concurring.
[¶ 31] I agree with the conclusion that the district court did not err when it arrested judgment. For the crime of gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(c), “knowing” the victim was unaware of the sexual act is an element of an offense as defined by our legislature. N.D.C.C. § 12.1 — 01—03(l)(c). Under N.D.R.Crim.P. 7(c), this element must be in the information. Failure to charge an offense is a basis for an arrest of judgment under N.D.R.Crim.P. 34. I write separately to note my belief that this decision should not preclude district courts from analyzing the failure to include an essential element in an information under harmless error. N.D.R.Crim.P. 52(a).
[¶ 32] Under a harmless error analysis, the failure to include the phrase “he knows” in an information may, when the entire record is examined, be harmless. N.D.R.Crim.P. 52(a) provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” In this case, if the district court had applied a harmless error analysis, the failure to include the knowing requirement in the information may very well have been determined not to affect the substantial rights of Frankfurth. The jury instructions included the requirement that Frankfurth must have known the victim was unaware of the sexual act. Based on proper jury instructions that recognized all of the essential elements of the crime, a unanimous jury returned a verdict that Frankfurth was guilty. Furthermore, the statute was referenced in the information and thus Frankfurth had notice of the crime for which he was charged. There is no evidence on the record that Frankfurth relied on the insufficient information to his detriment. To the contrary, it is apparent from the record and the oral argument before this Court that Frankfurth was aware of the error in the information and was not prejudiced by the error.
[¶ 33] The information could have been amended up until the time the verdict was rendered. N.D.R.Crim.P. 7(e). Although he was not required by N.D.R.Crim.P. 12 to raise the issue of a defective information, Frankfurth did not raise it until after the jury found him guilty and the prosecution made no motion to amend the information. Still, Frankfurth wins the right to a retrial of his case because of a prosecuto-rial mistake.
[¶ 34] This is precisely the type of issue N.D.R.Crim.P. 52(a) was meant to address. The harmless error doctrine “recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.” Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
[¶ 35] Our case law recognizes that even “constitutional errors do not automatically require reversal if it is shown they were harmless.” City of Bismarck v. Judkins, 2005 ND 143, ¶ 7, 701 N.W.2d 911. Harmless error analysis is already used for a broad range of issues. See, e.g., Clark v. State, 2001 ND 9, ¶ 16, 621 N.W.2d 576 (imposing an enhanced sentence without having a jury find the predicate facts supporting the enhanced sentence was harmless error); State v. Syvertson, 1999 ND 134, ¶¶ 37-38, 597 *571N.W.2d 652 (violating the right against self-incrimination was subject to harmless error); State v. Sheldon, 301 N.W.2d 604, 613 (N.D.1980) (failing to give proper jury instructions was harmless error). Why should the adequacy of a criminal information be analyzed any differently? “If the harmless error doctrine is to be applied to a constitutional error, then it should be applied fairly and across the board to any constitutional error amenable to a harmless error analysis.” State v. Guzman, 119 Wash.App. 176, 79 P.3d 990, 996 (2003) (Sweeney, J., concurring) (arguing that harmless error analysis should be used for a defective information where proper jury instructions existed).
[¶ 36] There are, of course, certain errors that cannot be considered harmless. But such errors “infect the entire trial process” and “necessarily render [the whole] trial fundamentally unfair.” Neder, 527 U.S. at 8, 119 S.Ct. 1827. In State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635, for example, we said the violation of Sixth Amendment right to effective assistance of counsel “can never be treated as harmless error.” Drafting an insufficient charging document would not be harmless error under N.D.R.Crim.P. 52(a) if the defendant relied on the document to his detriment or was otherwise prejudiced.
[¶ 37] Paragraph 25 of the majority opinion cites to two cases that apparently stand for the proposition that a defective information cannot be “cured” through proper jury instructions. See supra at ¶ 25 (citing United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.1973); State v. Howell, 226 Kan. 511, 601 P.2d 1141,1143-44 (1979)). But neither case, nor any case cited by the majority, precludes the use of harmless error analysis. Comparable errors in the indictment in the federal system are subjected to a Fed.R.Crim.P. 52 analysis. See, e.g., United States v. Cotton, 535 U.S. 625, 629, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (applying a Fed. R.Crim.P. 52 analysis and concluding , an omission in a federal indictment of a fact that enhanced the statutory, maximum sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not require reversal because the evidence was overwhelming); United States v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001) (en banc) (holding the “failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review”).
[¶ 38] As we have stated, the primary purpose of the complaint or information is to inform the accused of the charges against him to enable him to prepare for trial. City of West Fargo v. Hawkins, 2000 ND 168, ¶ 8, 616 N.W.2d 856. There is nothing in this record to suggest that Frankfurth was not adequately informed of the crime charged or that he was not prepared for trial. Because of this, a retrial is an inefficient and ineffective use of judicial resources and provides incentives for defendants to withhold raising a defective information until after a verdict is entered. “Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Neder, 527 U.S. at 18,119 S.Ct. 1827 (citing Roger J. Traynor, The Riddle of Harmless Error 50 (1970)).
[¶ 39] If the district court had subjected the error in the charging document to a N.D.R.Crim.P. 52(a) analysis and found that the error did not affect the substantial rights of the defendant, I am convinced on the record we have that such a decision could be affirmed. However, the district court applied a strict interpretation of *572N.D.R.Crim.P. 34 and it was not error to do so.
[¶ 40] Carol Ronning Kapsner