Mark D. Anderson, Petitioner,
State of Alaska, Respondent
Court Case No. 3PA-07-02136CR. Court of Appeals No. A-10776.
Stowers, Chief Justice, Fabe and Maassen, Justices. Winfree
and Bolger, Justices, not participating.
Petition for Hearing, filed on December 26, 2014 and granted
on March 13, 2015, is DISMISSED as improvidently granted.
Anderson was convicted of ten counts of sexual abuse of a
minor based on evidence involving three different victims. At
trial, each of the victims testified to multiple acts of
abuse over a number of months and in various locations. The
trial court failed to issue a factual unanimity instruction
to the jury, and the defense did not request this instruction
at trial. The jury convicted Anderson on ten
counts and acquitted him on one count, Count I.
challenged his convictions on Counts II, III, and VI-IX based
on the trial court's failure to issue a factual unanimity
instruction. In Anderson I, the court of
appeals agreed that the trial court's failure to issue a
jury instruction regarding factual unanimity was error, but
since Anderson had not objected at trial, the court of
appeals reviewed the mistake for plain error. The court of
appeals determined that the trial court's error was
harmless beyond a reasonable doubt. The court of appeals
affirmed Anderson's convictions for the counts in
petitioned this court for review, and we granted
Anderson's first petition. We remanded his case to
the court of appeals
to allow the parties to provide supplemental briefing on and
decide (a) whether Anderson's attorney's failure to
object to the factual-unanimity instruction was based on a
tactical decision, and (b) whether the trial court's
failure to provide the instruction was harmless beyond a
reasonable doubt under either the Covington II
approach or the Neder  approach.
remand, the court of appeals affirmed Anderson's
convictions and the analysis it used in Anderson
I. Anderson then filed a second
petition challenging the approach the court of appeals used
to determine whether the factual-unanimity error -- a
constitutional error -- was harmless beyond a reasonable
doubt under the prejudice prong of the plain error analysis
set forth in Adams v. State. We granted that
petition and requested additional briefing from both
United States Supreme Court has used both a "
guilt-based" approach and an "
effect-on-the-jury" approach  to determine whether a
federal constitutional error is harmless beyond a reasonable
doubt. The " guilt-based"
approach is an outcome-oriented approach under which a court
reviews the evidence not affected by the error to determine
whether, in a hypothetical trial without the error, the jury
would nonetheless have convicted the defendant. In
contrast the " effect-on-the-jury" approach is a
process-oriented standard under which the court asks if the
error was a substantial factor in the jury's verdict in
the actual trial that took place. In the words of
another commentator, " The effect-on-the-jury approach
asks the historical question whether the error was a
substantial factor in the jury's verdict, whereas the
guilt-based approach asks the counterfactual question whether
the defendant would have been convicted in a hypothetical
trial absent the error."  Under a guilt-based
approach the error itself should not play a role in the
court's analysis, and a reviewing court should simply
weigh the evidence that was not impacted by the
error. Under an effect-on-the-jury
approach, however, a reviewing court must " evaluate the
relationship of the error to the untainted evidence."
Anderson and the State agree that Alaska should -- and does
-- use an effect-on-the-jury approach. In addition to the
statements both parties made in their briefs, Anderson's
counsel explained at oral argument that the parties "
agree that this court has adopted the effect-on-the-jury
approach to evaluating whether an error is harmless. We agree
on the basic principles underlying that approach in
evaluating the harm from factual concurrence errors."
And the State conceded that both sides " seem to agree
on the starting point. The State is not arguing . . . [for
the application of] a guilt-based approach. We are not
suggesting that this court simply look at all the evidence
and decide whether the jury reached the right result . . . .
Instead, Alaska follows the effect-on-the-verdict
agree that the proper standard for deciding whether a
constitutional error is harmless beyond a reasonable doubt
under the prejudice prong of the plain error test set forth
in Adams  is the effect-on-the-jury approach.
We are not persuaded that the court of appeals erred in its
decision on remand. Therefore, we DISMISS Anderson's
Petition for Hearing as improvidently granted.
at the ...