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Hinson v. State (11/28/2008) ap-2196

Hinson v. State (11/28/2008) ap-2196

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


LANCE D. HINSON, )
) Court of Appeals No. A-9725
Appellant, ) Trial Court No. 3AN-02-5463 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2196 November 28, 2008
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:   Marjorie  Allard,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the  Appellant.
          Diane   L.   Wendlandt,  Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
     
          A   jury   convicted  Lance  D.  Hinson   of   extreme-
indifference  second-degree murder1 for strangling Tina  Shangin.
The  superior  court  imposed a net 70-year  term  to  serve  and
          restricted Hinsons eligibility for discretionary parole until he
served 40 years imprisonment.
          Hinson   appeals,  arguing  that  the  superior   court
wrongly  denied his motion for judgment of acquittal.  We  reject
this argument because reasonable jurors could find that the State
proved the charge beyond a reasonable doubt.
          Hinson  also  contends that his sentence is  excessive.
We  affirm  Hinsons  70-year term because  the  sentence  is  not
clearly   mistaken.   However,  we  vacate  the  40-year   parole
restriction  imposed  by the superior court  because  the  courts
sentencing  findings  do not justify the  restriction.   We  also
vacate  a  challenged probation condition because the record  and
the courts sentencing comments do not show that the condition  is
reasonably related to Hinsons rehabilitation or the protection of
the public.

          Facts and proceedings
          On  August 6, 2000, three men found a decomposing  body
in  a wooded area near the intersection of Bragaw Street and  the
Glenn  Highway.   When the police responded, they found  Shangins
body, naked and face up, with her legs spread.  Shangin was fifty-
nine  years old and frequented the area where her body was found.
Hinson  was  one of the last people seen with Shangin before  she
disappeared.
          Chief Medical Examiner Frank G. Fallico testified  that
Shangin  died  of  asphyxiation due  to  neck  compression.   Dr.
Fallico  testified  that  the  condition  of  Shangins  body  was
consistent  with a body that had been deceased and lying  in  the
same place for up to ten days.
          Dr.  Fallico  also found defensive wounds  on  Shangins
body, specifically noting that Shangins broken fingernails showed
signs  of a struggle.  He testified that a hair caught in one  of
the  broken  fingernails could be evidence of another person  who
was present at Shangins death.  Dr. Fallico explained that when a
person  is strangled, there is a strong instinct to grasp at  the
person doing the strangling.
          The  police collected evidence from the crime scene and
from  Shangins body.   Various hairs found on Shangins body  were
tested.   Testing by the state crime lab found the hair from  her
broken  fingernail was microscopically consistent with  Shangins,
as  were  hairs from Shangins shoulder.   Another hair  found  on
Shangins  shoulder was tested for DNA, and Hinson  could  not  be
excluded as the source of that hair.
          Vaginal   swabs   of  Shangins  body  contained   sperm
components  with DNA from two men.  Hinson could not be  excluded
as the source of the major component of the sperm.  The source of
the minor component was not identified.
          The  police interviewed Hinson several times  over  the
course  of  the  next  two  years.   Hinson  changed  his   story
repeatedly  over the course of the interviews, and he  identified
other people who may have been responsible for Shangins death.
          During  his  first interview with police,  Hinson  said
that  he  had been drinking with Shangin and a group  of  friends
about  ten  days  before  her  body  was  discovered.  During   a
subsequent interview, he stated that he last saw Shangin about  a
month before her body was found.
          Hinson  also admitted that he had a sexual relationship
with  Shangin.   At first, he claimed that he had  sex  with  her
about  a  month before she disappeared, across the  highway  from
where  she was found.  Later, he stated that he had sex with  her
the  last time he saw her, about ten days to two weeks before her
body  was  found.   Eventually, he stated that he  had  sex  with
Shangin about a week before her body was found.
          During  the  interviews,  the detectives  asked  Hinson
whether  he  knew  about Shangins dead body.   At  first,  Hinson
claimed that he had heard rumors that there was a dead body,  but
did not know whose it was.  Later, Hinson told the police that he
told Shangins son that Shangins body had been found.  Eventually,
Hinson  admitted that he discovered Shangins body three  or  four
days  after he had sex with Shangin.  Hinson stated that Shangins
body  was  stiff  and he did not call the police because  he  was
afraid he would become a suspect.
          During  the  interviews, Hinson speculated  as  to  who
killed  Shangin. He identified a person he described as  Shangins
boyfriend.  He later claimed that a man by the name of Darryl  or
D.J.  may  have murdered Shangin.  Hinson said that when  he  was
drinking  with  his  friends, he heard  Shangins  scream  in  the
distance.    Hinson claimed that D.J. then came out of the  woods
with a solemn look on his face and that D.J.s hands looked weird.
          Hinson  eventually  stated  that  on  the  night   that
Shangin went missing, he had sex with her near the area where her
body  was found.  Hinson said that he left Shangin a few  minutes
after they had sex.  He said that when he left, Shangin was lying
naked  on  the  ground, silent, and not moving except  for  heavy
breathing.   Hinson told detectives he felt something  was  wrong
when  he  left Shangin.  He returned days later to check on  her,
only to find her dead.
          The  grand  jury indicted Hinson on charges  of  first-
and second-degree murder and manslaughter.2
          After the State presented its case, Hinson moved for  a
judgment  of acquittal.  Hinson argued that when a case is  based
on  circumstantial evidence, the evidence must be  of  sufficient
weight  to exclude every reasonable hypothesis that the defendant
is innocent.  Hinson maintained that there was no direct evidence
linking him to the homicide, no evidence that he had a motive  to
kill  Shangin,  and that the State had failed  to  exclude  every
other  reasonable hypothesis.  Superior Court Judge Stephanie  E.
Joannides took the motion under advisement and allowed the  trial
to proceed.
          The  jury  acquitted Hinson of first-degree murder  but
convicted him of second-degree murder.  Hinson renewed his motion
for  judgment  of  acquittal after the jury verdicts,  and  Judge
Joannides later issued a written decision denying his motion.
          Judge   Joannides  found  three  statutory  aggravating
factors  from  AS 12.55.155: (c)(2) (Hinsons conduct  during  the
commission  of  the  offense  manifested  deliberate  cruelty  to
another   person);  (c)(8)  (Hinsons  criminal  history  includes
conduct  involving aggravated or repeated instances of assaultive
behavior);  and  (c)(10)  (Hinsons conduct  was  among  the  most
serious  within the definition of the offense).  Judge  Joannides
          also found that Hinson was a worst offender.  The judge sentenced
Hinson  to  99  years  imprisonment with 29 years  suspended  and
imposed a 40-year parole restriction.

          Sufficient evidence supported Hinsons conviction
          When  we review the denial of a motion for judgment  of
acquittal,  we  view  the evidence presented  at  trial  and  the
reasonable  inferences  from  that evidence  in  the  light  most
favorable to the jurys verdict.3  The evidence is sufficient if a
fair-minded  juror exercising reasonable judgment could  conclude
that  the  State  had met its burden of proving [the  defendants]
guilt beyond a reasonable doubt.4
          Hinson  argues  that  no fair-minded  juror  exercising
reasonable judgment could have concluded that the State  had  met
its  burden  of proof.  He maintains that the case was  weak  and
built  exclusively  on circumstantial evidence.   But  as  Hinson
acknowledges,  Alaska  law does not distinguish  between  a  case
built  on  direct  evidence and a case  built  on  circumstantial
evidence.5
          In  each of his successive statements to investigators,
Hinson  admitted to being incrementally closer to  Shangins  body
and  being  with  her closer to the time of  her  death.   Hinson
argues that his initial hesitance to reveal the truth arose  from
his  concern that he would become a suspect.  He argues that this
fear  of  becoming a suspect led him to lie to the  police  about
having sex with Shangin the last time he saw her alive.  However,
as  the  State  points out, the jury could, and did,  infer  that
Hinson  was  lying  to  protect himself  from  being  accused  of
Shangins murder.
          Hinson  also argues that the superior court erroneously
found  it  significant that Hinsons DNA was found  in  the  major
component  of sperm taken from Shangin.  Hinson points  out  that
there  was a second, minor component of sperm found that belonged
to another unidentified man, and argues that the trial court made
the inference that because Hinson was identified as the source of
the  major  component,  it was most likely  that  he  had  sexual
relations with Shangin after the other man.  Hinson contends that
this  is an incorrect inference as the forensics expert at  trial
stated   that   there  was  no  correlation  between  major/minor
component  sperm  and  the ordering in which  it  was  deposited.
Hinson  notes  that  the minor component of sperm  could  not  be
identified, even though police tested Shangins acquaintances  and
boyfriend.  Hinson contends that this creates a strong  inference
that  sex  with the unidentified man may not have been consensual
and  it  was a stranger who was the cause of Shangins death.  But
the  superior court did not make that inference.  In  fact,  when
Hinson  was arguing the motion during trial, the court recognized
that no specific testimony linked the condition of the DNA to the
time of Shangins death.
          The   State   points  out  that  Kevin   Peterson,   an
acquaintance  of Shangins, saw Hinson with Shangin  on  July  28,
2000,  the  day  Shangin  disappeared.  Peterson  testified  that
Shangin  told  him that she and Hinson were going to  the  liquor
store  and  then  to the trails (the location where  Shangin  was
found) to drink.
          Shangin  was  last seen on July 28, 2000, with  Hinson,
and  was  found 9 days later on August 6, 2000. The DNA  evidence
established  that  Hinson  had sex  with  Shangin.   And  Hinsons
statements  placed  him  at the scene of Shangins  death.   This,
coupled  with  Petersons testimony that he last saw Shangin  with
Hinson  on the day she disappeared, could lead the jury  to  find
that Hinson was the last person with Shangin before she died.
          Hinson    also    argues   that   the   trial    courts
characterization  that  the  hair  evidence  was  of   particular
significance  is  incorrect.  The superior  court  reasoned  that
because  two  of the three hairs found on Shangins bruised  right
shoulder  exhibited the same microscopic features as Hinsons,  it
would  support the theory that he saw her very close to the  time
of  her death because it would have been unlikely that if he  had
had sex with her a number of days before that the hair would have
remained on her bruised right shoulder.
          Hinson  asserts that this is not a reasonable inference
to make based on the hair evidence.  Hinson asserts that the hair
evidence  actually tends to support his claim of  innocence.   He
notes  that,  even  though  one of the hairs  found  on  Shangins
shoulder matched his, two other hairs on her shoulder  hairs that
still  had  their roots attached  did not match his hair.   These
two hairs were consistent with Shangins own hair.
          Hinson  argues  that the hair with the  roots  attached
was  most  likely  forcibly removed from  the  head  of  Shangins
attacker  during a struggle, and the hair without its  root  (the
hair  that  matched Hinsons hair) likely fell onto Shangins  body
when Hinson purportedly discovered the body a day or two after he
had  sex  with  her.  But as the State points out,  a  reasonable
juror  could  infer that the hair fell from Hinson while  he  was
strangling Shangin.  More importantly, an inference could be made
that  it  was unlikely that Shangin moved after the hair fell  on
her,  which  would  support the States theory  that  Shangin  was
strangled by Hinson while they had sex and that Shangin never got
up after Hinson left her.
          Hinson  also  argues  that the hair  evidence  is  more
exculpatory  than  inculpatory.  He notes that the  rooted  hairs
especially the hair found wedged in Shangins fingernail  were not
DNA  tested.  Hinson argues that the States assertion that  these
hairs   belonged   to  Shangin  was  based  on  a   less-reliable
microscopic comparison.            Hinson argues that  the  State
never  conducted any DNA tests on those hairs and did not try  to
match  the DNA sperm sample to any of the DNA from them.   Hinson
asserts  that DNA testing done by the defense suggested that  the
hair in the fingernail did not belong to the victim.
          While  the  defense  expert stated that  the  hair  had
surface DNA from a female, he also explained that he did not know
where the DNA came from.  He stated that it could have come  from
the  hair  shaft, from blood or saliva, or another  bodily  fluid
that  had contact with the hair.  Therefore, the jury could infer
based  on  the  States  expert that the hair  found  in  Shangins
fingernail was microscopically consistent with Shangins hair, and
that  the  DNA found on the surface of the hair could  have  been
transferred when Shangin came in contact with another person.
          Hinson  argues that there was insufficient evidence  to
convict  him  based on the inconclusive nature  of  the  forensic
evidence and the largely exculpatory nature of Hinsons statements
to the police.  But, taking the facts in the light most favorable
to  the  jurys  verdict,  the  jury could  have  made  reasonable
inferences  from the evidence admitted at trial  and  found  that
Hinson   was   guilty  of  murder  beyond  a  reasonable   doubt.
Accordingly,  we  conclude  that  sufficient  evidence  supported
Hinsons conviction.

          Hinsons sentence is not excessive
          During  sentencing,  Judge Joannides  reviewed  Hinsons
criminal history.   Hinson was convicted in 1986 for first-degree
burglary and fourth-degree theft.  That court initially suspended
imposition  of sentence, but later imposed sentence  when  Hinson
was  convicted  in  1987  on two counts of  second-degree  theft.
Hinson  also  had a 1992 conviction for shoplifting  and  a  1995
conviction  for  larceny.   The  judge  noted  that  Hinson   was
convicted for misdemeanor assault in 1994 and 1995, and  that  he
also had a 1998 conviction for indecent exposure.  She also found
Hinson had committed two uncharged incidents of indecent exposure
in  June  and July of 2000.  In addition, the presentence  report
indicates  a  conviction  in 1994 for driving  with  his  license
revoked.
          Judge    Joannides   found   that   all   efforts    at
rehabilitating  Hinson  had been unsuccessful.   The  presentence
report  indicates that Hinson did not perform well  on  probation
supervision.   During  the  time  Hinson  was  on  probation  for
felonies,   he  failed  to  appear  on  numerous  occasions   for
urinalysis and absconded from supervision.  As a result of  these
violations,  Hinsons  parole was revoked.  Judge  Joannides  said
that she was concerned with Hinsons prospects for rehabilitation,
noting that Hinson had been released to a halfway house which  is
a  very  structured setting where he was allowed to go  into  the
community and ... come back, or he was able to walk away, and  in
fact,  [Hinson] did.  During one time that Hinson  absconded,  he
was charged and convicted for shoplifting cigarettes.
          Judge  Joannides also noted Hinsons history of  alcohol
abuse,  his  almost non-existent work history, and  his  lack  of
familial support.  Judge Joannides found that isolation  was  the
primary  concern  in Hinsons case and community condemnation  and
rehabilitation were secondary.
          Judge    Joannides   found   that   several   statutory
aggravating  factors from AS 12.55.155 applied in  Hinsons  case:
(c)(2)  (Hinsons  conduct during the commission  of  the  offense
manifested deliberate cruelty to another person); (c)(8) (Hinsons
criminal  history  includes  conduct  involving  aggravated   and
repeated  instances of assaultive behavior); and (c)(10) (Hinsons
conduct was among the most serious within the definition  of  the
offense).  Hinson challenges Judge Joannidess finding that (c)(2)
and (c)(10) were applicable.
          We   have  some  doubt  that  the  (c)(2)  finding   is
supported  by  the  record.  We analyzed the  (c)(2)  aggravating
factor in Juneby v. State 6:
          The  word cruelty ... denotes the infliction
          of  pain  or suffering for its own sake,  or
          for the gratification derived therefrom.  We
          think  that, in accordance with this  common
          definition, the term deliberate cruelty,  as
          used   in   AS   12.55.155(c)(2)   must   be
          restricted   to  instances  in  which   pain
          whether    physical,    psychological,    or
          emotional  is inflicted gratuitously  or  as
          an  end  in  itself.  Conversely,  when  the
          infliction  of pain or injury  is  merely  a
          direct   means  to  accomplish   the   crime
          charged,  the  test  for  establishing   the
          aggravating  factor  of  deliberate  cruelty
          will not be met.[7]
Although  it  is reasonable to conclude that Shangin  experienced
pain  when  she  was strangled, we find little  evidence  in  the
record  that  Hinson inflicted that pain as an end in  itself  or
gratuitously  as opposed to inflicting the pain as a  consequence
of  his  conduct in committing extreme indifference second-degree
murder.   But second-degree murder is an unclassified  felony  to
which  presumptive sentencing does not apply; aggravating factors
apply  only  by  analogy.8  Therefore, the issue of  whether  the
trial court properly found aggravating factors is moot.
          Judge  Joannides  also found that Hinson  was  a  worst
offender  based  on  his  prior criminal history,  his  substance
abuse, his failure to benefit from past probation, and the  facts
of Shangins murder.
          Judge  Joannides compared Hinsons crime to the  second-
degree  murder in Faulkenberry v. State.9  Faulkenberry set  fire
to an apartment, leaving a woman that was passed out on the couch
to  die.10  At the time of the murder, Faulkenberry was  nineteen
years old and had no prior adult criminal history.11  He did have
severe emotional and behavioral problems and had been adjudicated
as  a delinquent when he was a child.12 Faulkenberry abused drugs
and  alcohol at an early age and continued until the time of  his
arrest.13   The  superior court found that Faulkenberrys  conduct
involved  a reckless and dispassionate disregard for the  victims
life  and  safety.14  Even though the superior  court  classified
Faulkenberry   as   a  worst  offender,  we   ruled   that   that
classification did not require the superior court to  impose  the
maximum  sentence.15   We  therefore  upheld  the  60-year   term
imposed.16
          Judge  Joannides  found  that Hinsons  crime  showed  a
reckless or callous disregard for Shangins life.  She based  this
finding partly on the statements Hinson made that he left Shangin
alone  in the woods and in a vulnerable condition while  she  was
having  trouble  breathing.   Judge  Joannides  decided  that   a
sentence  greater than Faulkenberrys 60-year term was appropriate
because  Hinson was an older offender with an extensive  criminal
record, and Hinson made no effort at substance abuse treatment.
          From  our  review of the sentencing record, we conclude
that Hinsons 70-year term to serve is not clearly mistaken.17
          Judge  Joannides also imposed a 40-year restriction  on
Hinsons  eligibility  for  discretionary  parole.   In  Stern  v.
State,18 we held that a sentencing judge exercising the authority
conferred  by  AS 12.55.115 to restrict a defendants  eligibility
          for discretionary parole must specifically address the issue of
parole restriction [and must set] forth with particularity his or
her  reasons  for concluding that the [normal] parole eligibility
prescribed   by  AS  33.16.090  and  AS  33.16.100(c)    (d)   is
insufficient  to protect the public and [e]nsure  the  defendants
reformation.19    Hinson   would   normally   be   eligible   for
discretionary parole after serving one third of his 70-year term.
The  superior  court  did  not  explain  why  the  normal  parole
restriction  was  inadequate  to protect  the  public  or  ensure
Hinsons   rehabilitation.   Accordingly,  we  must  vacate   that
restriction.
          Next,   we   address  Hinsons  contention  that   Judge
Joannides  should  have deleted several references  to  uncharged
incidents  of indecent exposure that occurred in Juneau  in  1993
and  1994  from  the  presentence  report.   Hinson  objects   to
allegations by A.L., Hinsons ex-girlfriend, that A.L.s mother saw
Hinson  masturbating  in front of A.L.s apartment  window.   A.L.
also  alleged that a friend had seen Hinson exposing  himself  to
others in the neighborhood.  Hinson claims that because he denied
those  incidents under oath, the State could not rely on  hearsay
to prove that the incidents occurred.
          In  Charliaga  v. State,20 we held that at  sentencing,
the  State  can  rely  on  hearsay allegations  of  a  defendants
misconduct,  unless  the defendant takes the  stand,  denies  the
allegations,  and  submits  to  cross-examination  regarding  the
matter.21  If the defendant does testify and deny the allegation,
the  State  must support the allegation with testimony  or  prove
that the hearsay declarant is not available to testify before the
sentencing  court can rely on the allegation.22  The  State  must
also   furnish  information  supporting  the  hearsay  declarants
credibility.23
          Here,  when  Hinson  testified, he  did  not  deny  the
incidents of indecent exposure reported by A.L.  Contrary to what
he  claims  in his brief, Hinson expressly chose not  to  testify
about  the  uncharged  acts  of  indecent  exposure.   The  trial
attorney told the court that Hinson made a strategic decision not
to address any indecent exposure charges.
          Absent Hinsons testimonial denial, Judge Joannides  was
authorized  to  rely  on  verified information  supporting  these
allegations.  Verified information includes information  that  is
corroborated   or   substantiated   by   supporting    data    or
information.24 In Nukapigak v. State, the sentencing judge relied
on  a  presentence report that included statements from  friends,
relatives,  and village members where the defendant lived.25   On
appeal,  the supreme court explained that a sentencing judge  may
rely  on these statements, even though they were hearsay, and  in
some  instances,  hearsay within hearsay,  because  the  evidence
appeared  to  be  trustworthy.26  The court  explained  that  the
identity  of  the  people giving statements were  made  known  to
Nukapigak and his attorney, and that they had the opportunity  to
examine  them  regarding the basis for their  statements  and  to
contradict,  explain, or rebut their assertions.  In the  absence
of an indication that the information might have been inaccurate,
the   sentencing  judge  was  entitled  to  consider  it  if  the
information appeared trustworthy.27
          In  this  case,  A.L.  testified  that  Hinson  exposed
himself  to  A.L.s mother.  A.L.s report about this incident  was
made  available to Hinson, and the identity of A.L.s  mother  was
also  known to Hinson.  Because Hinson did not testimonially deny
the  uncharged  acts of indecent exposure, and the  testimony  of
A.L.  regarding the uncharged incidents of indecent exposure  was
supported  by  information from both A.L. and in police  reports,
this information was properly included in the presentence report.
          Finally,  we address Hinsons challenge to the probation
condition  that requires Hinson to arrange all contact  with  his
children  through their mother, A.L., until the dependents  reach
eighteen  years of age.  The State requested that Judge Joannides
limit  contact  between  Hinson and his children  unless  it  was
arranged through their mother based on an allegation that  Hinson
had  sexually abused one of his daughters.  Judge Joannides found
that the allegations were unsubstantiated but imposed a probation
condition  that Hinson arrange contact with his children  through
A.L.  since  she  was the primary custodian of the  children  and
Hinson would be incarcerated.
          A  sentencing  court  has broad  authority  to  fashion
conditions  of probation so long as the conditions are reasonably
related  to the probationers rehabilitation or the protection  of
the  public.28   Hinson  asserts  that  the  probation  condition
regulating  Hinsons access to his dependents  is  not  reasonably
related  to  his  rehabilitation and violates his  constitutional
rights of privacy, liberty, and freedom of association.
           The State argues that such a restriction was justified
and points to the fact that Judge Joannides found that Hinson had
exposed himself to women on more than one occasion.
          A  persons  right to the care and custody of their  own
child  is a fundamental right recognized by both the federal  and
state  constitutions.29  The right is one of the most basic civil
liberties  and clearly falls within the protections of the  [D]ue
[P]rocess  [C]lause and should be accorded significant  weight.30
Probation  conditions  that  restrict constitutional  rights  are
subject to special scrutiny.
          As this Court stated in Thomas v. State:
          A  sentencing  judge has broad authority  to
          fashion  special  conditions  of  probation.
          However,  conditions of  probation  must  be
          reasonably related to the rehabilitation  of
          the  offender  and  the  protection  of  the
          public  and  ...  not unduly restrictive  of
          liberty.     Conditions    which    restrict
          constitutional rights are subject to special
          scrutiny    to    determine   whether    the
          restriction    serves    the    goals     of
          rehabilitation   of   the    offender    and
          protection of the public. [31]
          In  this case, it does not appear that the condition of
probation  limiting  Hinsons contact with  his  children  through
their   custodial  parent  was  reasonably  related  to   Hinsons
rehabilitation  or  the  protection of the  public.   Hinson  was
convicted  of  murdering  Shangin,  and  it  is  not  clear   how
regulating his contact with his children will protect the  public
          or ensure Hinsons rehabilitation.  The practical reality is that
Hinson  will be in custody long after his children turn eighteen,
and  any  contact  Hinson may have with them will  require  their
mothers  cooperation.  By the time Hinson is eligible for release
on parole or probation, his children will be adults.
          Because  the record does not support a conclusion  that
the  probation  condition protects the public or ensures  Hinsons
rehabilitation,  we  direct  the superior  court  to  vacate  the
condition.
     
          Conclusion
          We  AFFIRM  Hinsons  conviction  and  70-year  term  to
serve.   We  VACATE  the  40-year  parole  restriction  and   the
probation   condition  regulating  Hinsons   contact   with   his
dependents.
_______________________________
     1 AS 11.41.110(a)(2).

2    AS   11.41.100(a)(1)(A),   AS   11.41.110(a)(2),   and    AS
11.41.120(a)(1), respectively.

     3 See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003).

     4 Id. at 898.

     5 Stern v. State, 827 P.2d 442, 447 (Alaska App. 1992).

6 641 P.2d 823 (Alaska App. 1982).

7 Id. at 840.

     8  See  Gregory  v.  State, 689 P.2d 508, 509  (Alaska  App.
1984).

     9 649 P.2d 951 (Alaska App. 1982).

     10   Id. at 952-53.

     11   Id. at 953.

     12   Id.

     13   Id.

     14   Id. at 955.

     15    Id. at 956;  see also State v. Wortham, 537 P.2d 1117,
1120-21 (Alaska 1975).

     16   Faulkenberry, 649 P.2d at 957.

     17    See  McClain  v. State, 519 P.2d 811,  813-14  (Alaska
1974)  (an  appellate  court is to uphold a  sentencing  decision
unless the sentence is clearly mistaken).

     18   827 P.2d 442 (Alaska App. 1992).

     19   Id. at 450.

     20   157 P.3d 1053 (Alaska App. 2007).

     21   Id. at 1054.

     22   Id.

     23   Id.

     24    Nukapigak  v.  State, 562 P.2d 697,  701  n.2  (Alaska
1977), affd on rehg, 576 P.2d 982 (Alaska 1978).

     25   Nukapigak, 576 P.2d at 983.

     26   Id.

     27   Id.

28     Thomas  v.  State,  710  P.2d  1017,  1019  (Alaska   App.
1985);  see also Edison v. State, 709 P.2d 510, 511 (Alaska  App.
1985).

     29    Seth  D.  v.  State Dept. of Health and  Soc.  Servs.,
Office of Children Servs., 175 P.3d 1222, 1227 (Alaska 2008).

     30   Id. at 1227-28.

     31    Thomas, 710 P.2d at 1019 (quoting Roman v. State,  570
P.2d 1235, 1240 (Alaska 1977)) (citing Edison, 709 P.2d at 511).

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