Marshall v. State, 121418 AKCA, A-12131

Docket Nº:A-12131
Opinion Judge:ALLARD Judge.
Party Name:BRANT JOSEF NATORI MARSHALL, Appellant, v. STATE OF ALASKA, Appellee.
Attorney: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.
Judge Panel:Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.
Case Date:December 14, 2018
Court:Court of Appeals of Alaska
 
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BRANT JOSEF NATORI MARSHALL, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12131

Court of Appeals of Alaska

December 14, 2018

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...

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