      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,                                )
                                               )        Supreme Court No. S-16217
                      Petitioner,              )        Court of Appeals No. A-11048
                                               )
              v.                               )        Superior Court No. 4TO-09-00151 CR
                                               )
STATE OF ALASKA,                               )        OPINION
                                               )
                      Respondent.              )        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.




                                             -2-                                       7240

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.
                                            -3-                                       7240

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)).
                                                -4-                                   7240

      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.
                                           -5-                                      7240

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 marijuana in 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”).
                                             -6-	                                     7240

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 a claim has been preserved for appeal”13 and whether due process
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 the question 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 violation of defendant’s right against self-incrimination was 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...)
                                             -7-                                         7240

harmless error review and, upon finding error, have simply reversed.18 This case requires
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)).
                                             -8-                                        7240

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.
              The State argues that the possession offense with which 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).
                                            -9-	                                      7240

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 of appeals’ 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.
                                            -10-                                        7240

              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 persons in “rule-laden environments, . . . whose actions 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]
constitutionally permissible because it approximates what the due process 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”).
                                           -11-                                       7240

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).
                                          -12-                                      7240

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. Municipality of 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).
                                            -13-                                       7240

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).
                                          -14-                                      7240

              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)).
                                            -15-                                       7240

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...)
                                           -16-	                                      7240

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.”).
                                            -17-                                       7240

              The United States Supreme Court decided in Neder v. United States that the
erroneous omission of an essential element from jury 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).
                                           -18-                                       7240

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
              See Anderson v. State, 372 P.3d 263, 264-65 (Alaska 2016) (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 from failure 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).
                                           -19-                                      7240

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 (Alaska App. 2000) (quoting United States v. Tagalicud,
85 F.3d 1180, 1184 (9th Cir. 1996)) (alteration in original).
                                           -20-                                       7240

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.”).
                                           -21-	                                     7240

“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).
                                            -22-                                       7240

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)).
                                           -23-                                        7240

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).
                                            -24-	                                     7240

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.”).
                                           -25-                                       7240

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
              Applying harmless error review to the omission of a contested element from
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] a guilty verdict that was never in fact rendered” would “violate the jury­
trial 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).
                                            -26-                                       7240

was never entered, “the question whether the same [guilty] verdict . . . would have been
rendered absent the constitutional error is utterly meaningless.”91
              Sullivan’s approach to harmless error scrutiny mirrors the formula we apply
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).
                                           -27-                                      7240

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 A Mental State Regarding Weight Was An Essential Element Of The
              Crime, Then The Exclusion Of Jordan’s Testimony Was 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)).
                                           -28-	                                      7240

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.
                                           -29-                                       7240

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.
                                           -30-                                       7240

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 privacy protections we have applied in 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.
                                           -31-	                                     7240

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 privacy rights were implicated
by his marijuana possession. If they were, he is entitled to a new trial.




                                            -32-                                        7240

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 more of 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.
                                           -33­                                       7240
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).
                                          -34-                                      7240

