(dissenting). I agree with the signers of the lead opinion and the Chief Justice that the trial court erred in failing to instruct the jury that to consider the defendant, Derrick Terrance Vaughn, guilty of forcible-confinement kidnapping, it had to find beyond a reasonable doubt that Vaughn moved the victim and that that movement was not merely incidental to the commission of the underlying esc charge.
The failure to instruct on an essential element cannot be deemed harmless on the basis that a properly instructed jury surely would have found the uninstructed element. Even if such an instructional error could be considered harmless under some circumstances, the omission of the asportation instruction in this case was not harmless.
i
Vaughn claims that the trial court’s failure to instruct the jury on all the essential elements of kidnapping permitted the jury to convict him without finding every essential element and thereby relieved the prosecution of its constitutionally *260mandated burden of proving the essential elements beyond a reasonable doubt.1
Assuming the rule set forth in People v Woods, 416 Mich 581; 331 NW2d 707 (1982), and in MCL 769.26; MSA 28.1096—that a court may not reverse on the basis of an instructional error absent a finding of prejudice—controls where the trial court failed to instruct on an essential element,2 we are not free to follow that rule if it provides less protection of a defendant’s due process rights *261than is required under the Fourteenth Amendment.3
ii
The issue whether a trial court’s failure to instruct on all the essential elements of a crime can be considered harmless error was considered in Rose v Clark, 478 US 570; 106 S Ct 3101; 92 L Ed 2d 460 (1986), Pope v Illinois, 481 US 497; 107 S Ct 1918; 95 L Ed 2d 439 (1987), and Carella v California, 491 US 263; 109 S Ct 2419; 105 L Ed 2d 218 (1989).
In Rose, the trial court erroneously instructed the jury that a killing is presumed to have been done maliciously. The United States Supreme Court held that this instructional error was subject to harmless-error review. The Court emphasized that the presumption did not prevent the jury from considering every element of the crime because "the jury . . . was clearly instructed that it had to find respondent guilty beyond a reasonable doubt as to every element of both first- and second-degree murder,” id. at 579. The Court added that the erroneous instruction was not the equivalent of a directed verdict for the state because "[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Id. at 580.
In Pope, the trial court instructed the jury that the literary, artistic, political, or scientific value of allegedly obscene material should be determined by reference to how that material would be viewed *262by ordinary adults in the entire State of Illinois. The United States Supreme Court held that the value of a work should be determined under a "reasonable person” standard that is not specific to any city or state, and therefore found the instruction to be erroneous.
The Court rejected the defendants’ claims that they were automatically entitled to a new trial because the jury had not found them guilty of an essential element of the crime of selling obscene materials, namely, that the materials lacked serious literary, artistic, political, or scientific value. The Court compared this case to Rose, and said:
[I]n the present cases the jurors were not precluded from considering the question of value: they were informed that to convict they must find, among other things, that the magazines petitioners sold were utterly without redeeming social value. While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand. [Id. at 503.]
Carella concerned a California jury instruction that told jurors that a person who has leased or rented a vehicle and wilfully failed to return it within five days after it is due to be returned shall be presumed to have embezzled the vehicle. The Court first held that the instruction was unconstitutional because it "subverted] the presumption of innocence accorded to accused persons and also invade[d] the truth-finding task assigned solely to juries in criminal cases.” Id. at 265. The Court held that the instructional error was subject to harmless-error analysis even though it "foreclosed independent jury consideration of whether the *263facts proved established certain elements of the offenses with which Carella was charged.” Id. at 266. The Court remanded for a determination of "whether no rational jury could find the predicate acts but fail to find the fact presumed.” Id. at 267.
Justice Scalia filed a concurring opinion in which he suggested how harmless-error review should be conducted when the trial court has given an instruction with an impermissible mandatory presumption. He first highlighted the problem with harmless-error review in the mandatory presumption context: the jury has arguably failed to make any finding on the fact that it was instructed to presume. He next explained that where a jury has failed to make a factual finding, a reviewing court may not find that element itself, no matter how overwhelming the evidence of that element may be. Justice Scalia, therefore, suggested that an appellate court could only review for harmless error in the mandatory presumption context by scrutinizing the jury instructions that were actually given in an attempt to determine whether the jury itself found the essential element. He said that an appellate court could find a mandatory presumption instruction harmless when "the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element to be presumed.” Id. at 271.
After Rose, Pope, and Carella,4 the appellate courts were in disagreement whether a trial *264court’s failure to instruct on an essential element of an offense could ever be harmless error. Those courts that held that a failure to instruct could be harmless error could not agree when such an error would be deemed harmless.5
hi
The United States Supreme Court’s recent decision in Sullivan v Louisiana, 508 US —; 113 S Ct 2078; 124 L Ed 2d 182 (1993), precludes an appellate court from holding that a failure to instruct on an essential element is harmless because a properly instructed jury surely would have found the uninstructed element.
In Sullivan, the trial judge gave a faulty reasonable-doubt instruction. The prosecutor conceded that the instruction was improper, but he argued that the error was harmless beyond a reasonable *265doubt. The Court held that harmless-error analysis was not appropriate in this context, and, writing for a unanimous Court, Justice Scalia made the following observations concerning harmless-error analysis:
Chapman itself suggests the answer [whether this sort of error is subject to harmless-error analysis]. Consistent with the jury-trial guarantee, the question it instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. . . . Harmless-error review looks, we have said, to the basis on which "the jury actually rested its verdict.” . . . The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered— no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee. . . .
Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the *266jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. . . . The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. . . . [Emphasis in the original.]
Insofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption —for example, the presumption that a person intends the ordinary consequences of his voluntary acts—violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense. . . . But "[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” [Id., 113 S Ct 2081-2082. Emphasis added.]
The Court’s opinion in Sullivan relied in part on Justice Stevens’ dissenting opinion in Pope v Illinois. The portion of Justice Stevens’ opinion on which the Court relied states:
An application of the harmless-error doctrine ' under these circumstances [where a defendant is denied a jury determination on an essential element] would not only violate petitioners’ constitutional right to trial by jury, but would also pervert the notion of harmless error. When a court is asked to hold that an error that occurred did not interfere with the jury’s ability to legitimately reach the verdict it reached, harmless-error analysis may often be appropriate. But this principle cannot apply unless the jury found all of the elements required to support a conviction. The harmless-error doctrine may enable a court to remove a taint from proceedings in order to pre*267serve a jury’s ñndings, but it cannot constitutionally supplement those ñndings. It is fundamental that an appellate court (and for that matter, a trial court) is not free to decide in a criminal case that, if asked, a jury would have found something that it did not ñnd. We have consistently rejected the possibility of harmless error in these circumstances. [481 US 497-498. Emphasis added.]
The analysis in Sullivan and the Court’s reliance therein on Justice Stevens’ opinion in Pope, indicates that harmless-error review necessarily assumes that the jüry has found all the elements of the crime beyond a reasonable doubt. Only after a jury has made such findings, as Justice Scalia explained, can a court intelligently ask whether the guilty verdict would have been the same absent the error. Where the jury has not found all the essential elements, an appellate court, in finding harmless error because a properly instructed jury surely would have found the uninstructed element, would be making the very mistake that Justice Scalia identified: it would be saying that the jury would surely have found all the essential elements.
Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit recently explained:
This principle [that a court is not free to "hypothesize a guilty verdict that was never in fact rendered,” Sullivan v Louisiana, 508 US —, —; 113 S Ct 2078, 2082; 124 L Ed 2d 182 (1993)] is equally applicable to a finding of an essential element of a crime—in this case, knowledge. In order to render a verdict of guilty, a jury must find all of the essential elements of the crime, under proper instructions. "[A] jury’s verdict [of guilty] cannot stand if the instructions ... do not require it to find each element of the crime under a *268proper standard of proof.” Here, the jury did not make a finding of knowledge under a proper instruction. For appellate court judges to make this finding, by concluding what the jury would have found under a proper instruction, violates the defendant’s Sixth Amendment right to have a jury actually make that finding. It is a structural error of constitutional dimension—the judges, instead of the jury, are making the finding essential to the verdict. See Sullivan, [508] US —, —; 113 S Ct 2082-2083. [United States v Aguilar, 994 F2d 609, 636 (CA 9, 1993) (Hug, J., dissenting), opinion withdrawn and superseded by 21 F3d 1475 (CA 9, 1994). Citations omitted.]
The Ninth Circuit recently accepted Judge Hug’s view in an en banc opinion written by Judge Hug. United States v Gaudin, 28 F3d 943 (CA 9, 1994). The court said that "a judge may not direct a verdict against a defendant no matter how clear the evidence, nor may an appellate court conclude under a harmless error doctrine that a jury 'would have’ found an essential element of the crime if the jury did not do so under proper instructions. Sullivan, [508] US —; 113 S Ct 2080, 2082.” Id. at 949. (Emphasis added.)
A number of state courts have also concluded, on the authority of Sullivan, that they may not review the record to determine whether a jury would have found an essential element had it been properly instructed. In State v Pyke, 640 So 2d 460 (La App, 1994), the trial court instructed the jury that it could convict the defendant of attempted second-degree murder if it found that he had either a specific intent to kill or a specific intent to commit great bodily harm. In Louisiana, however, "a specific intent to do great bodily harm is not an element of the crime of attempted second degree murder.” Id. at 462. Thus, in Pyke, there was no way of determining whether the jury had found all *269the essential elements of the charge when it rendered a guilty verdict. It may have found an intent to do great bodily harm instead of an intent to kill.
After discussing Sullivan’s teachings concerning harmless-error review, the court noted that it did not have the authority to deem an error harmless on the ground that a properly instructed jury surely would have found the uninstructed element:
The "specific intent to inflict bodily harm” error in this case must be likened to the "beyond-a-reasonable doubt” error which the United States Supreme Court in Sullivan determined is "structural” and vitiates all the jury’s findings.
[Moreover,] determining what a reasonable jury might have done in instructional error cases involving the deñnition of the crime necessarily interjects speculation in the reviewing process and results in "the wrong entity judging] the [defen-, dant’s guilt].” Sullivan v Louisiana, supra. [Id. at 465. Emphasis added.][6]
In Vigil v State, 859 P2d 659 (Wyo, 1993), the trial court failed to instruct the jury that recklessness was an essential element of involuntary manslaughter. The Wyoming Supreme Court reversed the defendant’s conviction, even though the defendant had proffered the erroneous instruction, because "inaccurate jury instructions on a speciñcally repealed statute, resulting in a possible conviction without proof beyond a reasonable doubt of all present elements of a crime, cannot be excused *270as invited error or harmless error. Sullivan v Louisiana, [508] US —; 113 S Ct 2078; 124 L Ed 2d 182 (1993).” 859 P2d 664 (emphasis added).
After Sullivan,7 a failure to instruct on an essential element cannot be found to have been harmless on the basis that the jury surely would have found the missing element had it been instructed on the element.
IV
Although an appellate court may not hold that a failure to instruct is harmless on the basis that the jury surely would have found the element of the offense on which it was not instructed an appellate court may nevertheless find such an instructional error to be harmless. In Martinez v Borg, 937 F2d 422 (CA 9, 1991),8 the United States Court of Appeals for the Ninth Circuit analyzed and adopted Justice Scalia’s approach to harmless-error review, and concluded that Justice Scalia would permit a limited form of harmless-error review where a trial court failed to instruct the jury on an essential element of an offense.
The Ninth Circuit held that while an appellate court may not make its own determination of what a jury would have found had it been instructed on all the elements of the offense, the court may *271review the record to determine whether " 'the jury found the facts necessary to support the conviction.’ ” 937 F2d 424, quoting Carella, supra (Scalia, J., concurring). The Ninth Circuit focused on the following language in Justice Scalia’s concurring opinion in Carella:
When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed. [491 US 271.]
In the Ninth Circuit’s words, if the appellate court determines that the jury found all the facts necessary to support the conviction, then " 'the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, "every fact necessary” to establish every element of the offense beyond a reasonable doubt.’ ” 937 F2d 424, quoting Rose v Clark, supra.9
*272Thus, a failure to instruct may be found to be harmless error, according to the Ninth Circuit’s reading of Justice Scalia’s views, if the reviewing court can determine that "no rational jury would have made these findings [the ones that we know the jury made on the basis of the instructions that were actually given] without also finding” that the prosecution proved the uninstructed element beyond a reasonable doubt. 937 F2d 425. In short, a failure to instruct may be found to be harmless if the reviewing court can determine that the jury actually found the element on which it was not instructed.10
*273V
The failure to instruct in this case was not harmless under the Ninth Circuit’s approach. Assuming that the jury found all the elements necessary to establish the esc charge and all the elements of kidnapping except the asportation, the jury would not have had to find that the prosecution had proven the asportation element of kidnapping.
The trial judge instructed on the kidnapping charge:
These are the elements the prosecution must prove beyond a reasonable doubt: First, that the victim as described here must have been forcibly confined or imprisoned; second, the victim must have been so confined or imprisoned against her will and without lawful authority; next, during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping.
In determining whether or not movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or for a substantial distance, that at the time of the confinement the defendant must have intended to kidnap the victim; next, at the time of the confinement the defendant must have been acting willfully and maliciously, willfully and maliciously meaning the defendant intentionally confined the victim knowing such confinement to be wrong, and that he did so without legal justification or excuse.
As observed in the lead opinion, "the trial judge in effect permitted jurors to find the asportation element satisfied by movement merely incidental *274to the commission of esc.”11 The jury could have found that the asportation element of kidnapping was satisfied when Vaughn "caused [Smith] to be moved” from his car into the motel room, or it could have found that the asportation element was satisfied when Vaughn moved Smith from the floor to the bed in the motel room. Neither of these findings would establish the essential element of an asportation with independent significance. In sum, the findings that the jury must have made (on the basis of the instructions that were given) do not compel the conclusion that the jury must also have found an asportation of independent significance.12 The failure to instruct on the asportation element in this case cannot be considered harmless.
VI
Even under the view that an appellate court can find that a failure to instruct was harmless if it concluded that a properly instructed jury could not have reached a different verdict,13 the failure to instruct was not harmless in this case. It is not clear that a properly instructed jury would have convicted Vaughn of kidnapping.
When the jury’s findings are read in light of the instructions, it becomes clear that the jury found that Vaughn raped Holly Smith, that he confined *275her, and that he moved her some distance. The jury obviously believed much of Smith’s testimony. It is noteworthy, however, that the portion of Smith’s testimony concerning the rape (and the confinement in conjunction with the rape) was corroborated, in large part, by forensic evidence and other testimony. Holly’s pelvis, vagina, and external genitalia were swollen. The police found nonmobile sperm in a vaginal smear taken from Holly, and they found semen in the crotch of Holly’s panties. Vaughn could not be eliminated as the source of the semen in the panties. Holly was observed with bruises on her face that were consistent with her claim that Vaughn hit her while they were in the motel room.
The evidence of an asportation is not as strong as the evidence of the sexual assault. The sole evidence that Vaughn moved Holly against her will was Holly’s own testimony. Holly testified that Vaughn drove her around while he was intoxicated and that during various stops he hit her.
Holly’s testimony, however, was not fully consistent with her initial statements to the police or with her testimony at the preliminary examination, and Vaughn’s lawyer impeached her on a number of aspects of the alleged asportation:
—Holly testified that while she and Vaughn were in the parking lot of Awad’s party store, she asked Vaughn to take her back to the bar and to take her home. Vaughn’s lawyer demonstrated that, in her initial report to Sergeant Elford, Holly mentioned only that she asked to be taken home at that point in the evening.
—Holly testified that when she attempted to jump out of Vaughn’s car, Vaughn pulled her back into the car and hit her in the face. Vaughn’s lawyer then impeached Holly with *276her preliminary examination testimony that after Vaughn pulled her back into the car (1) the car door hit her in the. head, and (2) Vaughn did not do anything besides pull her back into the car (i.e., did not hit her).
—Holly testified that when she ran from Vaughn’s car in the unfamiliar neighborhood, she knocked on only a single door in search of help. Vaughn’s lawyer confronted Holly with her statement to Sergeant Elford that she had knocked on several doors.
—Holly testified that when Vaughn forced her back into his car after she ran away in the unfamiliar neighborhood, Vaughn hit her twice with a closed fist. Vaughn’s lawyer impeached Holly with her statement to Sergeant Elford that mentioned only that Vaughn grabbed her around the neck and in which Holly did not say anything about being hit with a closed fist.
Not only was Holly Smith’s testimony not "uncontested,”14 it was successfully contested on a number of details.
I do not mean to suggest that the evidence was not sufficient to support a kidnapping conviction. If a properly instructed jury chose to believe the testimony of Holly Smith, it surely could have returned a verdict of guilty of kidnapping.
The uncorroborated testimony of Holly Smith— the sole evidence concerning the asportation and the force involved—is not overwhelming evidence that Vaughn moved her independently of the sexual assault. It is not clear that a jury could not have disbelieved the portion of Holly’s testimony that led up to the rape. An Adams15 asportation instruction was necessary.
*277Contrary to the view expressed in the concurring opinion, the failure to instruct concerning "incidental movement” instruction could have converted a lesser offense into a more serious offense.16 The kidnapping charge lodged against Vaughn was the predicate felony underlying the esc i charge against him. Thus, Vaughn could only have been convicted of esc i if the jury properly found that he had committed the offense of kidnapping.17 If the jury erroneously found an asportation and convicted Vaughn of. kidnapping—on the basis of the movement from the car to the motel—then its verdict on the esc i charge would also have been tainted. And, if the jury found only that Vaughn moved Holly Smith from the car to the motel, he should have been convicted of esc hi, not esc i. The failure to give the Adams asportation instruction could have led to Vaughn’s conviction on a more severe charge._
See In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970) (the prosecution must prove "every fact necessary to constitute the crime with which [the defendant] is charged” beyond a reasonable doubt); Carella v California, 491 US 263, 265; 109 S Ct 2419; 105 L Ed 2d 218 (1989) (jury instructions that relieve the state.of the burden of proving the essential elements of a crime "violate a defendant’s due process rights”); Martinez v Borg, 937 F2d 422, 423 (CA 9, 1991) (failure to instruct on an essential element "is constitutional error because the jury did not have the opportunity to find each element of the crime beyond a reasonable doubt”); Rael v Sullivan, 918 F2d 874, 875 (CA 10, 1990) ("We agree with those cases cited by appellant holding that a complete failure to instruct on an essential element of an offense violates the right to.due process”).
There are a number of decisions by this Court that indicate that a failure to instruct on an essential element can never be harmless error. In People v Butler, 413 Mich 377, 387; 319 NW2d 540 (1982), this Court said:
A judge’s incorrect recitation of the law undermines the purpose of jury instructions. Rather than conforming the jury’s factfinding to the law, an incorrect instruction poses the unacceptable risk of convicting a defendant of a crime unknown to the laws of Michigan. It is not, therefore, surprising that this Court will scrutinize the contested instruction closely and, upon finding that a judge failed to inform a jury of the true nature of the offense charged, will not countenance claims of "harmless error” but will reverse. People v Reed, 393 Mich 342, 351; 224 NW2d 867 (1975).
See also People v Hearn, 354 Mich 468, 473; 93 NW2d 302 (1958) ("We are in accord with appellant’s contention that this Court can and should reverse when the charge to the jury omits a legally essential ingredient, even though no request was made by defendant”) (emphasis added); People v Kanar, 314 Mich 242, 252; 22 NW2d 359 (1946); People v Hernandez, 84 Mich App 1, 10; 269 NW2d 322 (1978) ("Even though there was no request for this instruction or any objections to the ones given, reversible error is committed if the judge fails to instruct the jury on an essential element of the offense . . .”).
Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). Professor Meltzer has recently described Chapman as holding “that federal law often demands that state courts find errors prejudicial.” Meltzer, Harmless error and constitutional remedies, 61 U Chi LR 1 (1994).
Neither Rose, Pope, nor Carella settled the issue whether the failure to instruct on an essential element of a crime can ever be harmless error. In 1990, Justice White and Justice Marshall, dissenting from the denial of certiorari in a case that presented this issue, noted that "a conflict of authority exists concerning the availability of *264harmless-error analysis in this situation,” and they highlighted the "depth of this conflict.” Teel v Tennessee, 498 US 1007, 1008; 111 S Ct 571; 112 L Ed 2d 577 (1990) (White, J., dissenting from denial of certiorari).
In 1991, the United States Court of Appeals for the Second Circuit said that the question whether a trial judge’s failure to instruct on an essential element can ever be harmless "is a close one, we believe.” United States v Smith, 939 F2d 9, 11 (CA 2, 1991).
Compare Hoover v Garfield Heights Municipal Court, 802 F2d 168, 177 (CA 6, 1986) (construing Rose as precluding the application of harmless-error review where the trial court fails to instruct on an essential element); State v Olin, 111 Idaho 516, 528-530; 725 P2d 801 (1986) (same); State v Hamilton, 30 Conn App 68, 77; 618 A2d 1372, 1377 (1993) (harmless-error review was not appropriate where the trial court failed to instruct the jury on an essential element); State v Collins, 88 Ohio App 3d 291; 623 NE2d 1269 (1993) (following Hoover, supra, and refusing to apply a harmless-error analysis where the trial court failed to instruct on an essential element) with United States v Kerley, 838 F2d 932, 939 (CA 7, 1988) (failure to instruct clearly on an essential element can be harmless error, and a particular error may be harmless where the uninstructed element is "not [realistically] contestable and . . . barely if at all contested”); Willard v California, 812 F2d 461 (CA 9, 1987) (failure to instruct on an essential element can be harmless error and a particular error may be harmless because the jury itself could be deemed to have made a finding on an uninstructed element).
See also Esquibel v Rice, 13 F3d 1430, 1435 (CA 10, 1994) (Brorby, J., dissenting). In this case, Judge Brorby concluded that the failure to instruct on an essential element of an offense was "plain constitutional error.” He then said, "Applying the law of this Circuit, I would conclude the omission of an essential element from the jury charge precludes a harmless error analysis.” The majority did not disagree with this statement by Judge Brorby. It did not find error, and therefore did not reach this issue.
Before Sullivan, the United States Court of Appeals for the Ninth Circuit recognized that where a trial court has failed to instruct on an essential element, an appellate court may not review the record to determine whether a properly instructed jury would have found the missing element. In Martinez v Borg, 937 F2d 422, 426 (CA 9, 1991), where the trial court failed to instruct on an essential element, the Ninth Circuit said, "we cannot speculate about how the jury would have weighed this evidence [on the omitted element] had it been instructed to do so.” The Ninth Circuit specifically disapproved of "reviewing the record to determine if the evidence overwhelmingly establishes the defendant’s guilt . . . .” Id. at 424.
The Ninth Circuit has recently followed Martinez. United States v Mendoza, 11 F3d 126 (CA 9, 1993).
The Ninth Circuit cited its decision in Willard, n 5 supra, as an example of how an appellate court may determine that a trial court’s failure to instruct on an essential element may be harmless. In Willard, the defendant was charged with robbery, and the prosecution argued, inter alia, that Willard was guilty as an aider and abettor. The trial court failed to instruct the jury that an essential element of aiding and abetting is a specific intent to commit the crime committed by the principal, and the jury convicted Willard of robbery. The Ninth Circuit held that the failure to instruct on specific intent was harmless because
under the challenged instructions, the verdict represents a finding that Willard had knowledge of the gunman’s unlawful purpose and that he was present at the robbery and aided, promoted, encouraged or instigated it. In our view, the jury could not have found these elements of the crime without also finding that Willard had the intent of committing . . . the crime. [Id. at 464.]
See also State v Orosco, 113 NM 780; 833 P2d 1146 (1992). The New Mexico Supreme Court affirmed a conviction of criminal sexual contact of a minor although the trial court had failed to instruct the jury that the unlawfulness of the touching (i.e., that it was not for a medical or other proper purpose) was an element of the offense. The court said:
Thé circumstances of these cases are important also because, to the extent we affirm the convictions, we do not in effect direct a verdict for the state or make an independent finding on the element of unlawfulness. Rather, we rest our decision on the basis that, under the undisputed evidence of unlawfulness in the cases and the facts upon which the juries relied to find that defendants committed the acts, the juries themselves effectively determined the existence of the omitted element. [Id., 833 P2d 1152. Emphasis added; citations omitted.]
In Orosco, the defendant did not dispute that an unlawful touching occurred. He denied that he did the touching, and he denied knowing that another person was touching the child. The court held that the overwhelming evidence of an unlawful touching, the defendant’s concession that an unlawful touching occurred and the jury’s finding that the defendant touched the boy both combined to render the instructional error harmless.
The United States Court of Appeals for the Third Circuit applies this form of harmless-error review when a trial court fails to instruct on an essential element and when the defendant fails to object. See United States v Anderson, 859 F2d 1171, 1176 (CA 3, 1988) (finding failure to instruct on an essential element to be harmless where, in light of the jury’s findings, "it is impossible to conclude that the jury may not have been in unanimous agreement that Anderson was guilty of three underlying drug crimes”) (emphasis added).
Ante, p 234.
Cf. Martinez, supra, 425-426 (the jury’s finding that the defendant knew that the perpetrator’s purpose in firing a gun at the officer does not necessarily mean that the jury found that the defendant, who was charged as an aider and abettor, shared the perpetrator’s purpose); United States v Mendoza, n 8 supra (failure to instruct the jury that the firearm that the defendant was carrying had to be "in relation to” the underlying felony is not harmless error where the court could not rule out that the jury convicted without finding that firearm related to the felony).
Ante, p 238.
Boyle, J., ante, pp 253-254.
People v Adams, 389 Mich 222; 205 NW2d 415 (1973).
Boyle, J., ante, p 252.
The only theory of esc i on which the jury was instructed concerned the commission of forced penetration in conjunction with an underlying felony. Though other theories of esc I may have been applicable in this case, they were not contained in the judge’s instructions.