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

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

ANTONIO JORDAN, 

Petitioner, 

v. 

STATE OF ALASKA, 

Respondent. 

) 

) Supreme Court No. S-16217 

Court of Appeals No. A-11048 

Superior Court No. 4TO-09-00151 CR 

O P I N I O N 

No. 7240 – May 4, 2018 

) 

) 

) 

) 

) 

) 

) 

) 

Petition 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,
 

Judge.
 

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.
 

I. INTRODUCTION 

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 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

error. 

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 

apply. 

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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.1 The police 

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

for live plants (the “one-sixth” method),2 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).3 He 

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. 

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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 

testify, as required by Alaska Criminal Rule 27.1;4 Jordan answered, “Well, . . . given 

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)). 

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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.5 Citing the Alaska 

Constitution’s privacy clause6 and Ravin v. State7 — 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.”8 

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. 

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the jury’s role to assess and resolve questions of truthfulness and credibility.”9 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?[11] 

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, 

2016). 

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”). 

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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”13 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.”14 “Determining the appropriate standard of review is [also] a 

question of law that we review de novo.”15 

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 

involving constitutional violations,17 but in other cases we have declined to apply 

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 violationofdefendant’sright againstself-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 

(continued...) 

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harmlesserror review and, upon finding error,havesimplyreversed.18 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. JUR. 2D 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)). 

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

whether harmlessness is irrelevant under the circumstances.21 

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,22 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.23 But 

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. 

2016). 

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). 

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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 

on people who violate the law unwittingly.”24 Applying this framework, the court of 

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. 

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This “principle of reasonable deterrence” generally allows the government 

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

unreasonable.”29 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”;30 (2) when conduct is “malum in se,” that is, so obviously 

wrong that all reasonable members of society recognize it as such;31 and (3) when 

violations “call for only a modest fine.”32 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.33 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] 

constitutionallypermissiblebecause it approximateswhat thedueprocess 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”). 

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undercut[ting]” this constitutional protection.34 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 

conviction does no great danger to an offender’s reputation.”35 Under the law as it then 

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). 

35 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). 

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exception based on clear legislative intent.37 And “[s]trict liability cannot be applied 

simply to expedite punishment when there is no reasonable expectation of deterrence.”38 

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 

Finally, citing Morgan v. Municipalityof Anchorage, 

41 the State argues that 

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). 

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strict liability with regard to the amount of alcohol in a defendant’s blood;42 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.43 

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

cases.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 

2009)). 

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). 

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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, 

48 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.49 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 

the error was prejudicial.50 Here, Jordan did not explicitly request an instruction 

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. 

49 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)). 

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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 

liability. 

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 

of review.51 The trial court was made aware of the alleged error — that the jury was not 

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) 

(continued...) 

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to instruct the jury also infringed on Jordan’s right to a jury trial.53 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.”). 

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

erroneous omission of an essential element fromjury instructions is not structural error.54 

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

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

rationale. 

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 We 

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.[57] 

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). 

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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.59 

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 

necessity defense.61 Reasoning that “[t]he implausibility of a defendant’s story, or any 

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). 

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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.63 

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 

finding the defendant guilty of that element.’ ”66 But, in a later case involving an omitted 

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 (AlaskaApp. 2000) (quoting United States v. Tagalicud, 

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

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

harmless.67 

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 

harassment). 

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.”). 

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“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.”71 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 review72 — the Court in Neder rejected “the argument that the 

omission of an element will always render a trial unfair.”73 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.’ ”74 

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

defective “reasonable doubt” instruction amounted to structural error.75 Unlike the error 

in Sullivan, which “vitiate[d] all the jury’s findings,” the omission of a single element 

affected only a single finding.76 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 

281). 

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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)). 

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to prove one, no less than failure to prove all, utterly prevents conviction.”81 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 

2001)). 

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

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we agree with Justice Scalia that such a result seriously undermines the jury-trial right.85 

Other states have rejected Neder for the same reason.86 

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 

purpose.”). 

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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 

decide.88 

Applyingharmless error reviewto theomission ofacontestedelementfrom 

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

in Sullivan v. Louisiana. 

89 The Supreme Court concluded that — because 

“hypothesiz[ing]aguilty verdict that was never in fact rendered”would “violatethejurytrial 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). 

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

rendered absent the constitutional error is utterly meaningless.”91 

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). 

92 372 P.3d 263, 265 (Alaska 2016) (quoting The Supreme Court, 2005 

Term — Leading Cases, 120 HARV. L. REV. 192, 193 (2006)). 

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

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

(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). 

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

question.”95 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 

the only practical way to perform the harmless error analysis.”96 Our holding today 

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 

jury.”97 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 

speech “over the head[s] of judge and jury, to a larger audience.”98 Thus, “a judge’s 

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)). 

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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.”99 

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.”103 

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. 

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

defendant’s appearance on the stand.”105 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 

respect for court processes.”106 We observed that “[a]ppellate attempts to appraise [the] 

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)). 

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

108 Id. at 221-22. 

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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 

Right. 

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 

constitutional privacyprotections wehaveappliedin the context of the home.109 Because 

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. 

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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 

issue. 

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. 

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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.1 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.2 

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. 

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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 

opportunity” to rule on the party’s position.3 Even a timely objection will not preserve 

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). 

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