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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jordan v. State (5/4/2018) sp-7240

Jordan v. State (5/4/2018) sp-7240

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

ANTONIO  JORDAN,                                                 )  

                                                                 )          Supreme  Court  No.  S-16217  

                                Petitioner,                      )         Court  of  Appeals  No.  A-11048  



                      v.                                         )          Superior Court No. 4TO-09-00151 CR  



STATE OF ALASKA,                                                                                

                                                                 )         O P I N I O N  



                                                                 )         No. 7240 -  May 4, 2018  




                        etition for Hearing from the Court of Appeals of the State of


                      Alaska, on appeal from the Superior Court of the State of


                      Alaska,  Fourth  Judicial District,  Tok, Robert B. Downes,



                      Appearances:   Susan Orlansky, Reeves Amodio LLC, and


                      Marjorie Mock, Anchorage, for Petitioner.   Ann B. Black,


                      Assistant         Attorney           General,         Anchorage,             and       Jahna


                      Lindemuth, Attorney General, Juneau, for Respondent.


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,


                      and Carney, Justices.



                      MAASSEN, Justice.


                      BOLGER, Justice, with whom STOWERS, Chief Justice,


                     joins, dissenting.



                      The police entered the defendant's property and found 15 marijuana plants,  


which when stripped and dried yielded over a pound and a half of marijuana. At trial the  

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


court excluded the defendant's testimony that he believed he possessed less than four  


ounces of marijuana - the statutory limit - and failed to instruct the jury that it had to  


find a culpable mental state with regard to the marijuana's weight.  The jury convicted  


the defendant of possessing at least four ounces, a class C felony.  On appeal, the court  


of appeals held that the trial court erred both by barring the defendant's testimony about  


his subjective belief and by omitting a mental state element from the jury instructions.  


But finding these errors harmless, the court affirmed the defendant's conviction.  


                    On his petition for hearing to this court, the defendant argues for the first  


time that the alleged errors at trial are structural errors; that is, that the constitutional  


rights they affect are so important that they cannot be subject to harmless error review.  


We agree conditionally and in part.   We hold that omitting from jury instructions a  


contested element of an  offense - here the defendant's mental state regarding the  


marijuana's weight - is structural error.  We further hold that the restriction on the  


defendant's testimony in this case - which we agree was error - was not harmless  


beyond a reasonable doubt, though we do not reach the question whether it was structural  



                    Our  decision  of  these  issues,  however,  assumes  that  the  defendant's  


possession of marijuana in a greenhouse on his residential property should be afforded  


the same constitutional protections given to his possession of marijuana in the home.  


Whether this is a legitimate assumption was not decided in either the superior court or  


the court of appeals.  We therefore reverse the court of appeals' decision and remand to  


the superior court to consider in the first instance whether the constitutional protections  


                                                               -2-                                                         7240

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

II.           FACTS AND PROCEEDINGS          

                            In 2008 the police found 15 marijuana plants on Antonio Jordan's property                                                            


in Tok.          Possessing four or more ounces of marijuana is a class C felony.                                                                                     

                                                                                                                                                            The police  


lacked the immediate means to weigh the marijuana by the statutorily approved method  



for live plants (the "one-sixth" method),                                             so they stripped off the leaves and dried and  


weighed them; this method yielded over 25 ounces.  



                            Jordan was indicted on a charge of violating AS 11.71.040(a)(3)(F). 


moved to dismiss the indictment on the ground that the method used to weigh the  


marijuana was not legally sanctioned.  The superior court denied the motion, reasoning  


that the "one sixth" method described in AS 11.71.080 is not exclusive and that the  


police had used a reasonable alternative.  


              A.            The Exclusion Of Jordan's Testimony  


                           Near  the  beginning  of trial the court granted the State's request for  a  


protective order precluding the defense from raising the statutory weighing method "for  

              1            AS 11.71.040(a)(3)(F) (2008).                                    This statute was repealed after Jordan was                                     

indicted and convicted.                              Ch. 36,  179, SLA 2016 (effective July 12, 2016).                                                             In this   

opinion we refer to the law in effect when Jordan was indicted and convicted.                                                                                     

              2            See AS 11.71.080 ("For purposes of calculating the aggregate weight of a  


live marijuana plant, the aggregate weight shall be one-sixth of the measured weight of  


the marijuana plant after the roots of the marijuana plant have been removed."). Because  


the State Troopers in Tok did not have a certified scale on site, they needed to send the  


plants away for analysis.  But they could not send live plants because freshly cut, green  


marijuana quickly develops a highly toxic mold.  


              3             Jordan  was  also  indicted  and  convicted  under  AS  11.71.040(a)(5)  for  


"knowingly keep[ing] or maintain[ing] any . . . dwelling, building, . . . or other structure  


or place that is used for keeping or distributing controlled substances in violation of a  


felony offense under this chapter or AS 17.30."  That offense is not directly at issue in  


this appeal.  


                                                                                      -3-                                                                               7240

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

purposes of cross examination and otherwise during the presentation of the evidence."                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 Later, after the State rested its case, Jordan's attorney asked the court "to reconsider its                                                                                                                                                                                                                                                                                                                                                                                                                                           

ruling on the protective order because it's going to in large part affect Mr. Jordan's                                                                                                                                                                                                                                                                                                                                    

 decision whether or not to testify."                                                                                                                                                                                 According to the attorney, Jordan would testify that                                                                                                                                                                                                                                                     

 "he would not expect the amount of marijuana that he had been growing to come out to                                                                                                                                                                                                                                                                                                                                                                                                                                                      

more than four ounces . . . after it was processed by the troopers," and that Jordan's                                                                                                                                                                                                                                                                                                                                                 

belief   was  "informed   by   his   knowledge   and   research   of   the   statutory   method   for  

weighing marijuana . . . prescribed in AS 11.71.080." The attorney said that "if the court                                                                                                                                                                                                                                                                                                                                                                                                                              

would not allow Mr. Jordan to testify as to that, then we would not be calling him."                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

Under these circumstances, the attorney argued, the protective order excluding any                                                                                                                                                                                                                                                                                                                                                                                                                                            

mention   of   the   "one   sixth"   statutory   weighing   method   interfered   with  Jordan's  

 constitutional rights to testify and to present "a full and fair defense."                                                                                                                                                                                                                                                                                                                                                                     

                                                                                   The superior court decided, however, that it was "not going to allow the                                                                                                                                                                                                                                                                                                                                                                        

testimony." The court said Jordan's proposed testimony that his marijuana weighed less                                                                                                                                                                                                                                                                                                                                                                                                                                           

than four ounces seemed "almost ludicrous to me"; given the number of marijuana plants                                                                                                                                                                                                                                                                                                                                                                                                                             

 involved in the case, the court considered the proposed testimony "incredible.                                                                                                                                                                                                                                                                                                                                                                                                                              It just   

 doesn't make sense."                                                                                                                The court added that it was not going to allow Jordan to "get into                                                                                                                                                                                                                                                                                                                         

the law, get into . . . the correct way that the law reads and then make that the issue."                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 The court then inquired of Jordan whether he was voluntarily giving up his right to                                                                                                                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                      4           Jordan answered, "Well, . . . given  

testify, as required by Alaska Criminal Rule 27.1;                                                                                                                                                                                                                                                                                                                                                                                                                                                            

your ruling, . . . I do not wish to testify."  


                                          4                                        Alaska R. Crim. P. 27.1(b)                                                                                                                                           ("If [when the defense rests] the defendant has                                                                                                                                                                                                                            

not testified, the court shall ask the defendant to confirm that the decision not to testify                                                                                                                                                                                                                                                                                                                                                                                                                    

 is voluntary.                                                                    This inquiry must be directed to the defendant personally and must be                                                                                                                                                                                                                                                                                                                                                                                

made on the record outside the presence of the jury.");                                                                                                                                                                                                                                                                                               see LaVigne v. State                                                                                                                , 812 P.2d                      

217, 222 (Alaska 1991) (establishing trial court's responsibility to inquire whether                                                                                                                                                                                                                                                                                                                                                                                                             

waiver of right to testify is voluntary, later adopted as Rule 27.1(b)).                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                    -4-                                                                                                                                                                                                                                                   7240

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

                       B.                     The Jury Instruction               

                                              The superior court instructed the jury that the State had to prove Jordan                                                                                                                                                         

"knowingly possessed a schedule VIA controlled substance; . . . that the substance was                                                                                                                                                                                                    

marijuana;   and   .   .   .   that   the   aggregate   weight   was   four   ounces   or   more."     In   this  

formulation   the   adverb   "knowingly"   modifies   only   the   first   element   of   the   crime,  

possession of "a schedule VIA controlled                                                                                                               substance"; the instructions thus did                                                                                                not  

require the State to prove that Jordan's possession of "four ounces or more" of the                                                                                                                                                                                                         

substance was also knowing.                                                                          The instructions included no mental state requirement at                                                                                                                                     

all as to the amount.                                                  

                       C.                     The Court Of Appeals Decision                                                      

                                              Jordan was convicted of two counts of fourth-degree misconduct involving                                                                                                                                                  

a controlled substance.                                                         On appeal, he argued both that he should have been allowed to                                                                                                                                                    

testify about his subjective belief regarding the marijuana's weight and that the jury                                                                                                                                                                                                   

lacked complete instructions on the mental state necessary to support a guilty verdict.                                                                                                                                                                                                                    


The   court   of   appeals   agreed   with   Jordan   on   both   arguments.                                                                                                                                                                                                  

                                                                                                                                                                                                                                        Citing  the  Alaska  

                                                                                                      6                                                                     7  


Constitution's privacy clause                                                                               and Ravin v. State                                                   - which protect citizens' private  


possession of small amounts of marijuana in the home - the court of appeals held that  


due  process  required  proof  of  a  mental  state  as  to  amount:                                                                                                                                                              that  Jordan  did  not  



"reasonably (i.e., non-negligently) believe[] that [he] possessed less than four ounces." 


The court of appeals also held that Jordan's proposed testimony regarding his subjective  


belief should have been admitted despite the judge's skepticism about it because "it is  

                       5                     Jordan v. State                                      , 367 P.3d 41, 44-45, 53 (Alaska App. 2016).                                                                                        

                       6                      Alaska Const. art. I,  22.                                              

                       7                      537 P.2d 494, 504, 511 (Alaska 1975).                                                                         

                       8                     Jordan, 367 P.3d at 47-48, 52.  


                                                                                                                                                -5-                                                                                                                                    7240

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


the jury's role to assess and resolve questions of truthfulness and credibility."                                                                      The court   

concluded, however, that both these errors were harmless beyond a reasonable doubt                                                                            

because "[t]he evidence was overwhelming that, even if Jordan may have subjectively                                                               

believed that the amount of marijuana in his possession was less than four ounces,                                                                        

Jordan's assessment was unreasonable."                                         10  


             D.	          The Petition For Hearing  


                          Jordan petitioned for hearing, arguing that the superior court's errors were  


structural and therefore not amenable to harmless error review.  We granted review on  


two questions:  


                           1)	           Was  it  structural  error  to  deny  Jordan's  request  to  


                                       testify that he believed the marijuanain his greenhouse  


                                       was under the four-ounce limit?  Should we overrule  


                                       our reliance on the harmless error analysis we applied  


                                       in LaVigne v. State, 812 P.2d 217, 220 (Alaska 1991)?  


                          2)	           Was it structural error to fail to instruct the jury that  


                                       the  State  must  prove  that  Jordan  acted  at  least  


                                       negligently   regarding   the   circumstance   that   the  



                                       marijuana weighed four ounces or more? 

We assume, as the court of appeals did, that Jordan's possession of marijuana under the  


circumstances of this case implicated his privacy rights under the Alaska Constitution.12  


With that assumption, we do not reach the first question because we conclude that  


             9            Id.  at  53.  

             10           Id.  

             11           Jordan   v.   State,   No.   S-16217   (Alaska   Supreme   Court   Order,   Apr.   27,  


             12           See  Jordan, 367   P.3d   at   48   (assuming   "for   purposes   of   this   case"   that  

constitutional  privacy  protection  for  personal use of marijuana  in  the  home  applies  "to  

Jordan's  possession  of  marijuana  in  a  detached  greenhouse  on  his  residential  property").  

                                                                                  -6-	                                                                          7240

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

excluding Jordan's testimony about his mental state regarding the marijuana's weight                                                                                          

was not harmless beyond a reasonable doubt.                                                         Answering the second question, we hold                                          

that the failure to instruct the jury on a contested element of an offense is structural error.                                                                                   

III.           STANDARDS OF REVIEW                         


                             "Whether aclaimhas                            beenpreserved for appeal"                                                                         

                                                                                                                                         and whether dueprocess  


requires a criminal offense to include a mental state are questions of law we review de  


novo, adopting "the rule of law that is the most persuasive in the light of precedent,  



reason,  and  policy."                               "Determining  the appropriate standard  of review is [also] a  



question of law that we review de novo." 

IV.            DISCUSSION  

                             The United States Supreme Court held in Chapman v. California that even  


a  constitutional  error  will  not  necessitate  a  new trial  if  it  was  "harmless  beyond  a  


reasonable doubt."16  


                                                We have applied Chapman's harmless error test to certain cases  

                                                                               17   but  in  other  cases  we  have  declined  to  apply  


involving  constitutional  violations, 

               13             Wagner v. State                   , 347 P.3d 109, 111 n.7 (Alaska 2015).                                 

               14            Khan v. State                 , 278 P.3d 893, 896 (Alaska 2012) (quoting                                                     Turney v. State                   ,  

936 P.2d 533, 538 (Alaska 2012)); see, e.g., State v. Hazelwood, 946 P.2d 875, 878 &  


n.3  (Alaska 1997) (applying de novo review                                                    to thequestion whether due process requires                                  

that a criminal offense include a mental state).                                        

               15            Hutton v. State, 350 P.3d 793, 795 (Alaska 2015).  


               16            386 U.S.  18, 24 (1967).  


               17            E.g.,  Kalmakoff  v.  State,  257  P.3d  108,  130  &  n.113  (Alaska  2011)  


(analyzing whether violation of defendant's right against self-incriminationwas harmless  


beyond a reasonable doubt); LaVigne v. State, 812 P.2d 217, 220, 222 (Alaska  1991)  


("We hold today that [the Chapman] standard of 'harmless error beyond a reasonable  


doubt'  [restated in Love  v. State, 457 P.2d  622 (Alaska  1969)] applies to LaVigne's  



                                                                                            -7-                                                                                   7240

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


harmlesserror review                                          and, upon finding error,havesimplyreversed.                                                                                          This caserequires   

us to decide whether two errors fall into the first category or the second:                                                                                                                                  (1) the failure      

to instruct the jury on a contested element of a crime and (2) the refusal to allow the                                                                                                                                                     

defendant to testify about that contested element.                                                                 

                                      The   United   States   Supreme   Court   refers   to   the   category   of   errors   not  

amenable   to  harmless   error   review   as   "structural   defects"   that   "   'defy   analysis   by  

"harmless-error" standards' because they 'affec[t] the framework within which the trial                                                                                                                                                   

proceeds,' and are not 'simply an error in the trial process itself.' "   19  Structural errors  

require  automatic  reversal  and  a  new  trial.20                                                                                         In  determining  whether  an  error  is  


 structural, the Supreme Court "rest[s] [its] conclusion . . . upon the difficulty of assessing  


                   17                 (...continued)  


claim of constitutional error [for denial of his right to testify].").  

                   18                 E.g.,   Wassillie v. State                                       ,    441 P.3d 595 (Alaska 2018) (reversing without                                                                      

harmless error review for violation of defendant's right to valid grand jury indictment);  


Hutton v. State, 350 P.3d 793 (Alaska 2015) (reversing without harmless error review  


when defendant was misadvised of the elements of the charges against him before  


waiving right to jury trial); Gregory v. State, 550 P.2d 374, 381 (Alaska 1976) (reversing  


without harmless error review when defendant was not informed of benefits of counsel  


before waiving right to counsel and pleading guilty).  

                   19                  United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (alteration in  


original) (quoting Arizona v. Fulminante , 499 U.S. 279, 309-10 (1991)).  


                   20                 5 AM. J   UR. 2                    D  Appellate Review                                    672 (2017) ("Constitutional 'trial error,'                                                        


which occurs during the presentation of the case to the jury, does not automatically                                                                                                                          

require reversal, and is subject to the harmless error analysis; only in rare cases is an                                                                                                                                                     

error deemed 'structural error' that requires automatic reversal." (citing cases)).                                                                                                                          

                                                                                                                       -8-                                                                                                             7240

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

the effect of the error" and considers other factors, including fundamental fairness and                                                                           


whether harmlessness is irrelevant under the circumstances.                                                               


             A.	          If  Jordan's  Constitutional  Privacy  Rights  Are  Implicated  By  His  


                          Marijuana Possession, It Was Error To Give A Jury Instruction That  


                          Omitted A Mental State Element.  


                          TheStateargues that thepossessionoffensewithwhich Jordan was charged  


imposed strict liability with regard to the amount:  that is, that the defendant need only  


know that he possessed marijuana, not that it weighed four ounces or more.  The State  


argues that the trial court therefore could not have erred when it prevented Jordan from  


testifying about his subjective intent or when it failed to instruct the jury on a mental  



state specific to the amount. Although this question is not clearly before us,                                                                       we briefly  


address  the  State's argument  because  the  existence  of  an  error  is  a  prerequisite  to  


deciding if the error was structural.  


                          The court of appeals agreed with the State that the legislature did not intend  



to tie a mental state requirement to the weight element of the possession offense. 


the court appropriately went on to consider whether this created due process concerns.  


The court examined our holdings in State v. Rice and State v. Hazelwood to articulate an  


analytical framework:  "First, the fact that an offense deals with a subject matter that is  

             21	          Gonzalez-Lopez, 548 U.S. at 149 & n.4.                                          

             22           Jordan  points  out  that  the  State  did  not  cross-petition  on  the  court  of  


appeals' finding of error in Jordan's case and did not petition for hearing in                                                                     Letendre v.   

State (A-11271), which was consolidated with Jordan's case in the court of appeals for  


consideration of the mens rea question.                                       Jordan v. State                , 367 P.3d 41, 45 (Alaska App.                     


             23           Id. at 46-48.  As the court of appeals correctly noted, the statute is silent  


about any culpable mental state, either for possession itself or for the amount possessed.  


Former AS 11.71.040(a)(3)(F) (2008).  


                                                                                  -9-	                                                                          7240

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

normally considered 'regulatory' does not automatically exempt the government from                                                                          

having to prove a culpable mental state"; and second, whether due process requires proof                                                                                                

of a mental state depends on a "case-by-case" examination of the offense, "considering                                                                                 

(1)  the severity of the penalty and (2) the fairness or unfairness of imposing that penalty                                                                                        

                                                                                                     24     Applying this framework, the court of  

on people who violate the law unwittingly."                                                                                                                                                    

appeals concluded that - because Alaska's "constitutional right of privacy protects an  


adult's right to possess . . . marijuana in their home for personal use"25                                                                                        - due process  


"requires the State to prove that the defendant acted at least negligently regarding the  


circumstance that the marijuana weighed four ounces or more."26  


                              We agree with the court ofappeals' analysis and conclusion. In Hazelwood  


we discussed liability for "objective fault crimes," that is, offenses "based either on strict  


liability or negligence" that "do not require any subjective awareness of wrongdoing on  


the defendant's part."27  We concluded that criminal responsibility rests ultimately on the  


reasonableness of society's "expectation of individual conformity," which means that  


society's interest in conformity to its regulations "can never outweigh the individual's  


interest in freedom from substantial punishment for a violation he or she could not  


reasonably have been expected to avoid."28  


               24             Jordan, 367 P.3d at 49-52 (discussing                                                 State v. Rice                , 626 P.2d 104, 106-10             

(Alaska 1981) and                          State v. Hazelwood                          , 946 P.2d 875, 878-80 (Alaska 1997)).                                   

               25             Id. at 52; see also Ravin v. State, 537 P.2d 494, 504, 511 (Alaska 1975)  


(holding  that  "possession  of  marijuana  by  adults  at  home  for  personal  use  is  


constitutionally protected").  


               26             Jordan, 367 P.3d at 52.  


               27             Hazelwood, 946 P.2d at 882 & n.14.  


               28             Id. at 883.  


                                                                                             -10-                                                                                        7240

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

                           This "principle of reasonable deterrence" generally allows the government                                                 

to    impose    strict    liability    "when    the    failure    to    abide    by    a    rule    is    inherently  



unreasonable."                     Such situations include, for example: (1) when "a person's conduct is  


hedged  in  by  regulation,  such  that  one  may  reasonably  assume  his  or  her  routine  



decisions are guided by rules";                                 (2) when conduct is "malum in se," that is, so obviously  



wrong that all reasonable members of society recognize it as such;                                                                              and (3) when  



violations "call for only a modest fine."                                           The possession of marijuana in the home in  


an amount which may or may not be in excess of a statutory limit - and which if less  


than the limit is concededly not a violation of state law - fits none of these categories.  


Society cannot reasonably expect the law to deter people from possessing an amount of  



marijuana in the home that a reasonable person would believe was legal.                                                                           We therefore  


agree with  the court of appeals'  conclusion  that because  Alaska's  right of privacy  


protects some personal possession of marijuana,  the State may not "impose felony  


penalties . . . on people who honestly and reasonably, but mistakenly, believe that they  


possess  a  permissible  amount  of  marijuana  in  their  home"  without  "significantly  

             29           Id.  

             30           Id.  (discussing personsin "rule-laden environments,...                                                    whoseactions                  have  

a substantial impact on public health, safety, or welfare" (citing                                                             Cole v. State            , 828 P.2d     

 175, 178 (Alaska App. 1992))).                

             31           Id.  

             32           Id. at 883-84.  


             33           Id.  at  883  (holding  that  mental  state  of  ordinary  negligence  "[was]  


constitutionallypermissible because it approximates what the due process guarantee aims  


at:  an assurance that criminal penalties will be imposed only when the conduct at issue  


is something society can reasonably expect to deter").  


                                                                                  -11-                                                                            7240

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


undercut[ting]" this constitutional protection.                                                                                Assuming that this protection extended                                            

to Jordan's possession of marijuana in his detached greenhouse, we agree that the State                                                                                                                                     

was required to prove a mental state as to the weight of marijuana in Jordan's possession.                                                                                                                 

                                    The State argues that                                    Hazelwood  should not apply because the law at issue                                                                           

is a "public welfare statute" and because the legislature intended that there be no mental                                                                                                                             

 state requirement.                                 We disagree.                             First, marijuana possession is not what is usually                                                                      

understood as a "public welfare" offense, "where the penalties are relatively small and                                                                                                                                        

                                                                                                                                                                   35   Under the law as it then  

conviction does no great danger to an offender's reputation."                                                                                                                                                               

existed, Jordan was convicted of a felony and faced a possible five-year prison sentence,  


though he was ultimately sentenced to two years.36  


                                    Second, the legislature cannot exempt a statute from due process analysis  


 simply by demonstrating a clear intent to do away with a mens rea requirement.   In  


Hazelwood, noting concern that "even crimes which had traditionally required proof of  


criminal  intent  have  been  recharacterized  as  strict  liability  crimes,"  we  rejected  an  


                  34                Jordan v. State                          , 367 P.3d 41, 52 (Alaska App. 2016).                                                



                                    Speidel v. State, 460 P.2d 77, 80 (Alaska 1969); see also Morissette v.  


 United States, 342 U.S. 246, 256 (1952), discussed with approval in Hazelwood, 946  

P.2d at 880.                         Early examples of "public welfare" offenses in American jurisdictions                                                                                             


include "selling adulterated milk" or "a tavernkeeper . . . selling liquor to an habitual  


drunkard."  Morissette, 342 U.S. at 256.  

                  36                See Speidel, 460 P.2d at 80 (holding that felony conviction and potential  


"five-year  prison  term for  simple  neglectful  or  negligent  failure  to  return  a  rented  


automobile at the time specified in the rental agreement" meant that crime was not  


"public welfare" offense).  


                                                                                                               -12-                                                                                                         7240

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


exception based on clear legislative intent.                                   And "[s]trict liability cannot be applied                


simply to expedite punishment when there is no reasonable expectation of deterrence."                                                                 

                       The State alternatively asserts that the conduct at issue here falls into other  


groupings of possible strict liability offenses:  either that Jordan's marijuana possession  


was malum in se ("when the failure to abide by a rule is inherently unreasonable" such  


as  where  "  'awareness  of  the  commission  of  the  act  necessarily  carries  with  it  an  


awareness of wrongdoing' ") or that it was so "hedged in by regulation . . . that one may  


readily assume his or her routine decisions are guided by rules."39                                               But we do not agree  


that marijuana possession necessarily falls into either category. Possession of marijuana  


in the home for personal use is constitutionally protected and cannot be malum in se.  


And personal marijuana possession does not occur in a "rule-laden environment[]" such  


as a heavily regulated industry, in which persons "can reasonably be assumed aware of  


their governing codes."40  


                                                                                                                41 the State argues that  

                       Finally, citing Morgan v. Municipalityof Anchorage,                                                                     


the  court  of  appeals'  decision  in  this  case  is  inconsistent  with  its  decisions  in  the  


analogous context of drunk driving. Case law holds that drunk driving offenses involve  


           37          Hazelwood, 946 P.2d at 882 ("An exception to the mens rea requirement  


for 'clear legislative intent to the contrary' has the potential to swallow the rule.  As we  


said in Speidel, even where a statute is explicit, due process will on occasion require a  


higher degree of culpability." (first citing McCutcheon v. People, 69 Ill. 601, 601 (1873);  


then citing State v. Baltimore & Susquehanna Steam Co., 13 Md. 181, 186 (1859); and  


then citing Speidel, 460 P.2d at 80)).  

           38          Id. at 884.  


           39          Id. at 883 (quoting Hentzner v. State, 613 P.2d 821, 826 (Alaska 1980)).  


           40          Id.  

           41          643 P.2d 691, 692 (Alaska App.  1982).  


                                                                       -13-                                                                 7240

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


strict liability with regard to the amount of alcohol in a defendant's blood;                                                        the State   

need only prove that a defendant knowingly consumed alcohol and drove, not that the                                                             


defendant knew he had consumed more than the allowable limit.                                                        


                       The court of appeals addressed the drunk driving standard in several recent  

          44   In McCarthy v. State it explained why the mental state requirements for drunk  


driving offenses are consistent with Hazelwood : "[P]roof that the defendant knowingly  


drank alcoholic beverages, coupled with proof that the defendant became impaired, or  


that the defendant drank to the point where their blood alcohol level exceeded the legal  


limit, is itself sufficient to meet the minimal due process requirement for imposing  


criminal liability."45  As the court of appeals recognized in this case, the Rice/Hazelwood  


test is flexible and case-specific and supports a different result here.46                                                      The unique  


circumstances  of  the  privacy  protection  for  marijuana  possession  in  the  home,  the  


increased safety concerns with drunk driving on public streets,47  and the fact that blood  


alcohol thresholds are arguably meant to deter driving at any level of intoxication are  


sufficient to distinguish drunk driving from the possession of marijuana.  


           42          McCarthy  v.  State,  285  P.3d  285,  290  (Alaska  App.  2012)  (citing  cases).  

           43          Id.  

           44          See   Jordan   v.   State,   367   P.3d  41,  51-52   (Alaska   App.   2016)   (citing  

Solomon  v.  State,  227  P.3d  461,  467-68  (Alaska  App.  2010)).   

           45          McCarthy,  285  P.3d  at  292  (citing  Valentine  v.  State,  155  P.3d  331  (Alaska  

App.   2007),   reversed   on   other  grounds   by   Valentine   v.  State,   215   P.3d   319   (Alaska  


           46          Jordan, 367 P.3d at 52.  


           47          Ravin noted serious public safety concerns related to marijuana use while  


driving and limited its holding to possession of marijuana in the home.  Ravin v. State,  


537 P.2d 494, 511 (Alaska 1975).  


                                                                       -14-                                                                 7240

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

                        In sum, we agree with the court of appeals that when the defendant's                                       

possession   of   marijuana   implicates   the   constitutional   privacy   rights   recognized   in  



Ravin,   the failure to instruct the jury on a mental state related to the marijuana's amount  


is error.  


            B.         Jordan Preserved His Right To Appeal The Jury Instructions.  


                        Our standard of review depends on whether Jordan properly preserved his  



objection in the trial court.                        Absent timely objection, we generally review claims of  


error for plain error, requiring an appellant to establish the following: (1) that there was  


an error that was not "the result of an intelligent waiver or a tactical decision not to  


object"; (2) that the error was obvious; (3) that the error "affect[ed] substantial rights,  


meaning that it must pertain to the fundamental fairness of the proceeding"; and (4) that  



                                                     Here,  Jordan  did  not  explicitly  request  an  instruction  

the  error  was  prejudicial. 


requiring the jury to find a culpable mental state applicable to the marijuana's weight.  


And in the court of appeals he advocated "plain error" review, asserting that the court  


should address his argument despite his failure to object to the instructions given.  


                       We conclude, however, that Jordan's objection was preserved and that we  


therefore need not decide whether any error amounted to plain error.   Jordan's trial  


attorney argued repeatedly and at length about the legality of the weighing method used  


by the police; he argued that it was a "jury issue" and a "due process issue" relevant to  


whether Jordan should have known he was acting illegally. Opposing the State's request  

            48         Id.  at 504, 511.     



                       Khan v. State, 278 P.3d 893, 896 (Alaska 2012) ("Trial errors to which the  


parties did not object are reviewed for plain error.").  

            50          Goldsbury v. State, 342 P.3d 834, 837 (Alaska 2015) (quoting Adams v.  


State, 261 P.3d 758, 773 (Alaska 2011)).  


                                                                        -15-                                                                   7240

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

for a protective order, Jordan's attorney argued that his client's testimony was "relevant                                                                                                                                                           

to establish his state of mind at the time of the possession" and that the protective order                                                                                                                                                                      

"essentially den[ied] . . . Jordan a very important defense, which is actual knowledge of                                                                                                                                                                                  

the amount."                               During discussions about jury instructions, Jordan's attorney argued that                                                                                                                                                  

if Jordan "honestly believed that this isn't the case, that he possessed more than four                                                                                                                                                                             

ounces, then it would be a defense."                                                                               And the prosecutor countered by advocating strict                                                                                              


                                          Although Jordan characterizes the error as structural for the first time on                                                                                                                                                    

this appeal, his argument presents not a wholly new issue but rather a different standard                                                                                                                                                             

                                51      The trial court was made aware of the alleged error - that the jury was not  

of review.                                                                                                                                                                                                                                                             

informed of Jordan's defense that he reasonably believed he possessed less than four  


ounces.  We therefore consider Jordan's structural error arguments de novo rather than  


under the test for plain error.  


                     C.	                  If  Jordan's  Constitutional  Privacy  Rights  Are  Implicated  By His  


                                          Marijuana  Possession,  The  Failure  To  Instruct  The  Jury  On  All  


                                          Contested Elements Of The Charged Offense Violated His Right To A  


                                          Jury Trial And Was Structural Error.  


                                          Assuming that Jordan's marijuana possession implicated his constitutional  


privacy rights, both the failure to instruct the jury on a mental state for the amount of  


marijuana and the exclusion of Jordan's testimony on that subject constituted serious  


violations of his rights to testify and to present a defense.52                                                                                                                            The superior court's failure  


                     51                   LaVigne v. State                                     , 812 P.2d 217, 220 (Alaska 1991) (classifying question                                                                                                

whether harmless error or automatic reversal is appropriate as "the standard of review"                                                                                                                                                                 

for constitutional violation).                          

                     52                   See  Rock  v.  Arkansas,  483  U.S.  44,  51-53  (1987)  ("A  defendant's  


opportunity to conduct his own defense by calling witnesses is incomplete if he may not  


present himself as a witness.");  Wagner v. State, 347 P.3d 109, 115-16 (Alaska 2015)  



                                                                                                                                   -16-	                                                                                                                          7240

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


to instruct the jury also infringed on Jordan's right to a jury trial.                                            We focus today on           

the jury trial right.       

           52          (...continued)  


(noting that "[a]ny ruling, even if on a mere evidentiary issue, necessarily affects a  


defendant's constitutional rights if it has a chilling effect on the exercise of the right to  


testify" but ultimately holding that defendant had to testify at trial to preserve objection  


to trial court's  in limine ruling allowing prosecution to impeach him with his prior  


statement to police (quoting People v. Boyd, 682 N.W.2d 459, 464 (Mich. 2004)));  


 Valentine v. State, 215 P.3d 319, 326-27 (Alaska 2009) (explaining that "a defendant's  


due process rights are denied when a legislative enactment substantially limits the right  


to present a defense" and finding such a violation where DUI statute prevented defendant  


from  presenting  "delayed-absorption  evidence"  to  attack  State's  "proof  that  the  


defendant was under the influence at the time of driving," an element of the offense);  

Smithart v. State, 988 P.2d 583, 588-89 (Alaska 1999) (holding that trial court abused  


its discretion by excluding defendant's evidence that third party committed the crime  


"because identity was the central issue in the case, [so] the trial court's refusal to admit  


the evidence implicated [the defendant's] right to fully present his defense"); LaVigne,  


812 at 219-20 ("The ultimate decision whether to exercise the right [to testify] . . . rests  


with the defendant, not with defendant's counsel.   For this reason, counsel may not  


effectively waive a defendant's right to testify against the defendant's will.").  

           53         Alaska Const. art. I,  11;  United States v. Booker, 543 U.S. 220, 230  


(2005); Baker v. City of Fairbanks, 471 P.2d 386, 401 (Alaska 1970) ("[I]n any criminal  


prosecution . . . the accused upon demand is entitled to a jury trial.").  


                      We treat the error here as a violation of Jordan's right to a jury trial rather  


than due process.  But see Khan v. State, 278 P.3d 893, 899 (Alaska 2012) (concluding  


that  superior  court's  failure  to  instruct  on  jury  unanimity  presented  due  process  


question).  Jordan argued before the court of appeals that the omission violated his right  


to due process, and the court relied on due process as the basis for  a  mental  state  


requirement. Jordan v. State, 367 P.3d 41, 52 (Alaska App. 2016).  But we consider the  


error a jury trial violation because the error affected the completeness of the jury's  


verdict rather than the process by which the jury reached its verdict.  See Khan, 278 P.3d  


at 899 ("If the jury is not required to agree on what criminal conduct a defendant has  


committed,  there  can  be  no  guarantee  that  the  jury  has  agreed  that  the  defendant  


committed a crime beyond a reasonable doubt.").  


                                                                      -17-                                                               7240

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

                       The United States SupremeCourt decided in                                Neder v. United States                that the   


erroneous omission of an essential element fromjury instructions is not structural error.                                                           

But Alaska's constitutional protections are not limited by the reach of their federal  


                      55  and we are not bound by Neder.  Jordan urges us to reject that decision's  




                       1.         Past Alaska cases do not direct a particular result.  


                       In early cases we highlighted the breadth and importance of the right to a  


jury  trial  and  automatically  reversed  convictions  if  the  right  was  violated. 56  



explained that our broad reading of the jury trial right  


                       is bottomed on our belief that the right to jury trial holds a  


                       central position in the framework of American justice, and  


                       our further belief as to the primacy which must be accorded  


                       the accused's right to a fair trial against considerations of  



                       convenience or expediency to the state.                                 

On the other hand, we applied harmless error review when a trial court failed to grant a  


requested instruction on self-defense.58  And we applied harmless error review to similar  


violations in later cases when the defendant's failure to object at trial required us to  


            54         527  U.S.   1,  4,  9  (1999).  

            55         State  v.  Browder,  486  P.2d  925,  936  (Alaska   1971).  

            56         Id.  at  937-40, 943  (affirming  reversal  and remand  for  jury  trial after  trial  

court  denied  jury  trial  to  defendant  charged  with  criminal  contempt  and  explaining  that  

"a  right  to  jury  trial  in  a  direct  criminal  contempt  situation  is  'necessary  for  the  kind  of  

civilized life and ordered liberty which  is at the core of our constitutional heritage' ");  

Baker,   471   P.2d   at   402-03  (expanding   jury   trial   right   to   include   prosecutions   for  

violations  of  municipal  ordinance  and  reversing  conviction  where  defendant  was  denied  

jury  trial  when  charged  with  violation  of  municipality's  assault  ordinance).   

            57         Browder, 486 P.2d at 937 (discussing Baker, 471 P.2d at 394, 396).  


            58         Weston v. State, 682 P.2d 1119, 1122-23 (Alaska 1984).  


                                                                      -18-                                                               7240

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

 review the case for plain error - a necessary element of which is prejudice, i.e., that the                                                                                                                          


 error was not harmless beyond a reasonable doubt.                                                                                       

                                   The State  suggests that our use of the "harmless beyond a reasonable  


 doubt" test in analogous plain error cases requires that we treat the error here as a trial  


 error, subject to the same review.   But relying on plain error precedent alone would  


prevent us from ever recognizing a structural error - an error that by definition is not  


 subject to harmless error review because it affects the entire framework of the case.60  


                                   Plain error cases aside, in other cases we have declined to apply harmless  


 error review and instead automatically reversed convictions once we identified an error  


 of  constitutional  dimension.                                                  In  Greenwood  v.  State  we  automatically  reversed  a  


 conviction after the superior court erroneously refused to give a jury instruction on the  


                                               61    Reasoning that "[t]he implausibility of a defendant's story, or any  

 necessity defense.                                                                                                                                                                                                 


                  59               SeeAndersonv. State                                  , 372 P.3d263,264-65(Alaska2016) (explaining                                                                                that  

 "effect-on-the-jury"   approach   should   be   used   to  determine   whether   lack   of   jury  

 unanimity instruction was harmless beyond a reasonable doubt "under the prejudice                                                                                                                   

prong of the plain error analysis");                                                          Khan v. State                       , 278 P.3d 893, 899 (Alaska 2012)                                           

 (concluding that failure to give unanimity instruction was due process violation subject                                                                                                                   

 to harmless error review under plain error's prejudice prong);                                                                                             Thomas v. State                         , 522 P.2d     

 528, 531-32 (Alaska 1974) (concluding that no prejudice resulted fromfailure to instruct                                                                                                                  

jury that knowledge of nature of drug at issue was element of the offense).                                                                                                                      

                  60               See  United  States  v.  Gonzalez-Lopez,  548  U.S.140,  148-50  (2006)  


 (concluding that certain errors "with consequences that are necessarily unquantifiable  


 and  indeterminate  unquestionably  qualif[y]  as  structural  error[s]"  and  discussing  


 "speculative" nature and impossibility of harmless-error inquiries in such contexts).  


                  61               237  P.3d  1018,  1027  (Alaska  2010)  (concluding  that  defendant  had  


presented "some evidence" of each element of necessity defense, mandating instruction  


 on the defense).  


                                                                                                          -19-                                                                                                   7240

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

weakness in the evidence supporting that story, is not a relevant consideration" for the                                                         

judge, we held that the jury should have been given the instruction.                                                 62  

                       In Smallwood v. State, a plain error case, the court of appeals declined to  



 apply harmless error review to an erroneous instruction on a conclusive presumption.                                                                   


The court held that "harmless error principles should not be applied to a jury instruction  


which conclusively establishes an essential element of the crime charged," because the  


 error "essentially directed a verdict for the prosecution on one of the essential elements  


of the charge" and allowed "the wrong entity [to] judge[] the defendant guilty."64                                                          Later  


decisions   applied   this   reasoning   in   non-plain-error   cases   involving   erroneous  


presumptions.65               But where essential elements of charged offenses have been omitted  


 from jury instructions, the court of appeals has taken varying approaches.  In Pitka v.  


State the court automatically reversed, explaining that "it is constitutional error not to  


instruct on an essential element of a crime 'because it lets [the jury] convict without  


                                                                               66  But, in a later case involving an omitted  

 finding the defendant guilty of that element.' "                                                                                        


            62         Id.  at   1024.  

            63         781  P.2d   1000,   1003-05  (Alaska  App.   1989).  

            64         Id.  at   1003-04  (quoting  Rose  v.  Clark,  478  U.S.  570,  578  (1986)).   

            65         See,   e.g.,   Fielding   v.   State,   842   P.2d   614,   615-16   (Alaska   App.   1992)  

 (extending  Smallwood  to  non-plain-error   case  where  judge   erroneously took  judicial  

notice  and  instructed  jury  that  Glenn  Highway  met  statutory  definition  of  "highway,"  an  

element  of  the  charged  offense  of  "driving  while  license  suspended");  see  also  Rae  v.  

State,   884  P.2d   163,   166-67   (Alaska  App.   1994)   (reiterating Smallwood's  holding  in  

plain  error  case  where  judge  erroneously  took  conclusive  judicial  notice  that  defendant's  

license  had  been  revoked  at  time  of  charged  offense  of  "driving  while  license  revoked").  

            66         995 P.2d 677, 680 (Alaska App. 2000) (quoting United States v. Tagalicud,  


 85 F.3d 1180, 1184 (9th Cir. 1996)) (alteration in original).  


                                                                        -20-                                                                 7240

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

element, the court of appeals reversed only after concluding that the error was not                                                                                                                 


                                We conclude that our case law in this area does not point definitively to a  


particular result.  


                                2.	            Under Neder v. United States, omitting an essential element from  


                                               a jury instruction is not structural error but rather is subject to  


                                               harmless error review.  


                                The trend of federal law is readily discernible: The Supreme Court has held  


that the failure to instruct a jury on an element of a crime is subject to harmless error  


review.68               In Neder v. United States, involving false statement, fraud, and racketeering  


charges, the trial court failed to instruct the jury that the materiality of the alleged  


falsehood  was  a  required  element  of  some  of  the  offenses.69                                                                                       The  Supreme  Court  


ultimately remanded for the trial court  to decide whether the error was harmless.70  


Refusing to categorize the omission as structural error, the Supreme Court reasoned that  


                67             Maness   v.   State,   49   P.3d  1128,   1132   (Alaska   App.   2002)   (reversing  

weapons misconduct conviction upon finding that failure to instruct jury on "the nexus                                                                                                        

element of the offense" was not "harmless beyond a reasonable doubt");                                                                                                see also Lengele     

v.  State, 295 P.3d 931, 937 (Alaska App. 2013) (in plain error case, applying harmless                                                                                                

error review to claim that jury instructions failed to address reasonable termination of                                                                                                               

employment as defense to criminal nonsupport);                                                                          Dailey v. State                      , 65 P.3d 891, 896                   

(Alaska   App.   2003)   (applying   harmless   error   review   to   instruction's  incomplete  

description of mental state regarding defendant's duty                                                                                 to   register   as sex                       offender);  

McKillop v. State                          , 857 P.2d 358, 366 (Alaska App. 1993) (applying harmless error                                                                                      

review to instruction's erroneous definition of intent required to convict for telephone   


                68             Neder v. United States, 527 U.S.  1, 4 (1999).  


                69             Id. at 6, 8.  


                70             Id. at 25 ("[W]e remand this case to the Court of Appeals for it to consider  


in the first instance whether the jury-instruction  error was harmless.").  


                                                                                                 -21-	                                                                                          7240

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

"an   instruction   that   omits   an   element   of   the   offense   does   not   necessarily   render   a  

criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or                                                                            



innocence."                Pointing to its previous conclusion in Johnson v. United States - that the  


failure  to  instruct  on  an  element  of  the  offense  was  not  necessarily  prejudicial  for  



purposes of plain error review                                - the Court in Neder rejected "the argument that the  



omission of an element will always render a trial unfair."                                                          The Court concluded that  


"improperly omitting an element from the jury can 'easily be analogized to improperly  


instructing  the  jury  on  an  element  of  the  offense,  an  error  which  is  subject  to  



harmless-error analysis.' " 


                          The Court distinguished Sullivan v. Louisiana, in which it had held that a  



defective "reasonable doubt" instruction amounted to structural error.                                                                 Unlike the error  


in Sullivan, which  "vitiate[d] all the jury's findings," the omission of a single element  



affected  only a single finding.                                   Although the Court noted that "[i]t would not be  


illogical to extend the reasoning of Sullivan . . . to a failure to instruct on an element of  

             71          Id.  at 9 (emphasis in original).          

             72           520 U.S. 461, 470 (1997) (holding there was no prejudice for failure to                                                                 

instruct  on  materiality  element  -  and  therefore  no  plain  error  occurred  - where  


"evidence supporting materiality was 'overwhelming' " and the issue "was essentially  


uncontroverted at trial").          

             73          Neder, 527 U.S. at 9 (emphasis in original).  


             74          Id. at 10 (quoting Johnson, 520 U.S. at 469).  


             75           508 U.S. 275, 279-82 (1993).  


             76          Neder, 527 U.S. at 11 (emphasis in original) (quoting Sullivan, 508 U.S. at  



                                                                               -22-                                                                         7240

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

the crime," it concluded that its application of harmless error review in other contexts                                                                                  

mandated that it be applied as well to the omission of an essential element.                                                                                                    77  

                                  Justice Scalia dissented, joined by Justices Souter and Ginsburg.   The  


dissent  reasoned  that  "[t]he  constitutionally  required  step  that  was  omitted  here  is  


distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury  


right, the Constitution does not trust judges to make determinations of criminal guilt."78  


In other words, applying harmless error in these circumstances simply compounds the  


original error:  


                                The Court's decision today is the only instance I know of (or  


                                could conceive of) in which the remedy for a constitutional  


                                violation  by  a  trial  judge  (making  the  determination  of  


                                criminal guilt reserved to the jury) is a repetition of the same  


                                constitutional violation by the appellate court (making the  


                                determination of criminal guilt reserved to the jury).[79]  



Justice  Scalia  continued,  "A  court  cannot,  no  matter  how  clear  the  defendant's  


culpability, direct a guilty verdict."80  He therefore questioned "why, if denying the right  


to conviction by jury is structural error, taking one of the elements of the crime away  


from the jury should be treated differently from taking all of them away-since failure  


                77             Id.   at 11,             15   ("Although  this strand                                      of the reasoning                          in   Sullivan   does  

provide   support for Neder's position, it cannot be squared with our harmless-error                                                                                     

cases.");  see also California v. Roy                                             , 519 U.S. 2, 3, 5 (1996) (applying harmless error to                                                                 

federal habeas case involving omitted jury instruction);                                                                          Carella v. California                             , 491 U.S.     

263, 264, 266 (1989) (applying harmless error to improper instruction);                                                                                                Pope v. Illinois                   ,  

481 U.S. 497, 499-502 (1987) (applying harmless error to improper instruction).                                                                                   

                78             Neder, 527 U.S. at 32 (Scalia, J., dissenting) (emphasis in original).  


                79             Id.  

                80             Id.  at 33 (citing Carpenters v. United States, 330 U.S. 395, 408 (1947);  


Rose  v.  Clark, 478 U.S.  570, 578 (1986); Arizona  v. Fulminante, 499 U.S. 279, 294  


(1991) (White, J., dissenting)).  


                                                                                                 -23-                                                                                           7240

----------------------- Page 24-----------------------


to prove one, no less than failure to prove all, utterly prevents conviction."                                                                Justice  

Scalia also criticized the  Neder majority as tacitly retreating from                                                  Sullivan:  "Whereas  

Sullivan confined appellate courts to their proper role of reviewing  verdicts, the Court  

today puts appellate courts in the business of reviewing the defendant's                                                          guilt ."82  

                        3.	         The dissent in Neder v. United States  is more consistent with  


                                    Alaska's constitutional protections.  


                        "Although we carefully consider and 'find substantial guidance in cases  


interpreting the United States Constitution,' we are not bound by those decisions when  


interpreting state constitutional law."83   We decide that the failure to instruct the jury on  


an essential and contested element of a crime is structural error; we thus reject Neder .  


We find the Neder dissent compelling. The Alaska Court of Appeals noted almost thirty  


years ago that the omission of a contested element from jury instructions "essentially  


direct[s] a verdict for the prosecution on one of the essential elements of the charge";84  


            81          Id.  (emphasis  in  original).  

            82          Id.  at  39  (emphasis  in  original).   

            83          Majaev   v.   State,   223   P.3d   629,   632   (Alaska   2010)   (quoting  Anchorage  

Police  Dep't   Emps.  Ass'n   v.  Municipality   of  Anchorage , 24 P.3d   547,   550   (Alaska  


            84          Smallwood  v.  State,  781  P.2d   1000,   1003  (Alaska  App.   1989).  

                                                                          -24-	                                                                    7240

----------------------- Page 25-----------------------


we agree with Justice Scalia that such a result seriously undermines the jury-trial right.                                                                                                                                                                          



Other states have rejected Neder for the same reason. 

                                        The  State  points  out  that  negligence  is  an  objective  standard,  "[a]nd  


Alaska's appellate courts regularly review [trial court] records to determine whether a  


person's subjective belief is objectively reasonable."87                                                                                                            But the jury's role in a criminal  


case is not limited to deciding those facts that cannot be objectively determined by the  


                    85                 Neder, 527 U.S. at 32 (Scalia, J., dissenting) (explaining that failure to                                                                                                                                         

instruct on essential element of crime charged "is distinctive, in that the basis for it is                                                                                                                                                                

precisely that, absent voluntary waiver of the jury trial right,                                                                                                                     the Constitution does not                         

 trust judges to make determinations of criminal guilt                                                                                                       " (emphasis in original));                                                 see also   

Rae v. State                       , 884 P.2d 163, 167 (Alaska App. 1994) ("[Taking conclusive judicial notice                                                                                                                                 

of an element of a criminal charge] is reversible error without regard either to whether                                                                                                                                                 

there was an objection from the defense, or to whether the defendant suffered any                                                                                                                                                                    

prejudice other than having had his guilt adjudged by the wrong entity." (citing                                                                                                                                                       Fielding  

v.  State, 842 P.2d 614 (Alaska App. 1992))).                                                                

                    86                  The  New  Hampshire  Supreme  Court  rejected  Neder,  concluding  that  


because "[t]he jury was never instructed on the definition of deadly weapon[,] . . . its  


verdict  was  necessarily  incomplete  and  'akin  to  the  direction  of  a  verdict  for  the  


prosecution  on  an  element  of  the  offense  charged,'  "  a  structural  error.                                                                                                                                                      State  v.  


Kousounadis, 986 A.2d 603, 615 (N.H. 2009) (quoting State v. Williams, 581 A.2d 78,  


 80 (N.H. 1990)).  The Mississippi Supreme Court applied similar logic, concerned that  


"[e]ngaging in harmless error analysis here would mean determining [the defendant's]  


guilt without a jury ever deciding whether he committed a single element of the crime."  


Harrell v. State, 134 So. 3d 266, 274 (Miss. 2014).  


                    87                  The State also argues that this was a "mistake-of-law" defense appropriate  


 for the judge to decide, not the jury.  But a "mistake-of-law" defense "assert[s] that a  


defendant did not understand the criminal consequences of certain conduct."  Mistake  


of law, BLACK'S  LAW  DICTIONARY  (10th ed. 2014). We agree with Jordan that the issue                                                                                                                                                            


was for the jury as a "mistake-of-fact" defense:                                                                                                 He correctly understood the law but                                                                   

mistakenly believed the amount he possessed was less than four ounces.                                                                                                                                             Mistake of fact                             ,  

BLACK 'S   LAW   DICTIONARY   (10th ed. 2014) ("The defense asserting that a criminal                                                                                                                                                  

defendant acted from an innocent misunderstanding of fact rather than from a criminal                                                                                                                                                 


                                                                                                                           -25-                                                                                                                   7240

----------------------- Page 26-----------------------

judge.   And as Jordan points out, the jury had no opportunity to decide in the first                                                                                                                                                                         

 instance whether his defense was a reasonable one:                                                                                                                   The jury was not informed that                                                           

 reasonableness was an issue, Jordan did not testify about it, and "[n]o jury would find                                                                       

 that a defendant was reasonably mistaken about the weight of his crop if the jury did not                                                                                                                                                                        

 hear  him   say   he   was   actually   mistaken"   in   his   testimony.     Again,   assuming   that   

 constitutional privacy protections apply to Jordan's marijuana possession in this case,                                                                                                                                                                    

 there was a contested issue whether Jordan was at least negligent with regard to the                                                                                                                                                                            

 weight of the marijuana in his possession, and                                                                                                          it should                      have been                           for   the jury                           to  


                                          Applyingharmless error reviewto theomission ofacontestedelementfrom  


 a jury instruction would also present practical problems, as the Supreme Court observed  


                                                                                       89             The   Supreme   Court   concluded   that   -   because  

 in   Sullivan   v.   Louisiana.                                                                                                                                                                                                               


 "hypothesiz[ing]aguilty verdict that was never in fact rendered"would "violatethejury- 


 trial guarantee" - the relevant inquiry "is not whether, in a trial that occurred without  


 the error, a guilty verdict would surely have been entered, but whether the guilty verdict  


 actually rendered in this trial was surely unattributable to the error."90                                                                                                                                              If a valid verdict  


                     88                   See   United   States   v.   Booker,   543   U.S.   220,   230   (2005)   ("[The   U.S.]  

 Constitution gives a criminal defendant the right to demand that a jury find him guilty                                                

 of all the elements of the crime with which he is charged." (quoting                                                                                                                                                    United States v.                            

 Gaudin, 515 U.S. 506, 511 (1995)))                                                                             ; cf. Noffke v. Perez                                        , 178 P.3d 1141, 1152 (Alaska                                         

 2008) ("Generally, questions of [civil] negligence are left to the jury to decide.").                                                                                                                                        

                     89                   508 U.S. 275 (1993).  


                     90                  Id. at 280 (emphasis in original).  


                                                                                                                                -26-                                                                                                                        7240

----------------------- Page 27-----------------------

was never entered, "the question whether the                                                    same  [guilty] verdict . . . would have been                                  


rendered absent the constitutional error is utterly meaningless."                                                                            

                             Sullivan'sapproachto harmless error scrutiny mirrors theformulaweapply  


 in Alaska.  In Anderson v. State we rejected a "guilt-based" approach, which "asks the  


 counterfactual  question  whether  the  defendant  would  have  been  convicted  in  a  


hypothetical  trial  absent  the  error."92                                             We  follow  instead  the  "effect-on-the-jury"  


 approach, which "asks the historical question whether the error was a substantial factor  


 in the jury's verdict."93                            Under this formula, as in Sullivan, harmless error review is  


 ineffective for reviewing an omitted element from the instructions because there "is no  


 object, so  to  speak,  upon  which  harmless-error  scrutiny  can  operate"94   - the jury  


reached no verdict on the element omitted from its consideration.  


                             This practical difficulty is highlighted by the harmless error approach the  


 court of appeals was obliged to take in this case. Because there was no way to determine  


whether something the jury did not consider was a "substantial factor" in its verdict, the  


 court of appeals had to examine the evidence presented  and hypothesize a verdict:  


 "Given the great discrepancy between the statutory limit (four ounces) and the amount  


 of usable marijuana harvested from Jordan's plants (slightly more than a pound and a  


               91           Id.  at 280 (emphasis in original).                



                             372  P.3d  263,  265  (Alaska  2016)  (quoting  The  Supreme  Court,  2005  

                                                                  ARV. L. R            EV. 192, 193 (2006)).        

 Term - Leading Cases, 120 H 

               93           Id. (quoting The Supreme Court, 2005 Term - Leading Cases, 120 HARV.  


          EV. 192, 193 (2006));                             see also             Neder  v.  United States                          , 527 U.S. 1, 27 (1999)               

 L. R 

 (Stevens, J., concurring) ("There is . . . a distinction of true importance between a                                                                                               

harmless-error test that focuses on what the jury did decide, rather than on what appellate                                                                           

judges think the jury would have decided if given an opportunity to pass on an issue.").                                                                               

               94            Sullivan, 508 U.S. at 280 (emphasis in original).  


                                                                                        -27-                                                                                 7240

----------------------- Page 28-----------------------

half), we conclude that no reasonable jury could have had a reasonable doubt on this                                                   



                     The court of appeals has previously acknowledged the difficulty in such an  


approach:   "[I]f 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  

                                                                                                        96   Our holding today  


the only practical way to perform the harmless error analysis." 

eliminates the artificiality of this kind of appellate review.  


           D.	        If AMental StateRegarding Weight WasAnEssentialElement Of The  


                      Crime,ThenTheExclusionOfJordan's TestimonyWas Not Harmless  


                      Beyond A Reasonable Doubt.  


                      As noted above, we agree with the court of appeals that it is error to prevent  


the defendant from testifying about a mental state that is an element of the charged  


offense.  We have long recognized that "[n]o defendant requesting to testify should be  


deprived of exercising that right and conveying his version of the facts to the court or  




              We also recognize "that there are myriad reasons why an accused may wish to  


testify in his own behalf" besides the content of his testimony, including a faith in his  


own persuasiveness, a hope that the jury will look favorably on his decision to take the  


 stand, and a simple desire to "tell his side in a public forum," perhaps even directing his  

                                                                                                            98   Thus, "a judge's  


 speech "over the head[s] of judge and jury, to a larger audience." 

 skepticism regarding the truthfulness or credibility of a witness's proposed testimony is  


           95         Jordan  v.  State,  367  P.3d  41,  53  (Alaska  App.  2016).  

           96         Anderson  v.  State,  337  P.3d  534,  540  (Alaska  App.  2014).   

           97         Hughes  v.  State,  513  P.2d   1115,   1119  (Alaska   1973).   

           98         LaVigne   v.   State,   812   P.2d 217,   221   (Alaska   1991)   (quoting   Wright   v.  

Estelle,   572   F.2d   1071,   1078   (5th   Cir.   1978)   (en   banc)   (Godbold,   J.,   dissenting   on  

petition  for  rehearing)).  

                                                                   -28-	                                                            7240

----------------------- Page 29-----------------------

not a valid reason for the judge to exclude that testimony from the trial. . . .                                                              [I]t is the     


jury's role to assess and resolve questions of truthfulness and credibility."                                                                   

                         The  court  of  appeals  concluded  that  although  it  was  error  to  exclude  


Jordan's  testimony,  the  error  was  harmless  beyond  a  reasonable  doubt  because  no  


reasonable jury could have accepted it.100  Harmless error review in cases like this one  


 is required by LaVigne v. State, in which we discussed whether harmless error review  


was appropriate for a violation of the defendant's right to testify or, rather, whether the  


 error "compels the per se reversal of [a] conviction."101   We decided that harmless error  


review was appropriate once the defendant met "an initial burden to show he would have  


 offered relevant testimony had he been allowed to testify at his trial."102  The burden then  


moves to the State "to show that denial of [the defendant's] constitutional right was  



harmless error beyond a reasonable doubt."                                                  


                         Jordan asks us to overrule LaVigne and hold that the erroneous exclusion  


 of a defendant's testimony is structural error.  We find it unnecessary to do that in this  


 case because we conclude that the exclusion of Jordan's testimony was not harmless  


beyond a reasonable doubt.  


                         In LaVigne we emphasized that the burden on the State to prove harmless  


 error beyond a reasonable doubt "is a heavy one."104                                              "This is largely due to the limited  


             99          Jordan, 367 P.3d at 53.                       

             100         LaVigne, 812 P.2d at 220-22.  


             101         Id.  

             102         Id.  at 221.   

             103         Id.  

             104         Id.  

                                                                             -29-                                                                       7240

----------------------- Page 30-----------------------

ability   of   appellate   courts   to   judge   accurately  the   possible   effect   on   the   jury   of   a  


defendant's appearance on the stand."                                                                                                

                                                                 We again stressed the difference between the  


content of the defendant's testimony - which "an appellate court can competently  


weigh" - and "the possible impact upon the jury of factors such as the defendant's  


willingness  to  mount the stand  rather  than  avail himself of the shelter  of the Fifth  


Amendment, his candor and courtesy (or lack of them), his persuasiveness, [and] his  

                                            106   We observed that "[a]ppellate attempts to appraise [the]  


respect for court processes." 

impact upon the jury of such unknown and unknowable matters is purely speculative."107  


For that reason, we concluded in LaVigne  that "there will be relatively few cases in  


which the reviewing court can confidently assert that the denial of the right to testify was  


so insignificant as to constitute harmless error beyond a reasonable doubt."108  


                     We are unable to make that confident assertion in this case. It may well be  


that the content of Jordan's proposed testimony - that he reasonably believed the  


marijuana in his possession, when processed, would weigh less than four ounces when  


it actually weighed more than 25 ounces - was objectively unreasonable.   But the  


reasonableness of Jordan's belief was essentially his entire defense.   Only he could  


testify about what he subjectively believed; if a mental state was an element of the  


offense, his failure to testify about it would leave an obvious gap in his defense.  The  


difference between four ounces and 25 ounces seems great, but it can only seem greater  


when no one testifies that a mistaken estimate is reasonable in the context of determining  


the marijuana's weight:  whether by taking live plants and removing the roots before  


           105       Id.  

           106       Id.  (quoting   Wright, 572 F.2d at 1082 (Godbold, J., dissenting)).               



                     Id. (quoting Wright, 572 F.2d at 1082 (Godbold, J., dissenting)).  

           108       Id. at 221-22.  


                                                                 -30-                                                            7240

----------------------- Page 31-----------------------

weighing them(for the statutory one-sixth method), or by drying the plants and weighing                                                                                                                                                                           

the result (as the police did here).                                                                            Although   Jordan may have had too much faith in his                                                                                                                   

ability to persuade, we cannot say with confidence that the jury would have rejected his                                                                                                                                                                                                

testimony.   We conclude, therefore, that - assuming Jordan's constitutional privacy                                                                                                                                                                                   

rights are implicated by his marijuana possession - the error in excluding his testimony                                                                                                                                                                        

was not harmless beyond a reasonable doubt.                                                                                                              

                      E.	                    Remand    Is    Necessary    For    A    Determination    Whether    Jordan's   

                                             Marijuana Possession Was Protected By The Constitutional Privacy                                                                                                                                                                                       


                                             We reiterate that the foregoing discussion of the trial errors in this case                                                                                                                                                          

assumes that Jordan's possession of marijuana in the                                                                                                                        detached greenhouse falls under the                                                                        

                                                                                                                                                                                                                                                           109  Because  

constitutional privacyprotections wehaveappliedin the context of the home.                                                                                                                                                                                           

the court of appeals concluded that the errors were harmless beyond a reasonable doubt,  


it  could  assume,  for  purposes  of  discussing  Jordan's  case,  that  the  constitutional  


protections "apply to Jordan's possession of marijuana in a detached greenhouse on his  


residential property."110  


                                             But we conclude based on the same assumption that the omission of a  


contested element of an offense from the jury instructions is structural error and that the  


exclusion of Jordan's testimony about that element is not harmless beyond a reasonable  


doubt.   The assumption therefore matters to our disposition of the case.   If Jordan's  


                       109                   See Jordan v. State                                            , 367 P.3d 41, 48 (Alaska App. 2016) (noting that "[i]n                                                                                                               

Jordan's case, the marijuana was found on his residential property, but in a detached                                                                                                                                                                          

greenhouse   -   a   situation   that   is   arguably   not   covered   by"   cases   explaining   that  

constitutional right of privacy protects personal possession of marijuana in the home                                                                                                                                                                                         

(citing  Ravin v. State                                                , 537 P.2d 494 (Alaska 1975);                                                                          Noy v. State                              , 83 P.3d 545 (Alaska                         

App. 2003))).   

                       110	                 Id.  

                                                                                                                                          -31-	                                                                                                                                  7240

----------------------- Page 32-----------------------

marijuana possession was not subject to the constitutional right to privacy, then he was                                                                                                                                                                                                                                                                                                                                                                                                                       

not constitutionally entitled to a jury instruction that included a mental state as to weight,                                                                                                                                                                                                                                                                                                                                                                                            

 and his testimony about his mental state could likely have been excluded on relevancy                                                                                                                                                                                                                                                                                                                                                                                     

 grounds.   Whether constitutional rights are implicated depends on the extent to which                                                                                                                                                                                                                                                                                                                                                                                                          

Jordan had the same reasonable expectation of privacy in the greenhouse that he had in                                                                                                                                                                                                                                                                                                                                                                                                                                     

his home.                                                    Since our decision entitles Jordan to a new trial if in fact the constitutional                                                                                                                                                                                                                                                                                                       

protections apply, we must remand to the superior court for its consideration of this                                                                                                                                                                                                                                                                                                                                                                                                                          


V.                                       CONCLUSION  

                                                                                Because   -   assuming   that   Jordan's   constitutional   privacy   rights   were  

implicated by his marijuana possession - the omission from jury instructions of a                                                                                                                                                                                                                                                                                                                                                                                                                                             

 contested and essential element of the offense was structural error, and the exclusion of                                                                                                                                                                                                                                                                                                                                                                                                                                

the defendant's testimony was not harmless beyond a reasonable doubt, we REVERSE                                                                                                                                                                                                                                                                                                                                                                                    

the court of appeals' decision affirming Jordan's conviction.                                                                                                                                                                                                                                                                                                                              We REMAND to the                                                                                                       

 superior court to consider whether Jordan's constitutional privacyrights wereimplicated                                                                                                                                                                                                                                                                                                                                                                                

by his marijuana possession.                                                                                                                                                  If they were, he is entitled to a new trial.                                                                                                                                                                                

                                                                                                                                                                                                                                                        -32-                                                                                                                                                                                                                                               7240

----------------------- Page 33-----------------------

BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.                                                                 

                            There   is   a   basic   problem   with   this   case   because   the   court   of   appeals  

rendered an opinion that may not apply.                                              That court concluded that, in cases where the                                            

defendant has a constitutional privacy interest, the defendant may not be convicted of                                                                                         

violating the former statute criminalizing possession of four ounces or moreof marijuana                                                                        


unless there is a showing of negligence as to this amount.                                                                                

                                                                                                                               This conclusion may not  


apply to this case because the court of appeals did not decide whether Antonio Jordan  



had a privacy interest in the marijuana he was growing in his detached greenhouse. 


                            This court follows suit with the foregoing opinion on whether the failure  


to instruct on a "contested and essential element" of an offense is a structural error. This  


is a hypothetical question in this case because we do not know whether negligence is an  

"essential element" of this offense.  We do not know whether this mens rea element is  


required because the court's opinion does not decide whether Jordan had a constitutional  


privacy interest in the marijuana he was growing in his detached greenhouse.  


                            The reason this issue has never been decided is that Jordan did not raise it  


in  the superior  court.                          Jordan  did  not  argue that his constitutional right to  privacy  


supported his right to testify that he believed there was a smaller amount of marijuana  


growing in his greenhouse.  His proffered testimony was based on his interpretation of  


the statute. And Jordan did not argue that his right to privacy required the State to prove  


that he should have known that he was over the statutory limit. Instead, Jordan's counsel  


stated that he had no objection to the trial court's instruction on the elements of this  


offense.              Jordan's  argument  that  the  State  should  be  required  to  prove  knowing  

              1            Jordan  v.  State,  367  P.3d  41,  52  (Alaska  App.  2016).  

              2            Id.  at  48.  

                                                                                      -33-                                                                                      7240  

----------------------- Page 34-----------------------

possession was based on his interpretation of the language of the statute.                                                                                                                                                                                                                         So there was                          

nothing about Jordan's arguments to the superior court that would have alerted the judge                                                                                                                                                                                                                                           

that he was raising a constitutional privacy issue.                                                                                                                                                   

                                                      Jordan argues that this default is irrelevant.                                                                                                                                At oral argument, he argued                                                              

that a defendant would have a right to a negligence instruction despite his failure to ask                                                                                                                                                                                                                                                 

 for one, even if the evidence had shown that he had a ton of marijuana in a warehouse.                                                                                                                                                                                                                                                                      

                                                      I disagree with this position.                                                                                    Alaska Criminal Rule 30(a) requires a party                                                                                                             

to make any requests or objections regarding the jury instructions before the jury retires                                                                                                                                                                                                                                      

to deliberate.                                        A party must make an argument that gives the trial judge an "identifiable                                                                                                                                                                        

                                                                                                                                                                              3       Even a timely objection will not preserve  

 opportunity" to rule on the party's position.                                                                                                                                                                                                                                                                         

 a substantially different argument for appeal.4                                                                                                                                                In this case, Jordan did not make any  


 argument apprising the trial court that the elements of the offense should be modified to  


 accommodate his right to privacy.   Therefore, the appellate courts should decline to  


 address Jordan's constitutional arguments.  


                           3                         Reust v. Alaska Petroleum Contractors, Inc                                                                                                                                      ., 127 P.3d 807, 816 (Alaska                                                        

 2005) (quoting                                              Manes v. Coats                                                  , 941 P.2d 120, 125 n.4 (Alaska 1997));                                                                                                                        Heaps v. State                                             ,  

 30 P.3d 109, 113-14 (Alaska App. 2001).                                                                                                    

                           4                          Jones v. Bowie Indus., Inc., 282 P.3d 316, 339 (Alaska 2012); Brown v.  


Ely, 14 P.3d 257, 261-62 (Alaska 2000); Post v. State, 580 P.2d 304, 308 (Alaska 1978);  


Linscott v. State, 157 P.3d 1056, 1059 (Alaska App. 2007).  


                                                                                                                                                                     -34-                                                                                                                                                             7240

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