  

                                                            

incident that formed the basis for their guilty verdicts on those six counts. 3  

                                                                                                                                                    



       1     AS 11.41.436(a)(2).  



       2     See "Order" dated March 18, 2013 in Anderson v. State , File No. S-14976.  



       3     Of the counts alleging sexual abuse of G.B., Anderson argued that the time frames of                                       



two counts - Counts II and III - were broad enough to encompass several alleged acts of                                                        

sexual contact.   (Count II alleged that the sexual contact occurred "between April 28, 2006              

and July 31, 2006", while Count III alleged that the sexual contact occurred "between July   

 1, 2006 and January 27, 2007".)   



             Of the counts alleging sexual abuse of A.K. and K.M., Anderson argued that the time         

frames of four counts - Counts VI through IX - were likewise broad enough to encompass     

                                                                                                                                                (continued...)  



                                                                                - 2 -                                                                          2434
  


----------------------- Page 3-----------------------

                          In cases like this, Alaska law requires that the jurors unanimously agree on                       

the particular episode of criminal conduct that forms the basis for a guilty verdict.                                                                     4  This  



                       

would  not  have  been  a  problem  if  Anderson's  jurors  had  been  instructed  on  this  



requirement of factual unanimity - but they were not.  



                          Anderson's trial judge neglected to instruct the jurors that, with respect to  

                                                                                                                                 



each count, they could not convict Anderson unless they unanimously agreed on the  

                                                                                                                                                          



particular conduct underlying that count.  Anderson's attorney did not request such a  



unanimity instruction, nor did he object to the judge's failure to give such an instruction.  

                                                                                                                                  



But on appeal, Anderson argued that his trial judge committed plain error by failing to  



give the jurors a factual unanimity instruction.  



                          This Court agreed with Anderson that the judge's failure to give a factual  

                                                                                                                          

unanimity instruction was obvious error, 5                                                                                    

                                                                                 but we concluded that this error did not rise  



to the level of "plain error" for two reasons.   



                          First, we concluded that Anderson's attorney had potential tactical reasons  



                                                        6  

for failing to raise this issue.     



                          Second  (and  alternatively),  we  concluded  that  the  lack  of  a  factual  



unanimity instruction was harmless beyond a reasonable doubt - that there was no  



                                                                                                                                             

reasonable possibility that the jury's verdicts would have been different if the jurors had  



                                                                                                       

been properly instructed on the requirement of factual unanimity - because Anderson's  



      3      (...continued)  



several alleged acts of sexual contact.  (Counts VI and VII alleged that the sexual contact   

occurred "between March 1, 2007 and May 2007", while Counts VIII and IX alleged that the  

sexual contact occurred in "July 2007".)  



      4      See Anderson v. State , 289 P.3d 1, 4 (Alaska App. 2012); Covington v. State, 703 P.2d  

                     

436, 440-41 (Alaska App. 1985).  



       5     Anderson , 289 P.3d at 4.  



      6      Id. at 5.  



                                                                              - 3 -                                                                          2434
  


----------------------- Page 4-----------------------

defense at trial was a blanket denial of wrongdoing, coupled with the assertion that all   



of the girls' allegations were knowingly false, either because of ill will or as the result  

of adult pressure. 7  

                               



                                                                                                

                     The supreme court has directed us to reconsider both aspects of our ruling.  



To aid our reconsideration of these issues, we solicited supplemental briefs from the  



parties.   



          Identifying the proper test for assessing whether the jury instruction error  

                                                                                             

          was harmless  



                                                                   8 

                     Although  Covington v. State   was the seminal case that established the  

                                                                                                                



requirement of factual unanimity in sexual abuse cases in Alaska, this Court ultimately  

                                                                                       



applied the wrong test when we assessed whether the lack of a factual unanimity jury  



instruction was reversible error in Covington's case.   



                     Initially, this Court reversed Covington's sexual abuse convictions because  

the jury was not told of the need for factual unanimity. 9  

                                                                                            However, the State sought  



                                                                                 

rehearing, arguing that (1) Covington did not raise the jury unanimity issue in the trial  



                                                                 

court, so Covington was required to show plain error; and (2) the jury instruction was not  



                                                                                      10  

plainly erroneous under the facts of Covington's case.                                         



                     On rehearing, this Court reinstated Covington's convictions because we  



             

agreed with the State that Covington had failed to show that the jury instruction error  



                                                        

prejudiced the fairness of his trial.  We relied primarily on the fact that Covington had  



     7    Id. at 7-8. 
 



     8     703 P.2d 436, 440-41 (Alaska App. 1985).
  



     9     703 P.2d at 440-41.  
 



     10   State v. Covington (Covington II), 711 P.2d 1183, 1184-85 (Alaska App. 1985).
  



                                                                - 4 -                                                              2434  


----------------------- Page 5-----------------------

not presented individual challenges to specific acts of sexual misconduct, but rather had                      



presented a blanket defense that none of the alleged sexual abuse happened.  State v.  



Covington (Covington II), 711 P.2d 1183, 1184-85 (Alaska App. 1985).   



                    However, our decision in Covington II was premised on a particular view  

                                                                                                          



of the doctrine of plain error - a view that we adopted in an earlier case, Van Hatten v.  

                                            



State, 666 P.2d 1047 (Alaska App. 1983).   



                    In  Van Hatten, this Court held that when a defendant presents a claim of  

                                                             



constitutional error for the first time on appeal (i.e., when the issue is raised as a claim  

                                                                                                       



of plain error), an appellate court should not apply the "harmless beyond a reasonable  

                                                    



doubt" test to determine whether the constitutional error requires reversal.  Instead, this  



Court held that the "harmless beyond a reasonable doubt" standard applied only to cases  



"where   errors   of   constitutional   dimension   are   preserved   for   appeal   by   timely  

objection." 11  

                          



                    We  declared  that  in  all  other  cases  (i.e.,  cases  where  the  claim  of  



                       

constitutional error was not preserved in the trial court) the "prejudice" prong of the  



                                                                                                  

plain error doctrine "demand[ed] the application of a standard [less favorable to the  



                                                                                              12  

                                                            

defendant] than the harmless beyond a reasonable doubt test".                                     And we identified this  



                                                                                     

less favorable standard as the "appreciably affected the verdict" test - the test that the  



Alaska Supreme Court adopted in Love v. State , 457 P.2d 622, 630-32 (Alaska 1969),  

for evaluating the effect of non-constitutional errors. 13  



                    In Covington II, we expressly relied on  Van Hatten as the governing law  



                                                                                                                        

on the question of how to evaluate the impact of the jury instruction error (i.e., the lack  



     11   Van Hatten, 666 P.2d at 1056.  



     12   Ibid.  



     13   Ibid.  



                                                              - 5 -                                                            2434  


----------------------- Page 6-----------------------

of a factual unanimity instruction), given the fact that Covington failed to object to this   



error in the trial court.  Thus, in                 Covington II, when we assessed whether the lack of a  



factual unanimity instruction prejudiced the fairness of Covington's trial, we did not  



apply  the  "harmless  beyond  a  reasonable  doubt"  test.    Instead,  we  applied  the  

           



"appreciably affected the verdict" test - and, under this test, we concluded that the error  

                                          

was harmless. 14  



                                                                                 

                     But in Adams v. State , 261 P.3d 758, 773 (Alaska 2011), and again in Khan  



                                                                        

v. State, 278 P.3d 893, 901 (Alaska 2012), the Alaska Supreme Court held that even  



                                                                                                         

when a claim of constitutional error is raised for the first time on appeal (i.e., when it is  



                                                   

raised as a claim of plain error), the "harmless beyond a reasonable doubt" test continues  



to  govern  the  question  of  whether  the  error  (if  proved)  requires  reversal  of  the  



defendant's conviction.  Indeed, the Adams decision expressly disapproved our contrary  

                                        



holding in  Van Hatten.  Adams , 261 P.3d at 772-73.   



                     Therefore,  in  resolving  Anderson's  case,  we  must  apply  the  "harmless  



beyond  a  reasonable  doubt"  test  set  forth  in  Adams  and  Khan ,  rather  than  the  



"appreciably affected the verdict" test that we applied in Covington II.  We are required  

                                                              



to reverse Anderson's convictions on the six counts that he challenges for potential lack  

                                                             



of jury unanimity - Counts II and III, and Counts VI through IX - unless the State  

                                                                                                                  



demonstrates that the jury instruction error was harmless beyond a reasonable doubt.  



      14   Covington II, 711 P.2d at 1185.  



                                                                  - 6 -                                                                2434  


----------------------- Page 7-----------------------

          What  does  "harmless  beyond  a  reasonable  doubt"  mean  in  situations  

         where the jury instructions omit or materially misdescribe an essential  

         component of the decision the jury must make?  



                                                                            

                   The jury instructions in Anderson's case informed the jurors that they were  



required to reach unanimous agreement as to Anderson's guilt or innocence on each  



count of the indictment.  But the jury instructions omitted an important component of  



what  "unanimous  agreement"  entailed:                    the  instructions  failed  to  specify  that,  with  

                                                                                                            



respect to each count, the jurors could not return a guilty verdict unless they unanimously  

                                                                              



agreed on a particular incident of sexual contact.   



                   Although this is an error of constitutional dimension, Anderson and the  

                                                                                                               

State agree that the error does not require automatic reversal. 15  

                                                                                           Instead, to determine  



                                                                                           

whether this error requires reversal of Anderson's convictions on the six affected counts,  



we must assess whether the error is harmless beyond a reasonable doubt.  



                   When  the  Alaska  Supreme  Court  remanded  Anderson's  case  to  us  for  



reconsideration, the supreme court directed us to determine "whether the trial court's  



failure to provide [a factual unanimity] instruction was harmless beyond a reasonable  



doubt under either the Covington II approach or the ... approach [adopted by the United  

                                                                             

States Supreme Court in Neder v. United States 16]".   



                   We  will  discuss  the  Neder  decision  in  a  moment.    But  the  decision  in  



Covington II is irrelevant to this inquiry.    



     15  For a general discussion of the types of constitutional error that require automatic   



reversal  versus  the  types  of  constitutional  error  that  are  susceptible  of  a  harmless  error  

analysis, see Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr,                            Criminal  

Procedure (3rd ed. 2007),  27.6(d), Vol. 7, pp. 115-133.  



     16   527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).  



                                                         - 7 -                                                       2434  


----------------------- Page 8-----------------------

                   This Court's decision in Covington II offers no guidance on the question  



of when an error can be deemed harmless beyond a reasonable doubt - because, as we  

                                                                                                     



explained  in  the  preceding  section  of  this  opinion,  this  Court  did  not  employ  the  

                                           



"harmless beyond a reasonable doubt" test in Covington II.  Instead, we employed the  



"appreciably affected the verdict" test - the same test that applies to non-constitutional  



errors - because Covington failed to raise the jury instruction issue in the trial court.  



                   It is now clear, after the supreme court's decisions in Adams and Khan , that  

                                                                              



the approach taken in  Covington II was wrong - that even when a claim of constitu- 



tional error is raised for the first time on appeal, Alaska law requires an appellate court  

                                                                                        



to apply the "harmless beyond a reasonable doubt" test when evaluating the effect of the  



error.  



                   We  turn,  then,  to  the  question  of  what  "harmless  beyond  a  reasonable  

                                                                               



doubt" means in a case like Anderson's, where the problem is that the jury instructions  

                                                                                                 



omitted or materially misdescribed an essential component of the jury's decision.  



               (a) A note regarding terminology  



                   Before we begin a detailed examination of this question, we wish to clarify  

                                                                              



the terminology that we will be using.   



                   The United States Supreme Court first articulated the "harmless beyond a  

                                                             



reasonable  doubt"  standard  in  Chapman  v.  California,  386  U.S.  18,  87  S.Ct.  824,  



17 L.Ed.2d 705 (1967).  However, the Chapman opinion actually uses three phrases to  

                                                                        



describe  the  test  for  whether  a  constitutional  error  requires  reversal  of  a  criminal  



conviction.   



                                                           - 8 -                                                      2434
  


----------------------- Page 9-----------------------

                     Toward the end of its discussion of this point, the Supreme Court phrased     

the test as whether the error was "harmless beyond a reasonable doubt".                                         17  

                                                                                                                     But earlier  



                                                                                     

in  the  same  paragraph,  the  Supreme  Court  phrased  the  test  as  "whether  there  is  a  



                                    

reasonable  possibility  that  the  [error]  complained  of  might  have  contributed  to  the  



                    18  

conviction."            And later, still within that same paragraph, the Court phrased the test as  

whether the error "possibly influenced the jury adversely to [the] litigant". 19  



                     The  Supreme  Court  cautioned  its  readers  not  to  seek  fine  distinctions  



                                       

among these phrasings.  In particular, the Court declared (again, in the same paragraph)  



                                                                                                               

that there was "little, if any, difference" between asking "whether there is a reasonable  



                                         

possibility that the [error] contributed to the conviction" and "requiring the beneficiary  



of a constitutional error to prove beyond a reasonable doubt that the error complained  



                                                                       20  

of did not contribute to the verdict obtained."                            



                     We, too, will use these phrasings interchangeably.  At different points in  



                                                                    

our discussion, we may refer to the State's burden to show beyond a reasonable doubt  



                         

that the verdict would have been the same, or (alternatively) we may refer to the State's  



                                                                     

burden to negate any reasonable possibility that the verdict would have been different.  



                                                                                   

We mean the same thing by these phrasings.   They are both intended to embody the  



Chapman test for assessing the effect of constitutional error.  



                     (We note that the Montana Supreme Court has held that the "no reasonable  



                                                                                                        

possibility" phrasing of the test is actually preferable to the "beyond a reasonable doubt"  



phrasing - because "there is little, if any, difference between these two standards in  



     17   Id. , 386 U.S. at 24, 87 S.Ct. at 828. 
 



     18   Id. , 386 U.S. at 23, 87 S.Ct. at 827, quoting Fahy v. Connecticut , 375 U.S. 85, 86-87;
  



84 S.Ct. 229, 230; 11 L.Ed.2d 171 (1963).  



     19   Id. , 386 U.S. at 23, 87 S.Ct. at 828.  



     20   Id. , 386 U.S. at 24, 87 S.Ct. at 828.  



                                                               - 9 -                                                          2434
  


----------------------- Page 10-----------------------

terms of the burden on the State", and because the "beyond a reasonable doubt" standard       



normally applies to the fact-finding of a jury, thus falsely suggesting that appellate courts     



"sit as a fact-finder when evaluating a constitutional violation for harmlessness."                                                    State  



                                                                      21 

v. Matt, 199 P.3d 244, 253 (Mont. 2008).                                ) 



                 (b) The Supreme Court's decision in Neder v. United States  



                      In Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35  

                                                                                                                             



(1999), the trial judge improperly instructed the jurors that one element of the offense -  

                                                                                                                      



the materiality of Neder's false statements- was not to be decided by the jury, but rather  

was  to  be  decided  by  the  judge. 22  

                                                                The  jury  therefore  reached  no  decision  on  this  



element.  



                      To resolve Neder's appeal, the Supreme Court had to decide two issues that  

                                                                                                   



are relevant to Anderson's case:  First, does a trial judge's failure to instruct the jury on  

                                                                 



a necessary element of the offense automatically require reversal of the defendant's  



conviction, or is this type of error subject to harmless error analysis on appeal?  And  

                                                                                                                          



second, if this type of error can be harmless, what is the test for evaluating harmlessness  

                                                                                   



in this context?   



                      The Supreme Court first held that a judge's failure to have the jury decide  

                                                         



every element of the offense does not require automatic reversal, but rather is the type  

of error that is subject to harmless error analysis. 23  

                                                                                        



                      Next, the Supreme Court took up the issue of what "harmlessness" means  



in this context.   



      21   Overruled on other grounds in State v. Charlie, 239 P.3d 934, 945 (Mont. 2010). 
 



      22   Neder , 527 U.S. at 6, 119 S.Ct. at 1832.  
 



      23   Id. , 527 U.S. at 10-15, 119 S.Ct. at 1834-37. 
 



                                                                   - 10 -                                                                   2434  


----------------------- Page 11-----------------------

                    The defendant in Neder argued that, even though there was overwhelming   



evidence   that his false statement was material, it would nevertheless be improper to  



categorize the error in the jury instructions as harmless beyond a reasonable doubt.  



                    Neder pointed out that his trial judge affirmatively instructed the jurors not  

                                                                    



to consider the materiality of Neder's statements.  Thus, it was clear from the record that  

                   



the jurors never even discussed, much less resolved, the issue of materiality.  Because  

                                                                                                    



of this, Neder argued that it would be improper for an appellate court to declare the error  

                                                                                                         



harmless   beyond   a   reasonable   doubt,   even   if   the   evidence   of   materiality   was  



overwhelming - because (according to Neder) the appellate court would, in effect, be  

                                                                                

deciding the element of materiality in the first instance. 24  

                                                                                         



                    The  Supreme  Court  rejected  Neder's  argument,  viewing  it  as  "simply  



another form of the argument that a failure to instruct [the jury] on any element of the  



                                                                          25  

crime is not subject to harmless-error analysis."                              



                    The  Court  held  that  in  these  circumstances  -  i.e.,  instances  where  an  



                                   

element of the offense is wrongly removed from the jury's consideration - the question  



is whether, given the evidence at trial and the way the case was litigated, the appellate  



                                                                                    

court can "conclude beyond a reasonable doubt that the jury verdict would have been the  



                    

same absent the error" (i.e., if the jury had been asked to decide the omitted element of  



the offense).  527 U.S. at 18-19, 119 S.Ct. at 1838.   



                    In the next paragraph of the Neder decision, the Court restated this test -  

                                                                          



but this time using the converse formulation:  the Court declared that the defendant's  

                               



conviction should be reversed "[if] the record contains evidence that could rationally lead  



     24   Id. , 527 U.S. at 17, 119 S.Ct. at 1837-38.  



     25   Id. , 527 U.S. at 17, 119 S.Ct. at 1838.  



                                                             - 11 -                                                             2434  


----------------------- Page 12-----------------------

[the jury] to a contrary finding with respect to the omitted element".                                                   527 U.S. at 19, 119  



S.Ct. at 1839.  



                  (c)  Our  discussion  of  this  point  of  law  in  our   earlier  decision  in  

                  Anderson's case, and why we re-affirm our conclusions  



                        When Anderson's appeal was first presented to us, the parties agreed that       



Anderson's trial judge committed obvious error by failing to instruct the jury on the                                                  



requirement  of  factual  unanimity.    This  raised  a  question  of  whether  the  error  was  



harmless.  



                        With respect to six of the counts in the indictment, Anderson argued that  



this lack of a factual unanimity instruction could not be deemed harmless.  Anderson  

                 



pointed out that, according to the testimony of the three girls, many acts of sexual abuse  



occurred during the time spans covered by the six counts.  Thus, he argued, there was  

                                                                                            



at least a reasonable possibility (if not an outright probability) that the jurors did not  



reach unanimous agreement as to the particular incident(s) of sexual contact underlying  

                                                                                                         

each of those six guilty verdicts. 26  

                                                                



                                                                                                                                        

                        In our earlier decision in this case, we acknowledged that there was reason  



                                                                                                               

to suspect that the jurors who decided Anderson's case never unanimously identified a  

particular incident of sexual contact for each of those six counts. 27  But we held that this  



                                                                                                              

fact was not determinative of whether the error (the lack of the jury instruction) was  



                                                                   28  

harmless beyond a reasonable doubt.                                        



      26    Anderson v. State , 289 P.3d 1, 6 (Alaska App. 2012).  



      27    Ibid.  



      28    Ibid.  



                                                                        - 12 -                                                                         2434  


----------------------- Page 13-----------------------

                    As shown by the Supreme Court's decision in Neder , the question is not  



whether the record demonstrates that, despite the error in the jury instructions, the jury  

                                                           



nevertheless reached unanimous agreement on every essential element of the offense  



charged.  



                    If that were the rule, then the Supreme Court would unquestionably have  

                                                                                          



reversed Neder's conviction - because Neder's trial judge did not simply fail to tell the  

                                                                                                                      



jurors about the element of materiality; instead, he affirmatively instructed the jurors not  

                                                                                                                

to consider this element. 29  Thus, it was almost certain that Neder's jurors failed to reach  



a decision (unanimous or otherwise) concerning the element of materiality.  



                                                                                                                     

                    But under the Neder test, the question is not whether the State can show  



beyond a reasonable  doubt that, despite the error in the jury instructions, the jurors  



somehow figured out that they had to reach unanimous agreement on the component of  

                                                                                                     



their verdict that was omitted from the jury instructions.  Rather, the question is whether  

                                                                                                  



the  State  can  show  beyond  a  reasonable  doubt  that,  if  the  jury  had  been  properly  

                                                                                                              



instructed, they would have returned the same verdict.   



                     (Or, phrased another way, the State must show that there is no reasonable  

                                                      



possibility that the jury, if properly instructed, would have returned a different verdict.)  

                                                       



                    In Anderson's supplemental brief to this Court, he criticizes this approach  

                                                                                             



and declares that it is inconsistent with existing Alaska law.  



                    More  specifically,  Anderson  argues  that  the  Neder  approach  is  flawed  



because it "asks the counter-factual question [of] whether the defendant would have been  

                                                                    



convicted in a hypothetical trial absent the error."  Anderson declares that the inquiry  



should instead focus on "whether the error was a substantial factor in the jury's verdict".  

                                     



                    We agree with Anderson that the question is whether the error affected the  

                                                                                        



jury's verdict - or, more precisely, whether there is a reasonable possibility that the  

                                                                                                                        



     29   Neder , 527 U.S. at 6, 119 S.Ct. at 1832.   



                                                             - 13 -                                                            2434  


----------------------- Page 14-----------------------

error affected the jury's verdict.  But to answer that question, a court must necessarily      



ask another:  Might the jury have returned a different verdict if they had been properly        



instructed?  



                    Almost certainly, the course of the jury's discussions in Anderson's case  



(i.e., the specific content of their deliberations) would have been different if the jurors  



had known that they were required to unanimously agree on one or more particular  



incidents of sexual contact before returning a guilty verdict on any count.  



                    But the issue is not whether the course of the jury's deliberations might  



have been different.  Instead, the issue is whether the  outcome of their deliberations  

                                              



might have been different.  We must decide whether the State has shown, beyond a  



reasonable doubt, that the outcome of the jury's deliberations would have been the same  

                                                                                                            



even if the error had not occurred - i.e., even if the jurors had been apprised of the  



requirement of factual unanimity.   



                    Anderson  objects  that  this  process  leads  us  into  "hypothetical"  and  



"counter-factual" inquiries.  But if we are to adhere to the principle that jury instruction  

                                                 



errors do not automatically require reversal, and that these errors can potentially be  

                      



harmless, this is the only practical way to perform the harmless error analysis.  



                    Anderson raises one other objection to the way we approached the question  

                                                                                  



of harmless error in our earlier decision.   



                    Anderson contends that court decisions in this area of law can be divided  

                                                                 



into two camps, each adopting a distinct approach to the question of harmless error.  The  

                                                                                   



first of these approaches focuses on the effect that the error had on the jury, while the  

                                                       



second  approach  focuses  on  whether  the  evidence  at  trial  clearly  demonstrated  the  



defendant's guilt.  



                    According to Anderson, the courts that follow this second approach will  



overlook constitutional errors in the lower court proceedings, or will declare these errors  

                                                                                                    



                                                           - 14 -                                                       2434
  


----------------------- Page 15-----------------------

to be harmless, as long as the evidence of the defendant's guilt is "overwhelming".  And  

                            



he criticizes this second approach as flawed - as fundamentally inconsistent with the  



principle that all criminal defendants are entitled to procedural fairness, no matter how  

                                                                                                               



guilty they may be.  



                    We agree with Anderson in this matter.  (And we question whether any  



appellate courts are truly, or at least wittingly, in the second camp he describes.)   



                    But Anderson makes a further assertion:  he contends that, in this Court's  

                                                                                                               



earlier decision in his case, we endorsed the second camp's approach.  Nor is Anderson  

                                                



alone in this assertion:  the State agrees with Anderson that, in our earlier decision, this  

                                                                                                                 



Court adopted an "overwhelming evidence of guilt" approach to the question of harmless  

                                                                                                 



error.  



                    The parties' characterization  of our earlier decision reminds us of how  

                                                                   



difficult it can be to describe these legal concepts in a manner free from imprecision and  

                                                                                                     



ambiguity.  It appears that our earlier opinion in Anderson's case was wanting in this  

                                                 



regard.  



                    In  our  earlier  opinion,  we  did  not  rely  on  the  theory  that  the  evidence  

                          



against Anderson was so overwhelming, and that Anderson's guilt was so evident, that  

                                                                                                              



no error -  not even a constitutional error -  could possibly require reversal of his  

                                                                                                                            



convictions.  



                    Rather, when we explained why we concluded that the jury instruction error  



in  Anderson's  case  was  harmless  beyond  a  reasonable  doubt,  we  focused  on  the  



arguments that Anderson raised in his defense - arguments that the accusations against  

                                                      



him were totally false, and that the three girls had made these accusations either as the  

                                                                                                



result of ill-will or emotional turmoil, or as the result of pressure from overly suspicious  

                                                                                 



adults.  Anderson v. State , 289 P.3d at 7-8.  We concluded that, given the evidence in  

                                                                                            



Anderson's case, and given the tenor of Anderson's defense, there was no reasonable  

                                                                                                         



                                                             - 15 -                                                          2434
  


----------------------- Page 16-----------------------

possibility that the jury's verdicts would have been different even if the jurors had been  



properly instructed on the need for factual unanimity.  Id. at 8.  



                    This is not to say that the strength of the State's evidence is irrelevant to the  

                                                           



assessment of whether a constitutional error is harmless. But if the strength of the State's  

                                                                                                



evidence is to be relevant, it must be relevant to the particular issue or issues affected by  

                                                                                              



the constitutional error.   



                    For instance, in cases where an element of the offense is either unwittingly  

                                                                                                       



omitted from the jury instructions or, as in Neder , expressly removed from the jury's  



consideration, the strength of the State's evidence on that element would be relevant to  

                        



the assessment of whether there was a reasonable possibility that the jury, if properly  

                                                          



instructed, would have reached a different decision.  Thus, in Neder , the Supreme Court  

                                                                                                         



considered the fact that no one disputed the materiality of Neder's false statements, and  

                                                                                         



that the evidence of the statements' materiality was overwhelming.  



                    This is not the same as saying that the error should be ignored because,  

                                                                     



overall,  the  evidence  of  Neder's  guilt  was  compelling.    Rather,  the  strength  of  the  



evidence  that  Neder's  false  statements  were  material  was  relevant  to  the  Supreme  

                



Court's assessment of whether the outcome of Neder's trial was potentially affected by  

                                                                    



the constitutional error - by the fact that the trial judge mistakenly directed the jurors  

                                                           



not to consider whether Neder's false statements were material.  



                    In Anderson's case, and in Covington, the error in the jury instructions was  



of a different kind, and the strength of the State's evidence had only a lesser relevance  

                                                            



to this error.  Instead, in both cases, the more important factors were the general tenor of  

                                                                                                        



the victims' testimony and the details of the defense that was offered at trial.  These were  

                                                                                                                   



the factors that allowed this Court to meaningfully assess whether the jury instruction  

                                                                                



error was harmless - i.e., whether the failure to inform the jury of the requirement of  



factual unanimity might have made a difference to the outcome of the trial.  



                                                             - 16 -                                                          2434
  


----------------------- Page 17-----------------------

                    (As we explained earlier, this Court used the wrong test in Covington II  



when we assessed whether the jury instruction error might have made a difference to the  



outcome of the trial:  we mistakenly used the "appreciably affected the verdict" test that  



applies to non-constitutional error, rather than the "harmless beyond a reasonable doubt"  

                                                                                                       



test that applies to constitutional error.  But the principle here is the same, regardless of  

                                                                                    



whether the error is constitutional or non-constitutional.)  



          Why we again conclude that the jury instruction error in Anderson's case  

                                                                                              

          was harmless beyond a reasonable doubt  



                    We now must determine whether the State has shown, beyond a reasonable  

                                                                          



doubt, that the jury instruction error in Anderson's case was harmless.  Phrased another  

                                                                                                        



way (but intended to mean the same thing), we must decide whether there is a reasonable  

                                                                                                           



possibility that the verdicts reached by Anderson's jury would have been different if the  

                                         



jurors had received a proper instruction on factual unanimity.  



                    As we noted earlier, the charges against Anderson involved three different  

                                                                               



young girls. Two of the girls (K.M. and A.K.) were sisters living in the same household,  

                                                     



but the third girl (G.B.) lived in a separate household, and she was not acquainted with  

                                                                                             



the other two girls.   



                    The sexual abuse involving G.B. was reported first.  Several months later,  

                                                                            



when  the  police  were  nearing  completion  of  their  investigation  into  the  allegations  



involving G.B., the police received a separate, independent report that Anderson had  



sexually abused K.M. and A.K..   



                    The  only  obvious  link  between  the  case  involving  G.B.  and  the  case  



involving K.M. and A.K. was that each girl had a parent who was friends with Anderson  

                                                                         



through work.  (The mother of G.B., and the father of K.M. and A.K., both worked at the  

                                                                                       



same car dealership where Anderson was employed.)   



                                                           - 17 -                                                       2434
  


----------------------- Page 18-----------------------

                   At  trial,  Anderson's  attorney  argued  that  all  of  the  accusations  against  



Anderson were false.  In his summation to the jury, the defense attorney pointed out that  

                                                                                           



Anderson had never wavered in his denial of these charges, from the time he was first  



interviewed by the  police.  The defense attorney also pointed out that there was no  



medical evidence (or other physical evidence) to corroborate the girls' testimony, nor  



had any adult ever observed Anderson acting inappropriately with the girls.  



                   With respect to the charges involving G.B., the defense attorney suggested  

                                                                                  



that G.B. was a troubled young  girl who was manifesting behavioral problems (her  

                                                 



parents  were  separated  at  the  time),  and  the  defense  attorney  contended  that  G.B.'s  



accusation of sexual abuse was the product of a suggestion planted in her mind by an  

                                                                                        



overly suspicious day-care provider.  



                   According  to  the  trial  testimony,  this  day-care  provider  observed  G.B.  



playing in a manner that, to him, contained an inappropriate sexual aspect. The day-care  

                                                



provider's observation prompted him to "ask [G.B.] several times what was wrong".  



When G.B. did not immediately respond, the day-care provider told G.B., "You need to  

                                               



tell me who's touched you inappropriately, so I can fix it."  At that point, G.B. told him  

                                                                                     



that "Mr. Andy [i.e., Anderson] had done some things."  



                   Anderson's attorney argued that G.B.'s answer to the day-care provider was  



simply the product of suggestion - and that, as more and more adults became involved,  



G.B. felt that she could no longer retract what she had said.  



                   To  explain  the  apparently  independent  accusations  that  Anderson  had  

                         



sexually abused K.M. and A.K. (two sisters from a different family), the defense attorney  

                                                                                                 



noted that, after the investigation began into the sexual abuse of G.B., G.B.'s mother  

                                                                                                        



informed the managers of the car dealership where she worked - the same dealership  



where the father of K.M. and A.K. worked.  The defense attorney suggested that K.M.'s  



                                                          - 18 -                                                     2434
  


----------------------- Page 19-----------------------

and A.K.'s father overheard people talking about these allegations - and that, from  



there, "[it was] a small leap, at that point, to [K.M.'s] ears."  



                    K.M. was the older of the two sisters, and the defense attorney argued that  

                                                      



she  decided  to  fabricate  her  own  accusations  against  Anderson  simply  because  she  



"[wanted] to get some man in trouble."  



                      

                             Defense Attorney :  Our theory of the case [is that] it  

                    was  a  game  [for  K.M.].    She  was  having  fun,  [playing]  a  

                                                                                     

                    game [whose object was] getting a guy in trouble.  



The defense attorney acknowledged that K.M.'s younger sister, A.K., also reported being  



sexually abused by Anderson, but the attorney suggested that A.K. simply went along  

                                                                                             



with her sister's lie because K.M. was older and was "the leader".  



                    We recognize that the charges against Anderson were based on different  

                                                                                                      



acts of sexual contact that were factually distinct.  The State's evidence concerning these  

                                                                         



acts varied somewhat in content and probative strength.  Thus, it was logically possible  

                                                                                                       



that the jurors might believe that the State  had proved some of these acts of sexual  



contact  but  not  others.             But  even  though  this  outcome  may  have  been  a  logical  

                                              



possibility,  it  was  not  a  reasonable  possibility,  given  the  way  Anderson's  case  was  



litigated.  



                    In their summations to the jury, Anderson's attorney and the prosecutor  



each presented one theory of the case.  Anderson's attorney offered one blanket defense  

                                                         



to all the charges against Anderson:  the charges were false, the three girls knew that the  

                                                                                                      



charges were false, and Anderson was factually innocent of any wrong-doing.  Likewise,  

                                                                                    



the  State's  theory  of  the  case  was  consistent  as  to  each  act  of  sexual  contact.    The  



prosecutor relied heavily on the fact that K.M.'s and A.K.'s descriptions of the abuse  

                                                                                                                   



(and the time frame during which it occurred) dovetailed with the description of abuse  



given by G.B..  The prosecutor argued that this was strong evidence of Anderson's guilt,  

                                                                                                    



                                                            - 19 -                                                       2434
  


----------------------- Page 20-----------------------

because K.M. and A.K. were not acquainted with G.B..  The prosecutor also argued that  



the three girls were too young to invent such charges, and that they had no motive to lie  

                                                                                                                          



- but that Anderson did.  



                    Given the parties' theories of the case, and given the evidence presented at  

                                                                



trial, we conclude that even if Anderson's jury had been  instructed on the need for  

                                                                                         



factual unanimity, there is no reasonable possibility that the jury would have reached  



different verdicts.  Accordingly, we again conclude (as we did in our previous decision)  

                                                                             



that the trial judge's error in failing to give a factual unanimity instruction was harmless  

                                                         



beyond a reasonable doubt.   



          The question of whether Anderson's attorney made a tactical decision not  

                                                                                                      

          to object when the trial judge failed to include a jury instruction on factual  

                                                                                        

          unanimity  



                    When  the  supreme  court  remanded  Anderson's  case  to  this  Court,  the  



supreme court directed us to re-evaluate one additional issue:  whether Anderson's claim  

                                       



of  plain  error  should  fail  because  Anderson's  attorney  might  have  made  a  tactical  

                                                                                       



decision not to object to the omission in the jury instructions.  



                    In our earlier decision, we concluded that Anderson's claim of plain error  

                                                            



failed because the record supported an inference that Anderson's attorney had tactical  



reasons for not insisting on a jury unanimity instruction.  Anderson , 289 P.3d at 5.  But  

                                                                                                                           



after  considering  the  arguments  presented  in  the  parties'  supplemental  briefs,  we  

                                                    



conclude that our earlier decision may have been based on a mistaken legal approach to  

                                                                  



the question of "tactical decision".   



                    First of all, when a claim of error comes to an appellate court as a claim of  

                                                 



"plain error", the record of the trial court proceedings will rarely contain direct evidence  



of an attorney's tactical decision-making or reasoning.  (In those few cases where the  



                                                            - 20 -                                                       2434
  


----------------------- Page 21-----------------------

record does  contain direct evidence of an attorney's desire to let an error occur, any later  



claim of error will often fall into the category of "invited error" rather than "plain error".)         



                    Moreover, appellate courts do not receive evidence and do not engage in  



fact-finding.   



                    Thus, when an appellate court speaks of an attorney making a "tactical  



decision" not to object to an apparent error, the appellate court is not making a finding  

                                                                                               



of  historical  fact  about  the  attorney's  state  of  mind.    Rather,  the  appellate  court  is  



speaking of, and categorizing, the inferences that might reasonably be drawn from the  

                                               



record.  



                    The next question is to identify the sorts of inferences that justify the label  

                                                



"tactical decision".   



                    In Anderson's supplemental brief to this Court, he argues that the label  



"tactical decision" should apply only when the record of the lower court proceedings  



affirmatively   shows   that   the   attorney   (1)   was   consciously   aware   of   the   error,  



(2) deliberately refrained from objecting, and (3) was seeking an identifiable, tangible  

                                                                                 



benefit by withholding an objection.   



                    The  State,  on  the  other  hand,  argues  that  this  proposed  definition  of  

                                                                                                             



"tactical decision" is too narrow, and that it conflicts with the presumption of attorney  



competence.  More specifically, the State argues that, because of the presumption of  



attorney competence, an appellate court should presume  that trial attorneys are aware of  

                                  



errors that are occurring in their presence, unless the record affirmatively demonstrates  

                                                                



otherwise.  Additionally, because of this same presumption of competence, the State  



argues that the label "tactical decision" should apply not only to situations where the  

                  



attorney was seeking an identifiable, tangible benefit by failing to object, but also to  

                                                                                                      



situations where the attorney simply concluded that it was not worthwhile to object.  



                                                            - 21 -                                                       2434
  


----------------------- Page 22-----------------------

                          Although this debate may seem like the kind of topic that only appellate   



judges and lawyers would care about, the definition of "tactical decision" has significant     



 consequences for our criminal justice system.   



                          An  overly  broad  definition  of  "tactical  decision"  -   i.e.,  one  that  

                                                              



 encompasses too many failures to object - means, in practice, that appellate courts will  

                                                                                                       



be enjoined to overlook serious, prejudicial errors in the criminal justice process.  One  

                                                                                                                                            



 of an appellate court's primary tasks is to ensure the procedural fairness of the justice  



 system, and the success of that endeavor would be jeopardized by a rule that required  



 appellate courts to "look the other way" - to ignore obvious error in the lower court -  

                                                                                                                                          



based  on  the  speculative  possibility  that  the  defendant's  trial  attorney  had  some  

             



undisclosed reason for withholding an objection.  



                          On the other hand, an overly narrow definition of "tactical decision" - one  

                                                                                              



that requires too much affirmative proof that the trial attorney consciously withheld an  

                                                                                                       



 objection - means that there will be cases where a defense attorney can "save up" the  

                                                                                                



 errors that occur in the trial process, holding them in reserve in the event that the trial  

              

 ends badly for the defendant. 30  

                                                             An overly narrow definition of "tactical decision" also  



                                                                                             

potentially  conflicts  with  the  presumption  of  attorney  competence:    creating  the  



possibility that appellate courts will reverse criminal convictions based on an appellate  



                                                                                                                                              

attorney's theory of why the error was crucially detrimental to the defense case - even  



                                                                                                                                  

though, if this matter were investigated at an evidentiary hearing (for example, in a post- 



 conviction relief proceeding), the trial attorney might credibly explain that, under the  



 attorney's chosen litigation strategy, the error appeared to be inconsequential.  



                          Given that so much is at stake, given that the issue is so debatable, given  



the fact that this Court still lacks a third permanent member, and given the fact that we  

                                                                                                                             



       30    See the supreme court's discussion of this point in Khan v. State                                                    , 278 P.3d 893, 901  



 (Alaska 2012).  



                                                                             - 22 -                                                                              2434  


----------------------- Page 23-----------------------

have already concluded that the jury instruction error was harmless beyond a reasonable                   



doubt  in  Anderson's  case,  we  have  decided  not  to  re-visit  the  question  of  whether  



Anderson's  attorney  might  have  made  a  tactical  decision  not  to  object  to  the  jury  

                                   



instruction error.  



           Conclusion  



                     For the reason that the error in the jury instructions was harmless beyond  

                                                          



a reasonable doubt, we again AFFIRM the judgement of the superior court.  



                                                                - 23 -                                                            2434
  

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