MARK D. ANDERSON, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Trial Court No. 3PA-07-2136 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Mark D. Anderson was convicted of ten counts of second-degree sexual abuse of a minor, based on evidence that he engaged in multiple instances of sexual contact with three different girls, each under the age of eleven. Anderson appealed his convictions on various grounds, but this Court affirmed his convictions in Anderson v. State, 289 P.3d 1 (Alaska App. 2012).
The Alaska Supreme Court has now directed us to reconsider certain aspects of our decision. The matters to be resolved all arise from the fact that the indictment against Anderson contained many counts that did not allege a specific date for the charged offense, but rather a range of dates.
As is often true in prosecutions for sexual abuse of a minor, the three girls in this case testified that Anderson engaged in sexual contact with them on numerous occasions but, for the most part, the girls were unable to identify the dates of the individual acts of sexual contact. Given the girls' testimony, Anderson argued that six of the counts in his indictment contained ranges of dates that were broad enough to potentially encompass two or more alleged acts of sexual contact -- thus giving rise to the possibility that the jurors never reached unanimous agreement as to the criminal incident that formed the basis for their guilty verdicts on those six counts.
In cases like this, Alaska law requires that the jurors unanimously agree on the particular episode of criminal conduct that forms the basis for a guilty verdict. This would not have been a problem if Anderson's jurors had been instructed on this requirement of factual unanimity -- but they were not.
Anderson's trial judge neglected to instruct the jurors that, with respect to each count, they could not convict Anderson unless they unanimously agreed on the particular conduct underlying that count. Anderson's attorney did not request such a unanimity instruction, nor did he object to the judge's failure to give such an instruction. But on appeal, Anderson argued that his trial judge committed plain error by failing to give the jurors a factual unanimity instruction.
This Court agreed with Anderson that the judge's failure to give a factual unanimity
instruction was obvious error, but we concluded that this error did not rise to the level of " plain error" for two reasons.
First, we concluded that Anderson's attorney had potential tactical reasons for failing to raise this issue.
Second (and alternatively), we concluded that the lack of a factual unanimity instruction was harmless beyond a reasonable doubt -- that there was no reasonable possibility that the jury's verdicts would have been different if the jurors had been properly instructed on the requirement of factual unanimity -- because Anderson's defense at trial was a blanket denial of wrongdoing, coupled with the assertion that all of the girls' allegations were knowingly false, either because of ill will or as the result of adult pressure.
The supreme court has directed us to reconsider both aspects of our ruling. To aid our reconsideration of these issues, we solicited supplemental briefs from the parties.
Identifying the proper test for assessing whether the jury instruction error was harmless
Although Covington v. State  was the seminal case that established the requirement of factual unanimity in sexual abuse cases in Alaska, this Court ultimately applied the wrong test when we assessed whether the lack of a factual unanimity jury instruction was reversible error in Covington's case.
Initially, this Court reversed Covington's sexual abuse convictions because the jury was not told of the need for factual unanimity. However, the State sought rehearing, arguing that (1) Covington did not raise the jury unanimity issue in the trial court, so Covington was required to show plain error; and (2) the jury instruction was not plainly erroneous under the facts of Covington's case.
On rehearing, this Court reinstated Covington's convictions because we agreed with the State that Covington had failed to show that the jury instruction error prejudiced the fairness of his trial. We relied primarily on the fact that Covington had not presented individual challenges to specific acts of sexual misconduct, but rather had presented a blanket defense that none of the alleged sexual abuse happened. State v. Covington (Covington II), 711 P.2d 1183, 1184-85 (Alaska App. 1985).
However, our decision in Covington II was premised on a particular view of the doctrine of plain error -- a view that we adopted in an earlier case, Van Hatten v. State, 666 P.2d 1047 (Alaska App. 1983).
In Van Hatten, this Court held that when a defendant presents a claim of constitutional error for the first time on appeal ( i.e., when the issue is raised as a claim of plain error), an appellate court should not apply the " harmless beyond a reasonable doubt" test to determine whether the constitutional error requires reversal. Instead, this Court held that the " harmless beyond a reasonable doubt" standard applied only to cases " where errors of constitutional dimension are preserved for appeal by timely objection." 
We declared that in all other cases ( i.e., cases where the claim of constitutional error was not preserved in the trial court) the " prejudice" prong of the plain error doctrine " demand[ed] the application of a standard [less favorable to the defendant] than the harmless beyond a reasonable doubt test" . And we identified this less favorable standard as the " appreciably affected the verdict" test -- the test that the Alaska Supreme Court adopted in Love v. State, 457 P.2d 622, 630-32 (Alaska 1969), for evaluating the effect of non-constitutional errors.
In Covington II, we expressly relied on Van Hatten as the governing law on the question of how to evaluate the impact of the jury instruction error ( i.e., the lack of a factual unanimity instruction), given the fact that Covington failed to object to this error in the trial court. Thus, in Covington II, when we assessed whether the lack of a factual unanimity instruction prejudiced the fairness of Covington's trial, we did not apply the " harmless beyond a reasonable doubt" test. Instead, we applied the " appreciably affected the verdict" test -- and, under this test, we concluded that the error was harmless.
But in Adams v. State, 261 P.3d 758, 773 (Alaska 2011), and again in Khan v. State, 278 P.3d 893, 901 (Alaska 2012), the Alaska Supreme Court held that even when a claim of constitutional error is raised for the first time on appeal ( i.e., when it is raised as a claim of plain error), the " harmless beyond a reasonable doubt" test continues to govern the question of whether the error (if proved) requires reversal of the defendant's conviction. Indeed, the Adams decision expressly disapproved our contrary holding in Van Hatten . Adams, 261 P.3d at 772-73.
Therefore, in resolving Anderson's case, we must apply the " harmless beyond a reasonable doubt" test set forth in Adams and Khan, rather than the " appreciably affected the verdict" test that we applied in Covington II. We are required to reverse Anderson's convictions on the six counts that he challenges for potential lack of jury unanimity -- Counts II and III, and Counts VI through IX -- unless the State demonstrates that the jury instruction error was harmless beyond a reasonable doubt.
What does " harmless beyond a reasonable doubt" mean in situations where the jury instructions omit or materially misdescribe an essential component of the decision the jury must make?
The jury instructions in Anderson's case informed the jurors that they were required to reach unanimous agreement as to Anderson's guilt or innocence on each count of the indictment. But the jury instructions omitted an important component of what " unanimous agreement" entailed: the instructions failed to specify that, with respect to each count, the jurors could not return a guilty verdict unless they unanimously agreed on a particular incident of sexual contact.
Although this is an error of constitutional dimension, Anderson and the State agree that the error does not require automatic reversal. Instead, to determine whether this error requires reversal of Anderson's convictions on the six affected counts, we must assess whether the error is harmless beyond a reasonable doubt.
When the Alaska Supreme Court remanded Anderson's case to us for reconsideration, the supreme court directed us to determine " whether the trial court's failure to provide [a factual unanimity] instruction was harmless beyond a reasonable doubt under either the Covington II approach or the ... approach [adopted by the United States Supreme Court in Neder v. United States ]" .
We will discuss the Neder decision in a moment. But the decision in Covington II is irrelevant to this inquiry.
This Court's decision in Covington II offers no guidance on the question of when an error can be deemed harmless beyond a reasonable doubt -- because, as we explained in the preceding section of this opinion, this Court did not employ the " harmless beyond a reasonable doubt" test in Covington II. Instead, we employed the " appreciably affected the verdict" test -- the same test that applies to non-constitutional errors -- because Covington failed to raise the jury instruction issue in the trial court.
It is now clear, after the supreme court's decisions in Adams and Khan, that the approach
taken in Covington II was wrong -- that even when a claim of constitutional error is raised for the first time on appeal, Alaska law requires an appellate court to apply the " harmless beyond a reasonable doubt" ...