UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-7552

ANTHONY CLARK ODOM,

Petitioner – Appellant,

v.

JERRY B. ADGER,

Respondent – Appellee,

and

DIRECTOR BRIAN WILSON; PETITIONERS PROBATION AGENT, South Carolina Department of Probation, Parole, and Pardon Services,

Respondents.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, Senior District Judge. (5:15-cv-03249-MBS)

Argued: December 7, 2017 Decided: January 19, 2018

Before TRAXLER, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge Traxler and Judge King joined. ARGUED: Brian Deen McDaniel, LAW OFFICE OF BRIAN MCDANIEL, LLC, Beaufort, South Carolina, for Appellant. Caroline M. Scrantom, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PAMELA HARRIS, Circuit Judge:

A jury convicted Anthony Odom of criminal solicitation of a minor after he

engaged in sexually explicit online communications with an undercover police officer

posing as a young girl. State law required the prosecution to prove that Odom was at

least 18 years old at the time of his online messages.

.

Instead, and over Odom’s objection, the trial court took judicial notice of Odom’s

birthdate – which put him well over age 18 – and instructed the jury not to deliberate on

that element of the offense.

On appeal, the Supreme Court of South Carolina held that by effectively directing

a verdict on the element of Odom’s age, the trial court committed constitutional error. It

nevertheless affirmed Odom’s conviction, reasoning that the error was subject to

harmless-error review and was indeed harmless. Odom petitioned for relief under

§ 2254, and the district court denied relief under the harmless-error standard. For the

reasons below, we affirm.

I.

A.

In May of 2006, Odom entered an internet chat room, where he solicited an

individual he believed to be a minor. In fact, Odom was chatting with a law enforcement

officer pretending to be a young girl, as part of a sting operation against sexually

predatory adult behavior. Odom was charged with criminal solicitation of a minor under

South Carolina law, which requires that the defendant be 18 years of age or older at the

3 time of the solicitation. See State v. Odom,

, 151 & n.1 (S.C. 2015)

(quoting

). 1

At Odom’s trial, the prosecution introduced evidence of online communications

between Odom and Officer Mark Patterson, who had adopted the online persona of a 13-

year-old girl named Jennifer. Patterson testified at trial, explaining that Odom, who

identified himself as 40 years old, “began asking questions of a sexual nature” after

Patterson presented himself as a 13-year old. J.A. 45. Patterson also showed the jury

transcripts of his chats with Odom.

To prove Odom’s age, the prosecution sought to rely on certified copies of

Department of Motor Vehicle records showing Odom’s birthdate. The defense objected,

arguing that the state had failed to disclose the records to the defense before trial, as

required by state criminal procedure rules, and refused to stipulate to Odom’s age. The

prosecution clarified that it was not proposing to introduce the records into evidence, but

instead that the court take judicial notice of Odom’s birthdate. The defense continued to

object, on the ground that a court may not take judicial notice of an element of a criminal

offense.

The trial court granted the prosecution’s request, taking judicial notice of Odom’s

birthdate as reflected in the Department of Motor Vehicles records and instructing the

jury that it had done so. The court also identified Odom’s birthdate for the jury, and

1 An earlier prosecution of Odom, based on additional chatroom encounters with undercover officers during the spring of 2006, ended in a mistrial. State v. Odom,

, 152 n.4 (S.C. 2015).

4 explained to the jury that it “must find [the date of birth] conclusive” and was “not

allowed to debate [it].” J.A. 62. The court gave the same instruction at the end of the

trial.

B.

On direct appeal, Odom argued that the trial court committed constitutional error

when it took judicial notice of his birthdate, relieving the prosecution of the burden of

proving an element of his offense. The Supreme Court of South Carolina agreed, holding

that “[t]he taking of judicial notice of [Odom’s] date of birth was tantamount to a directed

verdict on the element of the accused’s age, a practice which is clearly forbidden.”

Odom,

. But that error, the court continued, did not require reversal of

Odom’s conviction. Noting that “most constitutional errors can be harmless,”

(quoting Arizona v. Fulminante,

(1991)), the court relied on Neder v.

United States,

(1999), to conclude that the failure to send an element of an

offense to the jury for decision is subject to harmless-error review. And in light of other

evidence that Odom was 18 years or older at the time of the offense – namely, Odom’s

representation that he was 40 during his chat with Patterson and the jury’s ability to

observe Odom during trial – the court held that the error in this case was harmless beyond

a reasonable doubt.

Odom filed a habeas petition in federal court under

, raising the

same claim. According to Odom, the trial court’s judicial-notice error was one of a small

group of “structural errors” that are not subject to harmless-error review and instead call

for automatic reversal. A magistrate judge recommended denying the petition, and the

5 district court adopted that recommendation. Like the Supreme Court of South Carolina,

the district court relied on Neder to hold that “[j]ury instructions that omit an element of

an offense” are not within the “limited class” of automatically reversible structural errors,

but are instead governed by the harmless-error standard. J.A. 137–38. The district court

also agreed that the error in this case was harmless, and accordingly dismissed Odom’s

petition.

This timely appeal followed. We granted a certificate of appealability to decide

one question only: whether the district court correctly concluded that the trial court’s

error in taking judicial notice of Odom’s age, an element of the crime, was subject to

harmless-error review.

II.

We review the district court’s denial of a habeas petition de novo. Teleguz v.

Pearson,

(4th Cir. 2012). Our analysis is circumscribed, however, by

the amendments to

enacted in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under AEDPA, we may not grant relief on a claim

adjudicated on the merits in a state court proceeding unless, as relevant here, the state

court’s determination is “contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United States.”

(d)(1).

The government does not dispute that the trial court erred when it took judicial

notice of Odom’s birthdate instead of submitting the issue to the jury: Due process

6 requires the prosecution to prove every element of a criminal offense beyond a

reasonable doubt, In re Winship,

(1970), and that the defendant is over

18 is an element of criminal solicitation of a minor under state law, State v. Reid,

(S.C. Ct. App. 2009); Odom,

, 155–56. But the fact

that a constitutional error has been committed does not “automatically require reversal of

a conviction.” Fulminante,

. Instead, if the government, on appeal, can

show “beyond a reasonable doubt that the error complained of did not contribute” to the

guilty verdict, then the error generally is deemed harmless and the conviction may be

affirmed. Neder, 527 U.S. at 15–16.

There are exceptions, however. The Supreme Court has identified a narrow class

of constitutional errors as “structural,” in that they undermine the entire “framework

within which the trial proceeds,” rather than being simply errors “in the trial process

itself.” Weaver v. Massachusetts,

(2017) (quoting Fulminante,

). Errors of this sort – for instance, the total deprivation of trial counsel, or

trial before a biased judge, see Fulminante, 499 U.S. at 309–10 – are not subject to

harmless-error review at all. Instead, “where there is an objection at trial and the issue is

raised on direct appeal, the defendant generally is entitled to automatic reversal

regardless of the error’s actual effect on the outcome.” Weaver,

(internal quotation marks omitted).

At issue in this case, then, is whether the trial court’s judicial-notice error, raised

by the defendant at trial and on appeal, is within the small category of structural errors for

which automatic reversal is the remedy, or whether it is subject to standard harmless-

7 error review. And because the issue arises in the context of a § 2254 petition, the narrow

question before us is whether the state supreme court’s resolution of that issue – that a

trial court’s judicial notice of an element of a crime is subject to harmless-error analysis –

is contrary to or an unreasonable application of clearly established Supreme Court

precedent under § 2254(d)(1). We conclude that the state supreme court’s holding falls

well within the parameters of § 2254(d)(1).

For his contrary position, Odom relies exclusively on Sullivan v. Louisiana,

(1993), in which the Supreme Court held that failure to instruct a jury properly

on the reasonable-doubt standard constitutes structural error that is not amenable to

harmless-error review.

at 281–82; see Weaver,

(discussing

Sullivan). According to Odom, the upshot of the error in this case is the same as in

Sullivan: When the trial court took judicial notice of his birthdate, Odom was “deni[ed]

the right to a jury verdict of guilt beyond a reasonable doubt” on the element of his age at

the time of the charged offense, fatally undermining the structural right to trial by jury.

See Sullivan, 508 U.S. at 281–82. And indeed, in United States v. Johnson,

,

142–44 (4th Cir. 1995), this court applied Sullivan to find that a trial court committed

structural error, warranting automatic reversal, when it instructed that an element of the

charged offense had been established as a matter of law instead of leaving it to the jury to

make that finding.

The problem for Odom is that Sullivan is not the Supreme Court’s last word on

this subject. As the Supreme Court of South Carolina recognized, six years after

Sullivan, the Supreme Court considered in Neder v. United States whether the erroneous

8 omission of an element of a crime from jury instructions – in that case, a failure to

instruct on materiality in a fraud trial – is subject to harmless-error review. Recognizing

that such an error “prevent[s] the jury from making a finding on [an] element” of the

criminal offense,

, the Court nevertheless concluded that harmless-error

review applies. The “absence of a ‘complete verdict’ on every element of the offense,”

the Court explained, establishes no more than the fact of a constitutional error; it does not

amount to a structural error warranting automatic reversal.

. The Court declined

to “extend the reasoning of Sullivan . . . to a failure to instruct on an element of the

crime,” reasoning that a defective reasonable-doubt instruction “vitiates all the jury’s

findings,” in contrast to an improper or omitted instruction on a single element of an

offense.

at 10–11, 15 (internal quotation marks omitted).

As the state supreme court observed, this case has much in common with Neder.

As in Neder, the trial court’s error – here, taking judicial notice of Odom’s birthdate –

had the effect of “preclud[ing] the jury from making a finding” on an element of the

charged offense, resulting in “the absence of a ‘complete verdict’ on every element” of

criminal solicitation of a minor. See

. But also as in Neder, the error in

question did not “vitiate all the jury’s findings,” see

(internal quotation marks

omitted), making it possible to distinguish Sullivan’s treatment of defective reasonable-

doubt instructions as structural errors. See Mitchell v. Esparza,

(2003)

(per curiam) (distinguishing Neder from Sullivan on this ground).

We are mindful of the limited scope of our review under § 2254(d)(1). We need

not decide whether the trial court’s “directed verdict” on the element of Odom’s age, see

9 Odom,

, is tantamount in all respects to the omitted materiality

instruction in Neder, necessarily compelling the application of harmless-error review. 2

The only question before us today is whether the Supreme Court of South Carolina

“unreasonably” concluded that this case is closer to Neder than to Sullivan, so that

harmless-error review applies. See Wiggins v. Smith,

, 520–21 (2003) (“In

order for a federal court to find a state court’s application of [Supreme Court] precedent

unreasonable, the state court’s decision must have been more than incorrect or erroneous.

The state court’s application must have been objectively unreasonable.” (internal

quotations marks and citations omitted)). In light of Neder’s holding that the omission of

an element of a charged offense from jury instructions is non-structural error subject to

harmless-error review, the state court’s determination in this case was by no means

“objectively unreasonable” under

(d)(1).

III.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

2 By the same token, we may leave for another day the status of United States v. Johnson,

(4th Cir. 1995), treating as structural error what was effectively a directed verdict on an element of an offense, in light of the Supreme Court’s subsequent decision in Neder.

10