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Marshall v. State (12/14/2018) ap-2627

Marshall v. State (12/14/2018) ap-2627

                                                    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 @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



BRANT JOSEF NATORI MARSHALL,  

                                                                   Court of Appeals No. A-12131  

                                   Appellant,                    Trial Court No. 3AN-13-7939 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                      No. 2627 - December 14, 2018  



                  Appeal   f               

                              rom   the   District   Court,   Third   Judicial   District,  

                  Anchorage, Pamela Scott Washington, Judge.  



                  Appearances:   Renee McFarland, Assistant Public Defender,  

                                      

                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                                    

                  Appellant.    Thomas  J.  Aliberti,  Assistant  District  Attorney,  

                  Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                                                                                               

                  the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).  


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

                      Brant   Josef   Natori   Marshall   was   convicted,   following   a   jury   trial,  of  



                                                                                1  

 second-degree failure to register as a sex offender.                                                                                   

                                                                                   One of the elements of this crime is  



                                                                                                                                     

that the defendant is, in fact, a convicted sex offender who is required to register as a sex  



                                                2  

                                                   

                                

offender under AS 12.63.010. 



                      At thebeginning ofMarshall's trial, Marshall's attorney offered to stipulate  

                                                                                                                              



to this fact.  The defense attorney explained that Marshall was not disputing that he was  

                                                                                                                                     



required to register; instead he was disputing only that he had knowingly failed to  

                                                                                                                                       



comply with the registration requirement.  The defense attorney further explained that  

                                                                                                                    



her reason for proposing this stipulation was to prevent the prosecution fromentering the  

                                                                                                                                      



judgment for Marshall's underlying sex offense into evidence, thereby preventing the  

                                                                                                                                      



jury from learning that Marshall had been convicted of sexual abuse of a minor.  

                                                                                                                      



                      The  prosecutor  agreed  to  the  proposed  stipulation,  and  the  trial  court  

                                                                                                                                  



 subsequently  instructed  the  jury  on  the  stipulation.                              The  jury  was  also  separately  

                                                                                                                          



instructed on their obligation to find all the elements of second-degree failure to register  

                                                                                                                               



as a sex offender beyond a reasonable doubt, including the element that was the subject  

                                                                                                                                



of the stipulation.  Following deliberations, the jury convicted Marshall of the charged  

                                                                                                                              



offense.  

                



                      On appeal, Marshall argues that the stipulation effectively removed an  

                                                                                                                                       



element from the jury's consideration and it was therefore error for the trial court to  

                                                                                                                                       



instruct the jury on the stipulation without first obtaining Marshall's personal waiver of  

                                                                                                                                        



his right to a jury trial on the element covered by the stipulation. Marshall further argues  

                                                                                                                                



      1    AS 11.56.840. 
 



      2    See Hinson v. State, 377 P.3d 981, 984 (Alaska App. 2016). 
 



                                                                 - 2 -                                                            2627
  


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

that the failure to obtain his personal jury trial waiver was structural error, entitling                                                       

Marshall to automatic reversal of his conviction without any showing of prejudice.                                                                      3  



                                        

                         For the reasons explained in this opinion, we disagree with Marshall that  



                                                                                                                                      

the stipulation removed an element of the charged offense from the jury's consideration,  



                                                                                                       

and we find no error in the trial court's handling of the stipulation.  



                                                                                                                                 

                         Marshall also separately argues that the trial court erred when it failed to  



                                                                                                                                                             

sua sponte instruct the jury that Marshall could not be convicted of failure to register if  



                                                                                                                                      4  

                                                                                                                                                           

his failure to act was "the result of mistake, inadvertence, or negligence."                                                              We find no  



                                                                                                                                   

merit to this claim, given how this case was litigated and argued to the jury.  



                                                                 

            Background facts and prior proceedings  



                                                                                                                                        

                         Marshall is a convicted sex offender who has been required to register as  



                                                                                                                     

a sex offender on an annual basis since June 2000.  Marshall's underlying sex offense  



                                                                                                                                                          

was for second-degree sexual abuse of a minor.  Marshall was in compliance with his  



                                                                                                                                                  

registration  requirements  until  June  2013,  when  he  failed  to  submit  his  annual  



                                                                                                                                                    

registration. Marshall had filed a change of address form with the Department of Public  



                                                                                                

Safety the previous summer, indicating that he was homeless.  



                                                                                                                                                   

                        Approximately a month after Marshall failed to file his June 2013 annual  



                                                                                                                                                             

sex offender registration, Marshall was a passenger in a car that was pulled over for a  



                                                                                                                                                         

traffic stop.  The officer who was conducting the stop recognized Marshall's name and  



                                                                                                                                                         

was  aware  that  Marshall  was  a  sex  offender  who  was  out  of  compliance  with  his  



      3     See Jordan v. State, 420 P.3d 1143, 1148 (Alaska 2018) (defining structural errors as  



                             

errors that defy harmless error analysis because they "affec[t] the framework within which  

the trial proceeds, and are not simply an error in the trial process itself") (internal citations  

omitted).  



      4      Cf. Moffitt v. State, 207 P.3d 593, 600 (Alaska App. 2009).  



                                                                           -  3 -                                                                     2627
  


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

registration requirement.                                    After confirming that Marshall was out of compliance, the                                                                               



 officer confronted Marshall about his registration status. According to the officer's later                                                                                                       



 testimony,Marshall responded                                            with aseriesofstatements indicating that"hedidn't                                                                     agree  



with the registration requirements, and so he purposefully stayed homeless."                                                                                                          Marshall  



was arrested and charged with second-degree failure to register as a sex offender, a class                                                                                                      

 A misdemeanor.                         5  



                                                                                                                                                                                         

                                Alaska Statute 11.56.840(a) states, in pertinent part, that a person commits  



                                                                                                                                                                                            

 the crime of second-degree failure to register as a sex offender if the person "(1) is  



                                                                                                                                                                                           

required to register under AS 12.63.010; (2) knows that the person is required to register  



                                                                                                                                                                                                          6  

                                                                                                                                                                                                               

under AS 12.63.010; and (3) fails to ... file the annual or quarterly written verification." 



                                                                                                                                                                                                  

 A person is required to register as a sex offender under AS 12.63.010 if they have been  



                                                                                                                                        7  

                                                                                                         

 convicted of a sex offense as defined in AS 12.63.100(6). 



                                                                                                                                                                                         

                                At thebeginning ofMarshall's trial, Marshall's attorney offered to stipulate  



                                                                                                                                                                                                       

 to the first element - that is, she offered to stipulate that Marshall was required to  



                                                                                                                                                                                                     

register as a sex offender under AS 12.63.010.  The defense attorney explained that she  



                                                                                                                                 

was offering this stipulation to prevent the State from introducing Marshall's criminal  



                                                                                                                                                                                                   

judgment for his sex offense - which would have alerted the jury to  the fact that  



        5       AS 11.56.840.  



        6       Under AS 11.56.840(b), it is an affirmative defense to a prosecution for second-degree                                                               



 failure to register as a sex offender that  

                (1) unforeseeable circumstances, outside the control of the person, prevented   

                the person from registering ...; and  

                (2) the person contacted the Department of Public Safety orally and in writing                                                                

                immediately upon being able to perform the requirements described in this                      

                section.  



        7  

                                                                                                            

                See Hinson, 377 P.3d at 984 ("The duty to register as a sex offender arises only if a  

 defendant has been convicted of a sex offense as defined in AS 12.63.100(6).").  



                                                                                                 - 4 -                                                                                          2627
  


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

Marshall's underlying sex offense was for sexual abuse of a minor.  According to the  

                                                                                                                                



defense attorney, Marshall was not disputing that he was required to register as a sex  

                                                                                                                                



offender; instead he was disputing only that he had knowingly failed to comply with that  

                                                                                                                               



requirement.   Marshall was present when this discussion took place, and he did not  

                                                                                                                               



object to the stipulation or to his attorney's explanation of why it was being offered.  

                                                                                                                      



                    The  prosecutor  agreed  to  the  proposed  stipulation,  and  the  trial  court  

                                                                                                                            



subsequently instructed the jury as follows:  

                                                       



                    The prosecution and the defense have agreed, or stipulated,  

                                                                                                 

                    to the following facts:  

                                               

                     1.    That      the      Defendant,          BRANT            JOSEF         NATORI  

                                                                                               

                    MARSHALL, is a sex offender and has the duties to register  

                                                                                                     

                    as a sex offender as imposed by AS 12.63.010.  

                                                                             



                    The trial court also separately instructed the jury on all the elements of  

                                                                                                                                 



second-degree failure to register, including the element covered by the stipulation, and  

                                                                                                                               



on the State's burden to prove each element beyond a reasonable doubt.  

                                                                                                     



                    Following deliberations, the jury found Marshall guilty of second-degree  

                                                                                                               



failure to register.  At sentencing, the trial court imposed 35 days to serve.  This appeal  

                                                                                                                           



followed.  



          Marshall's claim that the stipulation removed an essential element of the  

                                                                                                                      

          charge from the jury's consideration and therefore required his personal  

                                                                                                             

          waiver of his right to a jury trial on that element  

                                                                         



                    On appeal, Marshall argues that the stipulation effectively removed an  

                                                                                                                                 



element of the charged offense from the jury's consideration and it was therefore error  

                                                                                                                             



for the trial court to instruct the jury on the stipulation without first obtaining Marshall's  

                                                                                                                     



personal waiver of his right to a jury trial on that element.  

                                                                                           



                    We  disagree  with  the  underlying  premise  of  this  claim.                               Contrary  to  

                                                                                                                                 



Marshall's assumptions, there is a distinction between a defendant stipulating to facts at  

                                                                                                                                  



                                                              -  5 -                                                        2627
  


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

a jury trial and a defendant waiving his right to a jury trial on those same facts.                                                            We  



                                                                                           8  

previously explained this distinction in                            Ross v. State         .                                              

                                                                                              As we explained in that case:  



                                                                                                             

                       Criminal  cases  are  decided  by  jury  unless  the  defendant  

                                                                                                                           

                       waives the right to jury trial and the government consents to  

                                                                                                                          

                       have the case tried to the court.  In a jury trial, even when the  

                                                                                                                         

                       parties  reach  a  stipulation  concerning  [an  element  of  the  

                                                                                                                         

                       offense], the stipulation will be presented to the jury and the  



                                                   9  

                                        

                       jury will decide. 



                                                                                                                                                  

                       In the current case, the record shows that the jury was instructed on all of  



                                                                                                                                              

the elements of the offense, including the element covered by the stipulation.  The jury  



                                                                                                                                         

was also specifically instructed that they could not convict Marshall of failing to register  



                                                                                                                                                 

unless the State proved every element of the offense beyond a reasonable doubt.  At no  



                                                                                                                                        

time was the jury instructed that the stipulation relieved the State of its burden of proving  



                                                                                                                                            

this element.  And at no time was the jury told that, because of the stipulation, the jurors  



                                                                                                   

did not need to deliberate on this element of the offense.  



                                                                                                                               

                       We acknowledge that, in closing argument, the prosecutor ambiguously  



                                                                                                                                                

stated that "the State does not need to prove [the first element], with the stipulation." But  



                                                                                                                                                  

this statement was made in the context of a paragraph that reaffirmed the State's duty to  



                                                                                                                                         

prove every element of the charged  offense, including  the element covered  by  the  



                     

stipulation:  



                                                                                                                          

                                  Instruction Number 5 ... is the list of elements that the  

                                                                                                                                

                       State is going to have to prove beyond a reasonable doubt. ...  



      8    Ross  v.  State,   950  P.2d   587,   591  (Alaska  App.  1997)  (noting  that  a   defendant's  



willingness to stipulate to an element of the offense "does not answer the question of who                                                     

will be the trier of fact on this element of the crime");                              see also Tallent v. State, 951 P.2d 857,  

864 (Alaska App. 1997) ("[E]ven when a defendant stipulates to the existence of   prior  

convictions, the issue remains with the jury.").  



      9    Ross, 950 P.2d at 591-92.  



                                                                      -  6 -                                                                2627
  


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

                                      So, the first element that the State needs to prove beyond a                                                                                                        

                                     reasonable doubt is that Mr. Marshall is a sex offender.  No  

                                     one is contesting this element.                                                       The defense has stipulated to                                               

                                     this, they have agreed to this, and the State does not need to                                                                                                    

                                     prove that, with the stipulation.                        



Thus, contrary toMarshall'scharacterizationoftheprosecutor's                                                                                                                    statement on appeal, the  



prosecutor was not arguing that the State did not have a burden to prove the first element                                                                                                                                  



beyond a reasonable doubt. Instead, the prosecutor was pointing out that the stipulation                                                                                                                             



was   evidence   and   that   the   State   was   entitled  to  rely   on   this   evidence   to   meet   its  



evidentiary burden on that element.                                                                  



                                     In his appeal,Marshall relies                                                  heavilyon                     Hutton v. State                         ,anAlaskaSupreme                



Court case in which the court reversed the defendant's felon-in-possession conviction                                                                                                                               



                                                                                                                                                                            10  

                                                                                                                                                                                                                                

because   it   found   the   defendant's   jury   trial   waiver   invalid.                                                                                                           But  Hutton  is  easily  



                                                                                                                                                                                                                                         

distinguishable from the present case.  In Hutton, the jury was never instructed on the  



                                                                                                                                                                                                                   11  

                                                                                                                                                                                                                         Instead,  

elements of felon-in-possession or asked to return a verdict on that charge. 



                                                                                                                                                                                                                                 

Hutton waived his right to a jury trial on that charge - a waiver that was later found  



                                                                                                                                                                                                                                          

invalid because the trial court had not informed him of all of the essential elements of the  



                     12 

charge.                                                                                                                                                                                                                

                           Here, unlike in Hutton, Marshall received a jury trial in which the State was  



                                                                                                                                                                                                                                       

required to prove all of the essential elements of the charged offense, and it was the jury  



                                                                                                                                                                                              

(not the judge) who found Marshall guilty of second-degree failure to register as a sex  



                           

offender.  



          10      Hutton v. State, 350 P.3d 793, 799 (Alaska 2015).
  



          11      Id. at 794.
  



          12      Id. at 799.
  



                                                                                                                  -  7 -                                                                                                           2627
  


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

                         Marshall's briefing on appeal also relies on                                    Smallwood v. State                  , a case in   



which this Court reversed the defendant's conviction because the trial court erroneously                                                  



                                                                                                                   13  

took conclusive judicial notice of an element of the offense.                                                                                          

                                                                                                                         But this case is also  



                                                                                                                                            

 distinguishable.  Smallwood, and the line of cases that follow Smallwood's reasoning,  



                                                                                                                                                 

 are all cases where the judge erroneously took conclusive judicial notice of an element  



                         14  

                                                                                                                                                         

 of the crime.                 In contrast, this case involves a stipulation between the parties, not  



                                                                                                                                                  

judicial notice by the judge. In addition, unlike those other Smallwood cases, the judge's  



                                                                                                                                                       

 instruction on the stipulation was at the direct request of the defense attorney, who  



                                                                                                                  15  

                                                                                                                       

 essentially invited the purported error now claimed on appeal. 



                                                                                                                                                            

                         We caution trial courts, however, that our decision should not be read as  



                                                                                                                                               

 suggesting that there is never any need for inquiry when the defense attorney proposes  



                                                                                                                                                   

 a stipulation.  We note that there are some jurisdictions that require a personal waiver  



       13    Smallwood v. State, 781 P.2d 1000, 1004 (Alaska App. 1989).  



       14    Smallwood, 781 P.2d at 1004 (plain error for trial court to erroneously take judicial   



notice that defendant's daughter was not mentally culpable for the crime of theft, despite lack                                   

 of objection by defense);                   see also Rae v. State, 884 P.2d 163, 167 (Alaska App. 1994) (trial  

 court erred in taking conclusive judicial notice of one of the elements of DWLR, despite lack                               

 of objection by defense);                  Fielding v. State, 842 P.2d 614, 615 (Alaska App. 1992) (error for  

judge to take conclusive judicial notice of road qualifying as a highway over objection by                                               

 defense).  



       15    See Barrett v. State, 772 P.2d 559, 568 n. 10 (Alaska App. 1989) (noting that invited  

                     

 error "occurs when the court takes erroneous action at the express request of [a party], and  

then [that party] urges reversal on that basis on appeal"); see also Parson v. State, Dep't of  

Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 1038 (Alaska 2008) ("When an error is  

invited, an appellate court examines the error to see if there is an 'exceptional situation'  

                                                                                                                       

where reversal is necessary to preserve the integrity of the judicial process or to prevent a  

                                                                                                  

miscarriage of justice.").  



                                                                           -  8 -                                                                     2627
  


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

                                                                                                                                                                      16  

fromthedefendant                     beforeaccepting                 stipulations thatessentially                         amount toaguilty plea.                           



                                                                                                                                                             

There are also jurisdictions that prohibit trial courts from accepting stipulations to which  



                                                                          17  

                                                                                                                                                             

the defendant has expressly objected.                                          We need not decide to what extent we would  



                                                                                                                                                               

follow the approach of these jurisdictions because the record is clear that neither of those  



                                             

circumstances existed here.  



                                                                                                                                           

                          Accordingly,  we  reject  Marshall's  claim  that  the  trial  court  erred  in  



                                                                                                                                                               

accepting the defense-proposed stipulation without a personal jury trial waiver from  



                                                                                                               

Marshall, and we find no merit to his claim of structural error.  



                                                                                                              

              Whether it was plain error for the trial court not to affirmatively instruct  

                                                                                                                                                    

             the jury that Marshall couldn't be convicted if his failure to register was  

                                                                                     

             a result of mistake, inadvertence, or negligence  



                                                                                                                     

                          At trial, Marshall's jury was instructed on the elements of second-degree  



                                                                                                                                                         

failure to register as a sex offender with a jury instruction modeled on the 2008 criminal  



       16    See,  e.g., Bonilla-Romero  v.   United   States,  933  F.2d  86,  88-89  (1st  Cir.  1991);  



Commonwealth v. Brown, 771 N.E.2d 214, 220-21 (Mass. App. 2002); see also United States  

v. Strother, 578 F.2d 397, 404-05 (D.C. Cir. 1978) (holding that where stipulation and waiver   

of jury trial is tantamount to a guilty plea, trial courts should arguably "take heed of at least                                                           

some of the advices enumerated in Rule 11(c)").                                             



       17    See, e.g.,  United States v. Williams, 632 F.3d 129, 133 (4th Cir. 2011) (reversing  

                                

conviction where stipulation was given over the defendant's express objection); State v.  

                                                                                                                                                           

Humphries, 336 P.3d 1121, 1124-25 (Wash. 2014) ("[A]lthough the decision to stipulate an  

element of the crime does not generally require a colloquy on the record with the defendant,  

                                                                                                             

such a decision may not be made over the defendant's known and express objection."); see  

                                                                                                                                                                   

also United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980) ("[W]e hold that when  

          

a stipulation to a crucial fact is entered into the record in open court in the presence of the  

                                                                                                                                                                    

defendant,  and  is  agreed  to  by  defendant's  acknowledged  counsel,  the  trial  court  may  

                                                              

reasonably assume that the defendant is aware of the content of the stipulation and agrees to  

                                                                                                                      

it through his or her attorney.").  



                                                                                -  9 -                                                                         2627
  


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

                                                                                                 18  

pattern jury instruction for this offense.                                                            The trial judge therefore instructed the jury                                                    



 that, to convict Marshall of second-degree failure to register as a sex offender, the State                                                                                                         



had to prove four elements beyond a reasonable doubt:                                                                                      (1) that Marshall was a sex                                 



 offender, (2) that Marshall knew that he was required to register as a sex offender, (3)                                                                           



 that Marshall failed to file the annual written verification required of sex offenders, and                                                                                                             



 (4)   that Marshall did so knowingly.                                                       The jury was also separately instructed on the                                                              

 definition of knowingly.                                   19  



                                                                                                                                                                                                        

                                 Prior to closing arguments, Marshall's attorney requested that the jury also  



                                                                                                                                                                                                         

be instructed on the definition of "recklessly."  The defense attorney explained that she  



                                                                                                                                                                                                                    

wanted a jury instruction on this lesser culpable mental state so that she could refer to  



                                                                                                                                                                                            

 that instruction when arguing why there was a reasonable doubt as to whether Marshall  



                                                                                               

 "knowingly" failed to register as a sex offender.  



         18      See  Alaska Criminal Pattern JuryInstruction                                                        11.56.840(a)(1) (amended 2008). We                                                note  



 that AS 11.56.840 was amended in 2010 and Marshall's alleged failure to register occurred  

 in 2013, after those legislative amendments went into effect.                                                                                 See SLA 2010, ch. 18,  3,  

 20; see also SLA 2010 ch. 19,  2.  However, neither party addresses the 2010 change in the   

 law in their briefing in this case, and both parties appear to accept the 2008 criminal pattern  

                                                                                                 

jury instruction as a correct articulation of the culpable mental state required for the criminal  

                                                                                                                                                                     

 offense of failure to register as a sex offender.  Because neither party addresses the 2010  

 legislative  amendments  to  the  statute,  we  do  not  address  them here                                                                                        and  we  express  no  

 opinion as to the effect and constitutionality of those legislative changes.    



         19        See  Alaska  Criminal  Pattern  Jury  Instruction  11.81.900(a)(2)  ("A  person  acts  

                                                                                                                                   

 'knowingly' with respect to conduct or to a circumstance described by a provision of law  

                                                                                                                                                                                                         

 defining an offense when the person is aware that the conduct is of that nature or that the  

                                                                                                                                                               

 circumstance exists.  When knowledge of the existence of a particular fact is an element of  

                                                                                                                                        

 the offense, that knowledge is established if a person is aware of a substantial probability of  

                                                                                                                                                                                                             

 its existence, unless the person actually believes it does not exist.").  



                                                                                                  -  10 -                                                                                            2627
  


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

                                                            The trial court refused this request because it believed that it would be                                                                                                                                                                                                                    



confusing for the jury to be instructed on mental states that were not directly relevant to                                                                                                                                                                                                                                                                                                 



the elements of the charged offense. Later, during closing argument, Marshall's attorney                                                                                                                                                                                                                                                                         



began   to   read   the   statutory   definition   of   "recklessly"   to   the   jury.     The   prosecutor  



objected, and the trial court sustained theobjection,                                                                                                                                                                             noting that Marshall's attorney could                                                                                                      



make   the   argument   that   Marshall   had   not   acted   with  the   culpable   mental   state   of  



"knowingly" without relying on the statutory definition of "recklessly."                                                                                                                                                                                                                                                                  The defense   



attorney then resumed her argument, asserting that it was the State's burden to prove                                                                                                                                                                                                                                                                                      



beyond a reasonable doubt that Marshall "knowingly did not register in June."                                                                                                                                                                                                                                                                                                  The  



attorney also emphasized that "[t]o be able to prove somebody's state of mind, their                                                                                                                                                                                                                                                                                            



awareness, their conscious neglect or disregard, intentionality, is a high burden."                                                                                                                                                                                                                                                                                                 No  



further objections occurred.                                                      



                                                             On   appeal,   Marshall   does   not  argue   that   the   trial   judge   should   have  



instructed the jury on the statutory definition of "recklessly" or that the trial judge erred                                                                                                                                                                                                                                                                                 



when she sustained the prosecutor's objection.                                                                                                                                                                          Instead, Marshall raises a new claim:                                                                                                            



Marshall argues that the trial                                                                                                               judge erred by failing to supplement the pattern jury                                                                                                                                                                                



instructions with a clearer definition of the term "knowingly."                                                                                                                                                                                                                           According to Marshall,                                          



the defense attorney's request for the court to instruct the jury on "recklessly" should                                                                                                                                                                                                                                                                               



have alerted the court that it should instruct the jury that Marshall could not be convicted                                                                                                                                                                                                                                                              



of knowingly failing to register as a sex offender if the jury found that his failure to                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                    20  

register "was the result of mistake, inadvertence, or negligence."                                                                                                                                                                                                                                            



               20              Cf. Moffitt v. State, 207 P.3d 593, 603 (Alaska App. 2009) (defining "knowingly" in  



the context of the former failure to appear statute).  Following our decision in Moffitt , the  

                                                                                                                                                                                                                                  

Alaska legislature amended the failure to appear statute to eliminate the "knowingly" mens  

rea requirement and to substitute a criminal negligence standard in its stead.  See SLA 2010,  

                                                                                                                                                                                                                                                                                                                                       

ch. 19,  2, 30.  The current failure to appear statute still requires the State to prove that the  

                                                                        

                                                                                                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                                                      -  11 -                                                                                                                                                                                  2627
  


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

                             To prevail on this claim of plain error, Marshall must show,                                                                inter alia         , that   



 it would have been obvious to any competent judge that this supplemental instruction                                                                           



was needed and that, without this instruction, there was a "high likelihood" that the jury                                                                                     

 followed an erroneous theory, resulting in a miscarriage of justice.                                                                       21  



                                                                                                                                             

                             Marshall has not met this burden.  The record shows that Marshall's jury  



                                                                                                                                                                  

was properly instructed on the State's burden to prove beyond a reasonable doubt that  



                                                                                                                                                                              

 Marshall acted knowingly when he failed to register as a sex offender and was also  



                                                                                                                                                                                

properly instructed on the meaning of "knowingly." Although the trial judge would not  



                                                                                                                                                                                

 let Marshall's attorney read the statutory definition of "recklessly" to the jurors, the  



                                                                                                                                                                              

judge explicitly told the defense attorney that she was free to argue - "[in] any way  



                                                                                                                                                                                         

 [she] want[ed] to" - that Marshall did not act "knowingly" when he failed to register.  



               

 There is no indication from the record that Marshall's defense attorney was prevented  



                                                                                                                                                                                

 frommeaningfully arguing Marshall's defense to the jury; nor is there any indication that  



                                                                                                                                           

the jury was confused about what "knowingly" failing to register meant.  



                                                                                                                                                                                   

                            Accordingly, we find no merit to Marshall's claim that it was plain error to  



                                                                                                                                                                            

 fail to provide the jury with this additional clarification of the required mental state.  



               Conclusion  



                             The judgment of the superior court is AFFIRMED.  

                                                                                                             



       20      (...continued)  



 defendant was aware of his or her duty to appear.  See AS 11.56.730.  



       21     Patterson v. Cox, 323 P.3d 1118, 1120-21 (Alaska 2014) (quoting Khan v. State, 278  



 P.3d 893, 896 (Alaska 2012)).  



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