plain error in Alaska

2025“A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014) (citing Adams v. State, 261 P.3d 758, 770 (Alaska 2011); State, Dep’t. of Rev., Child Support Enf’t Div. v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997)). -8- 2119

2025“Plain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.” Id.

2023“Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Id. (quoting Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)). 28 AS 23.10.050. 29 AS 23.10.055(a)(9)(A); see Buntin v. Schlumberger Tech.

2010Plain error requires an obvious mistake, Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981), and for the reasons discussed in the text in the paragraphs that follow, it is anything but obvious that the board was precluded from making its adjudicative ruling by the APA.

2012(See Potts, 712 P.2d at 394 n. 11, noting that "[a] finding of plain error is ... virtually the equivalent of a finding of ineffective assistance of counsel"-because, to qualify as "plain error", the error must be "so obvious and so prejudicial that ... competent trial counsel should recognize it and seek its correction ... by a timely objection.") We will nevertheless address the final element of the plain error test-the question of prejudice-because we are also convinced that the omission of a factual unanimity instruction was harmless in Anderson's case. (b) The applicable test for harmless

2000See Potts v. State, 712 P.2d 385, 390 (Alaska App 1985) (“A plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice.”); see also Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996) (plain error is "[an] impropriety ... so flagrant as to undermine the fundamental fairness of the trial.”) (quotation omitted). 7 .

2025“A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014) (citing Adams v. State, 261 P.3d 758, 770 (Alaska 2011); State, Dep’t. of Rev., Child Support Enf’t Div. v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997)). -8- 2119

2024STANDARDS OF REVIEW Because the Tribe asks this court only to interpret statutes and the Alaska Constitution, de novo review applies.13 We adopt the rule of law that is most persuasive in light of precedent, reason, and policy.14 Questions of standing and mootness “are questions of law involving matters of judicial policy,” so we use our independent judgment when answering them.15 We review issues raised for the first time on appeal for plain error.16 Plain error exists if an “obvious mistake”17 is “so prejudicial that failure to correct it will perpetuate a manifest injustice.”18 12 See AS 47

2023When a party fails to raise an issue before the superior court, we review the issue for plain error. 8 “Plain error exists ‘where an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ”9 The superior court neither committed an obvious mistake nor caused 7 Davison v. State, 282 P.3d 1262, 1267 (Alaska 2012). 8 Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016). 9 Duffus v. Duffus, 72 P.3d 313, 319 (Alaska 2003) (quoting D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)). -5- 1991 injustice when it did not on its own order daily phone calls or approve Roland’s hy

2023We VACATE the child support award and REMAND for recalculation. 15 Fernandes v. Portwine, 56 P.3d 1 , 9 n.27 (Alaska 2002) (“[W]aiver will not be found where an issue raises plain error.”); Duffus v. Duffus, 72 P.3d 313, 319 (Alaska 2003) (“Plain error exists ‘where an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ” (quoting D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)); Alaska R.

2002See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993): Plain error will be found only when an erroneous [jury] instruction creates ‘a high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice.’ Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974).... [T]he ultimate determination in analyzing plain error in jury instructions is simply whether a correct instruction would have likely altered the result.

2000See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993): "Plain error will be found only when an erroneous instruction creates 'a high likelihood that the jury followed an erroneous theoryf,] resulting in a miscarriage of justice.’ Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974).

2002See Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127 , 1131 n. 7 (Alaska 1994) ("Plain error exists when a jury instruction obviously creates a high likelihood that the jury [followed] an erroneous theory resulting in a miscarriage of justice.”) (quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983)). 9 .

1992Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). 9 Plain error will be found when an obvious mistake exists such that the jury instruction creates “a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice.” Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983).

1991See, e.g., Potts v. State, 712 P.2d 385, 390 (Alaska App.1985); Carman v. State, 658 P.2d 131, 137 (Alaska App.1983).

1991See, e.g., Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985); Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983).

2007"Plain error will be found when an obvious mistake exists such that the jury instruction creates a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice." Id. (quotations omitted).

2007"Plain error will be found when an obvious mistake exists such that the jury instruction creates a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice." Id. (quotations omitted).

2025Because he did not raise these arguments in his objections to the master’s findings, we review them for 2 AS 47.30.735(c). 3 In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019) (quoting In re Hospitalization of Jacob S., 384 P.3d 758, 763-64 (Alaska 2016)). 4 Id. 5 Id. -6- 2084 plain error.6 “A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” 7 B.

2024STANDARDS OF REVIEW Because the Tribe asks this court only to interpret statutes and the Alaska Constitution, de novo review applies.13 We adopt the rule of law that is most persuasive in light of precedent, reason, and policy.14 Questions of standing and mootness “are questions of law involving matters of judicial policy,” so we use our independent judgment when answering them.15 We review issues raised for the first time on appeal for plain error.16 Plain error exists if an “obvious mistake”17 is “so prejudicial that failure to correct it will perpetuate a manifest injustice.”18 12 See AS 47

2015Partridge v. Partridge, 239 P.3d 680, 685 (Alaska 2010) ("We will not consider arguments that parties fail to raise in the lower court, let alone arguments they have conceded below, unless the trial court committed plain error." (quoting Ty-bus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999)) (internal quotation marks omitted)). 22 .

2012See Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (citing Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)) (“We will not consider arguments that parties fail to raise in the lower court, let alone arguments they have conceded below, unless the trial court committed plain error.”). -3- 1433 ex parte protective order and therefore constituted a crime involving domestic violence.

2025Kai objected to the master’s findings and recommendations following the hearing, but only as “to the factual findings and legal conclusions that the State proved he is gravely disabled.” Because he did not object to the master’s finding that API was 26 In re Hospitalization of Jeffrey E., 281 P.3d 84, 88 (Alaska 2012). 27 In re Hospitalization of Naomi B., 435 P.3d 918, 923 (Alaska 2019). 28 Id. at 923-24 . -7- 2085 the least restrictive alternative capable of meeting Kai’s treatment needs, we review his claim for plain error.29 Plain error is an obvious error that is clearly prejudicial.30 Pr

2025Kai objected to the master’s findings and recommendations following the hearing, but only as “to the factual findings and legal conclusions that the State proved he is gravely disabled.” Because he did not object to the master’s finding that API was 26 In re Hospitalization of Jeffrey E., 281 P.3d 84, 88 (Alaska 2012). 27 In re Hospitalization of Naomi B., 435 P.3d 918, 923 (Alaska 2019). 28 Id. at 923-24 . -7- 2085 the least restrictive alternative capable of meeting Kai’s treatment needs, we review his claim for plain error.29 Plain error is an obvious error that is clearly prejudicial.30 Pr

2014See, eg., Dorman v. State, 622 P.2d 448, 459 (Alaska 1981) ("'The plain error doctrine is specifically intended 'to mitigate ... the harsh effects of a rigid application of the adversary method of trial.. ..'" (first omission in original) (quoting Bargas v. State, 489 P.2d 130, 133 (Alaska 1971) and 8A J.

1989In short, the plain error rule is designed “to mitigate ... the harsh effects of a rigid application of the adversary method of trial_” Bargas v. State, 489 P.2d at 133 .

2011Evron v. Gilo, 777 P.2d 182, 186 (Alaska 1989) (citing In re L.A.M., 727 P.2d 1057 , 1059 *1030 (Alaska 1986)) (arguments not raised before trial court generally considered waived on appeal, but "[tlhat rule is limited by the doctrine of plain error which allows consideration of points not raised at the trial level if the judicial action was obviously erroneous ...."); see also Yost v. State, Div. of Corps., Bus. and Prof'l Licensing, 234 P.3d 1264 , 1275 n. 40 (Alaska 2010). 13 .

1992We find that because the superior court never considered whether admitting Dr. Pervier’s testimony was grounds for a new trial, and because this case neither was tried to the court, Isaacs v. Hickey, 391 P.2d 449, 452 (Alaska 1964), nor warrants our use of the plain error rule, Matter of L.A.M., 727 P.2d 1057, 1059 (Alaska 1986), Richey’s argument here is waived for purposes of this appeal.

2025“Plain error exists where ‘an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ”8 7 Espeland v. OneWest Bank, FSB, 323 P.3d 2, 12 (Alaska 2014). 8 Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)). -5- 2118 We see no obvious mistake.

2020“Plain error exists [if] ‘an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ” Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)). 4 Urban, 314 P.3d at 516 (quoting S.L., 883 P.2d at 985 ). 5 Berry v. Berry, 277 P.3d 771, 779 (Alaska 2012) (“[F]ees awards in divorce cases are typically based on the parties’ relative economic situations and earning powers, rather than prevailing party status.

2025“Plain error exists where ‘an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ”8 7 Espeland v. OneWest Bank, FSB, 323 P.3d 2, 12 (Alaska 2014). 8 Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)). -5- 2118 We see no obvious mistake.

2020“Plain error exists [if] ‘an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ” Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)). 4 Urban, 314 P.3d at 516 (quoting S.L., 883 P.2d at 985 ). 5 Berry v. Berry, 277 P.3d 771, 779 (Alaska 2012) (“[F]ees awards in divorce cases are typically based on the parties’ relative economic situations and earning powers, rather than prevailing party status.

2025Because he did not raise these arguments in his objections to the master’s findings, we review them for 2 AS 47.30.735(c). 3 In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019) (quoting In re Hospitalization of Jacob S., 384 P.3d 758, 763-64 (Alaska 2016)). 4 Id. 5 Id. -6- 2084 plain error.6 “A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” 7 B.

2025Because he did not raise these arguments in his objections to the master’s findings, we review them for 2 AS 47.30.735(c). 3 In re Hospitalization of Connor J., 440 P.3d 159, 163 (Alaska 2019) (quoting In re Hospitalization of Jacob S., 384 P.3d 758, 763-64 (Alaska 2016)). 4 Id. 5 Id. -6- 2084 plain error.6 “A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” 7 B.

2023When a party fails to raise an issue before the superior court, we review the issue for plain error. 8 “Plain error exists ‘where an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ”9 The superior court neither committed an obvious mistake nor caused 7 Davison v. State, 282 P.3d 1262, 1267 (Alaska 2012). 8 Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016). 9 Duffus v. Duffus, 72 P.3d 313, 319 (Alaska 2003) (quoting D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001)). -5- 1991 injustice when it did not on its own order daily phone calls or approve Roland’s hy

2018See Sengupta v. Univ. of Alaska, 139 P.3d 572, 580-81 (Alaska 2006); Torres v. State, 519 P.2d 788 , 794 n.17 (Alaska 1974). 18 See Small v. Sayre, 384 P.3d 785, 788 (Alaska 2016) (“[W]e review issues that were not raised before the trial court for plain error.”).

2022Plain error exists ‘where an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ” (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000))). -12- 1882 B.

2022CONCLUSION We AFFIRM the judgment of the superior court. 28 See D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) (“Plain error exists ‘where an obvious mistake has been made which creates a high likelihood that injustice has resulted.’ ” (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000))). -19- 1882

2017Holdings, Inc., 323 P.3d 1131 , 1139 n.22 (Alaska 2014) (“To rise to the level of plain error, the error . . . cannot be the result of an intelligent waiver or a strategic decision not to object.” (citing Khan v. State, 278 P.3d 893, 900 (Alaska 2012))). 18 The siblings also argue that any error in omitting the Washington property from the estate was invited by Charles.

2014Khan v. State, 278 P.3d 893, 900 (Alaska 2012) (citing Adams, 261 P.3d at 771 ). -15- 6910 the evidence during trial.

2014Instead, this Court held that the "harmless beyond a reasonable doubt" standard applied only to cases "where errors of constitutional dimension are preserved for appeal by timely objection." 11 We declared that in all other cases (4e., cases where the claim of constitutional error was not preserved in the trial court) the "prejudice" prong of the plain error doctrine "demand[ed] the application of a standard [less favorable to the defendant] than the harmless beyond a reasonable doubt test". 12 And we identified this less favorable standard as the "appreciably affected the verdict" test-the te

1985We concluded, therefore, that the Love standard should apply to constitutional errors considered under a plain error analysis, citing Love v. State, 457 P.2d 622, 630-32 (Alaska 1969), i.e. an error is harmless where it can be fairly said that the alleged error did not appreciably affect the jury’s verdict.

1997City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977).

1996“Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted.” Id. (citing City of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977)).

1983Plain error has also been described as “error which is both obvious and substantial.” Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969).

1978Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). 9 Since defendant’s counsel did not question the affidavit at trial or pre-trial motions, the contours of the plain error rule shape our inquiry into whether admission of the heroin-tinged napkin requires reversal. 10 In Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969), we referred to the plain error doctrine as a device “to prevent a miscar *280 riage of justice” 11 and noted the following purposes underpinning the requirement that points of appeal be preserved at trial: The main purpose of the rule is to require error

1975See Bakken v. State, 489 P.2d 120, 127 (Alaska 1971), Erwin, J., dissenting, for a discussion of the doctrine of plain error. 15 .

1973Cf. Bakken v. State, 489 P.2d 120, 127-129 (Alaska 1971, dissenting opinion of Justice Erwin). 3 .Bee 3 Wright, Federal Practice and Procedure § 856, at 373 (1969), commenting on Rule 52(b) of the Federal Rules of Criminal Procedure (identical to Alaska R.Crim.Pro. 47(b)) : The power to notice a plain error, whether at the request of counsel or on the court’s own motion, is one that the courts exercise cautiously and only in exceptional circumstances. [Footnotes omitted.]

2024The court found that Dominic had a mental illness in part because he was “diagnosed with . . . likely Antisocial Personality Disorder.” Trial testimony supported this finding: Dominic’s provider, who was familiar with his medical history, testified that Dominic “definitely” exhibited antisocial personality traits, which were a cause of his “abrupt periods of anger” and could contribute to an “inability to relate to others’ emotions and a lack of remorse for engaging in dangerous violent behaviors.” It was not a plain error to admit the provider’s expert testimony about these traits24 or to 22

2024V., 501 P.3d 228, 235 (Alaska 2021) (“A plain error involves an ‘obvious mistake’ that is ‘obviously prejudicial.’ ” (quoting In re Hospitalization of Gabriel C., 324 P.3d 835, 838 (Alaska 2014))). 12 See Alvarez-Perdomo v. State, 454 P.3d 998, 1003 (Alaska 2019) (holding “structural errors require automatic reversal and a new trial,” regardless of whether error may have been harmless beyond reasonable doubt); Johnson v. State, 328 P.3d 77 , 84- 85 (Alaska 2014) (holding certain “claims of fundamental error . . . may be raised for the first time on appeal and will be reviewed on the merits in

2021Servs., Office of Children’s Servs., 244 P.3d 1099, 1118-19 (Alaska 2010); Marcia V., 201 P.3d at 504-05 ). 34 Marcia V., 201 P.3d at 505 . 35 Id. 36 Id. 37 Id. 38 Id. (“The ‘high likelihood of injustice’ required to reverse under the plain error standard of review is not present here.”). -19- 7503 Morrison’s known qualifications match or exceed the qualifications of the Marcia V. witness.

2021Servs., Office of Children’s Servs., 244 P.3d 1099, 1118-19 (Alaska 2010); Marcia V., 201 P.3d at 504-05 ). 34 Marcia V., 201 P.3d at 505 . 35 Id. 36 Id. 37 Id. 38 Id. (“The ‘high likelihood of injustice’ required to reverse under the plain error standard of review is not present here.”). -19- 7503 Morrison’s known qualifications match or exceed the qualifications of the Marcia V. witness.

1989See Marrone, 653 P.2d at 675-76 .

1983Carman v. State, 658 P.2d 131, 137 (Alaska App.1983); Marrone v. State, 653 P.2d 672, 676 (Alaska App.1982).