420 P.3d 1143
Alaska2018Background
- Police found 15 marijuana plants in a detached greenhouse on Antonio Jordan’s residential property; after drying the plants yielded over a pound of usable marijuana. Possessing four or more ounces was a class C felony under the statute in effect at the time.
- Troopers did not /could not use the statutory “one-sixth” method for live plants on site and instead stripped, dried, and weighed the plants; Jordan moved to dismiss arguing the weighing method was not legally sanctioned; the motion was denied.
- At trial the court granted a protective order barring the defense from referencing the statutory one‑sixth weighing method; defense counsel said Jordan would testify he reasonably believed he possessed under four ounces and would not testify if barred; the court precluded that testimony and Jordan did not testify.
- The jury instructions required the State to prove Jordan “knowingly possessed” marijuana and that the aggregate weight was four ounces or more, but the instructions did not require a mental state as to the weight element.
- The Court of Appeals held the trial court erred by (1) excluding Jordan’s testimony about his belief as to weight and (2) failing to instruct the jury that the State must prove a culpable mental state as to amount; it nevertheless found both errors harmless and affirmed.
- The Alaska Supreme Court granted review, assumed (for purposes of deciding the trial errors) that constitutional privacy protections for home marijuana possession might apply to the greenhouse, and addressed whether the errors were structural or subject to harmless-error review.
Issues
| Issue | Jordan's Argument | State's Argument | Held |
|---|---|---|---|
| Whether omission of a mental‑state element (regarding weight) from jury instructions is structural error | Omission deprived Jordan of jury determination on an essential contested element; when privacy interest is implicated, State must prove at least negligence as to amount | Statute imposes strict liability as to amount; legislature did not require mens rea for weight, so omission was not constitutional error | Assuming privacy right applies, omitting a contested essential element from instructions is structural error and requires automatic reversal |
| Whether excluding Jordan’s testimony about his subjective belief as to weight was structural error or harmless error | Exclusion denied Jordan his right to testify and present a defense; should be structural or at least not harmless here because his testimony was central | Trial court reasonably excluded implausible testimony; even if error, it was harmless because evidence overwhelmingly showed amount far exceeded four ounces | Court did not decide whether exclusion was structural but held (assuming privacy protection) the exclusion was not harmless beyond a reasonable doubt; defendant’s testimony was central and its absence left a substantial gap in the defense |
| Whether due process requires a mens rea as to weight when possession implicates constitutional privacy (marijuana in the home) | Because Ravin protects personal possession in the home, imposing felony penalties without at least negligence as to weight would undercut privacy right; statute cannot impose strict liability where reasonable belief could make possession lawful | Analogous public‑welfare and DUI contexts permit strict liability as to amount; legislature intended no mens rea requirement | Court agreed with Court of Appeals: where Ravin privacy interest applies, due process requires proof of at least negligence as to weight; possession of marijuana in the protected context is not malum in se nor a rule‑laden public‑welfare offense justifying strict liability |
| Whether remand is required to determine if privacy protection applies to marijuana in a detached greenhouse | Jordan: constitutional protection should extend to greenhouse possession on residential property | State: privacy protection may be limited to inside the home and not extend to detached structures | Court remanded to superior court to decide in the first instance whether Jordan’s greenhouse possession implicated the Ravin privacy protection; if so, Jordan is entitled to a new trial |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless‑error standard for constitutional errors)
- Neder v. United States, 527 U.S. 1 (U.S. 1999) (federal rule that omission of an element from jury instructions is subject to harmless‑error review)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (defective reasonable‑doubt instruction is structural error)
- Ravin v. State, 537 P.2d 494 (Alaska 1975) (Alaska constitutional privacy protection for possession of small amounts of marijuana in the home)
- LaVigne v. State, 812 P.2d 217 (Alaska 1991) (framework applying harmless‑error review to erroneous exclusion of defendant’s testimony)
- State v. Hazelwood, 946 P.2d 875 (Alaska 1997) (analysis of objective‑fault crimes, when mens rea is required for due process)
- Jordan v. State, 367 P.3d 41 (Alaska App. 2016) (Court of Appeals decision agreeing that jury must be instructed on mens rea as to amount and that exclusion of defendant’s testimony was error but holding errors harmless)
- Anderson v. State, 372 P.3d 263 (Alaska 2016) (describing Alaska’s effect‑on‑the‑jury approach to harmless‑error review)