Appeal
from the District Court, Third Judicial District, Anchorage,
Pamela Scott Washington, Judge. Trial Court No. 3AN-13-7939
CR
Renee
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
Thomas
J. Aliberti, Assistant District Attorney, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
ALLARD
Judge.
Brant
Josef Natori Marshall was convicted, following a jury trial,
of second-degree failure to register as a sex
offender.[1] One of the elements of this crime is that
the defendant is, in fact, a convicted sex offender who is
required to register as a sex offender under AS
12.63.010.[2]
At the
beginning of Marshall's trial, Marshall's attorney
offered to stipulate to this fact. The defense attorney
explained that Marshall was not disputing that he was
required to register; instead he was disputing only that he
had knowingly failed to comply with the registration
requirement. The defense attorney further explained that her
reason for proposing this stipulation was to prevent the
prosecution from entering the judgment for Marshall's
underlying sex offense into evidence, thereby preventing the
jury from learning that Marshall had been convicted of sexual
abuse of a minor.
The
prosecutor agreed to the proposed stipulation, and the trial
court subsequently instructed the jury on the stipulation.
The jury was also separately instructed on their obligation
to find all the elements of second-degree failure to register
as a sex offender beyond a reasonable doubt, including the
element that was the subject of the stipulation. Following
deliberations, the jury convicted Marshall of the charged
offense.
On
appeal, Marshall argues that the stipulation effectively
removed an element from the jury's consideration and it
was therefore error for the trial court to instruct the jury
on the stipulation without first obtaining Marshall's
personal waiver of his right to a jury trial on the element
covered by the stipulation. Marshall further argues that the
failure to obtain his personal jury trial waiver was
structural error, entitling Marshall to automatic reversal of
his conviction without any showing of
prejudice.[3]
For the
reasons explained in this opinion, we disagree with Marshall
that the stipulation removed an element of the charged
offense from the jury's consideration, and we find no
error in the trial court's handling of the stipulation.
Marshall
also separately argues that the trial court erred when it
failed to sua sponte instruct the jury that Marshall
could not be convicted of failure to register if his failure
to act was "the result of mistake, inadvertence, or
negligence."[4] We find no merit to this claim, given how
this case was litigated and argued to the jury.
Background
facts and prior proceedings
Marshall
is a convicted sex offender who has been required to register
as a sex offender on an annual basis since June 2000.
Marshall's underlying sex offense was for second-degree
sexual abuse of a minor. Marshall was in compliance with his
registration requirements until June 2013, when he failed to
submit his annual registration. Marshall had filed a change
of address form with the Department of Public Safety the
previous summer, indicating that he was homeless.
Approximately
a month after Marshall failed to file his June 2013 annual
sex offender registration, Marshall was a passenger in a car
that was pulled over for a traffic stop. The officer who was
conducting the stop recognized Marshall's name and was
aware that Marshall was a sex offender who was out of
compliance with his registration requirement. After
confirming that Marshall was out of compliance, the officer
confronted Marshall about his registration status. According
to the officer's later testimony, Marshall responded with
a series of statements indicating that "he didn't
agree with the registration requirements, and so he
purposefully stayed homeless." Marshall was arrested and
charged with second-degree failure to register as a sex
offender, a class A misdemeanor.[5]
Alaska
Statute 11.56.840(a) states, in pertinent part, that a person
commits the crime of second-degree failure to register as a
sex offender if the person "(1) is required to register
under AS 12.63.010; (2) knows that the person is required to
register under AS 12.63.010; and (3) fails to ... file the
annual or quarterly written verification."[6]A person is
required to register as a sex offender under AS 12.63.010 if
they have been convicted of a sex offense as defined in AS
12.63.100(6).[7]
At the
beginning of Marshall's trial, Marshall's attorney
offered to stipulate to the first element - that is, she
offered to stipulate that Marshall was required to register
as a sex offender under AS 12.63.010. The defense attorney
explained that she was offering this stipulation to prevent
the State from introducing Marshall's criminal judgment
for his sex offense - which would have alerted the jury to
the fact that Marshall's underlying sex offense was for
sexual abuse of a minor. According to the defense attorney,
Marshall was not disputing that he was required to register
as a sex offender; instead he was disputing only that he had
knowingly failed to comply with that requirement. Marshall
was present when this discussion took place, and he did not
object to the stipulation or to his attorney's
explanation of why it was being offered.
The
prosecutor agreed to the proposed stipulation, and the trial
court subsequently instructed the jury as follows:
The prosecution and the defense have agreed, or stipulated,
to the following facts:
1. That the Defendant, BRANT JOSEF NATORI MARSHALL, is a sex
offender and has the duties to register as a sex offender as
imposed by AS 12.63.010.
The
trial court also separately instructed the jury on all the
elements of second-degree failure to register, including the
element covered by the stipulation, and on the ...