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Diorec v. State (2/22/2013) ap-2386

Diorec v. State (2/22/2013) ap-2386

                                               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 



JOSE K. DIOREC III,                             ) 

                                                )         Court of Appeals No. A-11018 

                           Appellant,           )         Trial Court No. 1KE-10-571 CR 

                                                ) 

             v.                                 ) 

                                                )                  O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                           Appellee.            ) 

                                                )            No. 2386 - February 22, 2013 



                Appeal from the Superior Court, First Judicial District, 

                Ketchikan, William B. Carey, Judge. 



                Appearances: David D. Reineke, Assistant Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 

                Stephen R. West, District Attorney, Ketchikan, and Michael C. 

                Geraghty, Attorney General, Juneau, for the Appellee. 



                Before: Mannheimer, Chief Judge, and Bolger and Allard, 

                Judges. 



                BOLGER, Judge.
 

                MANNHEIMER, Chief Judge, concurring.
 



                Jose K. Diorec III was convicted of unlawful exploitation of a minor for 



surreptitiously filming his stepdaughter in her bedroom. He challenges several conditions 



on    his  probation,    including    requirements      that  he   submit    to  periodic    polygraph 


----------------------- Page 2-----------------------

examinations, that he have no contact with the victim or her family, that he complete sex 



offender   treatment   and   other   unspecified   programs,   that   he   advise   other   household 



members   of   his   criminal   history,   that   he   avoid   involvement   with   organizations   for 



children, that he have no "sexually explicit material," and that he not access the Internet 



without his probation officer's permission. We generally conclude that these conditions 



are sufficiently related to Diorec's rehabilitation and the protection of the public. But we 



conclude that the definition of "sexually explicit material" must be modified to provide 



constitutionally adequate notice of what is prohibited. 



        Background 



                Diorec bought a spy camera online and installed it in a smoke detector in 



the bedroom of his fourteen-year-old stepdaughter, J.F. He placed a video transmitter in 



the ceiling above the camera, and hid a receiver in the entertainment center in the living 



room. Diorec's wife and her two daughters discovered the camera when they plugged 



the receiver into the TV after watching a video. They also discovered an unlabeled VHS 



tape under the entertainment center that included a recording of J.F. in her room. When 



Diorec's wife confronted him, Diorec smashed the tape cassette, and threw the film from 



inside it into the woods. 



                The police executed a search warrant on the residence and seized VHS 



tapes from different parts of the house. Seven of the tapes contained footage of J.F. in 



underwear, naked, or masturbating. 



                During the police investigation, J.F. reported that Diorec had come into her 



room unannounced while she was masturbating approximately a year before. Diorec told 



J.F. that masturbation was normal, and the next day he gave her some lubricant. Shortly 



after that, J.F. found a sex toy that Diorec had left on her bed. 



                                                   2                                              2386
 


----------------------- Page 3-----------------------

                Diorec's wife told the police that Diorec had opened a Twitter account 



about six months before, using the profile of a sixteen-year-old boy. At sentencing, she 



told the court Diorec had used that account to contact J.F. and her friends. 



                The State charged Diorec with unlawful sexual exploitation of a minor, 



possession of child pornography, and tampering with physical evidence. Prior to trial, 



Diorec entered into a plea agreement and pleaded no contest to a single count of unlawful 



sexual exploitation of a minor. Diorec also admitted two aggravating factors: that his 

crime was committed against another household member,1  and that he had engaged in 



other similar conduct against the same victim.2 



                Diorec objected to several conditions of probation that were requested in 



the presentence report. The court modified some of these conditions and imposed others 



as proposed. These conditions are the main subject of this appeal. 



        Discussion 



                A probation condition must be "reasonably related to the rehabilitation of 



the   offender   and   the   protection   of the   public   and   must not be   unduly   restrictive   of 

liberty."3 Conditions that 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.4 



    1   AS 12.55.155(c)(18)(A).
 



    2   AS 12.55.155(c)(18)(B).
 



    3   Roman v. State , 570 P.2d 1235, 1240 (Alaska 1977).
 



    4   Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
 



                                                    3                                              2386
 


----------------------- Page 4-----------------------

                The polygraph examination requirement 



                General Condition No. 12 requires Diorec to "submit to periodic polygraph 



examinations   as   directed   by   a   probation   officer   of   the   Department   of   Corrections." 



Diorec argues that this requirement is not reasonably related to his rehabilitation or to the 



protection of the public. He argues that polygraph results are inadmissable in evidence, 



and that this requirement does not reasonably relate to any purpose of probation. 



                Alaska Statute 12.55.100(e)(1)(A) requires a defendant convicted of a sex 



offense     "as  a  condition    of  probation    ...  to  submit   to  regular   periodic    polygraph 



examinations." The legislature explained the purpose of this requirement in a letter of 



intent that accompanied this legislation: 



                For most offenders the hope for deterrence in Senate Bill 218 

                is provided by the increased probation periods and the use of 

                the polygraph while on probation or parole. The polygraph 

                will    help   to  provide     an  early    warning    system     during 

                supervision that will put the probation or parole officer on 

                notice   that   corrective   action   is   necessary   due   to   signs   of 

                deception or offending behavior. The use of the polygraph 

                should     prevent    at  least  some    future   victimization     from 

                occurring.5 



The legislature enacted this requirement based on committee testimony recommending 



periodic polygraph examinations as part of a comprehensive "containment approach" to 

the supervision of convicted sex offenders. 6 



                Based on this legislative history, we conclude that the polygraph testing 



specified in the statute was intended to promote the rehabilitation of sex offenders and 



    5   2006 Senate Journal 2211-12 (Feb.16, 2006). 



    6   See the Minutes of the joint meeting of the Senate State Affairs Committee and the 



Senate Judiciary Committee held on March 16, 2005. 



                                                    4                                                2386 


----------------------- Page 5-----------------------

to protect the public from further sexual offenses. We thus assume that when Diorec 



submits to polygraph examinations pursuant to his probation condition, the examinations 



will be limited to those purposes. 



                 Diorec also argues that the results of his polygraph examinations will not 



be    admissible      against    him   in   probation     revocation     proceedings       or  other    court 



proceedings.   Under   current   Alaska   law,   the   results   of   polygraph   examinations   are 



normally   not   admissible   in   court   proceedings,   even   when   the   parties   are   willing   to 

stipulate to the admission of the results.7 



                 We note that courts from other states are currently split on the issue of 



whether   a   probationer's   polygraph   results   are   admissible   in   a   probation   revocation 



               8 

proceeding.  But Diorec has not yet been required to take a polygraph examination, and 



the    State   has  never    asked    that   the  polygraph      results  be   admitted     into  evidence. 



Consequently, this issue is not squarely in front of us in the present case, and we express 



no opinion on the proper resolution of this issue. 



    7   Pulakis v. State , 476 P.2d 474, 479 (Alaska 1970); Haakanson v. State , 760 P.2d 



1030, 1034-35 (Alaska App. 1988). 



    8    Compare Hoeppner v. State , 918 N.E.2d 695, 700 (Ind. App. 2009), and  State v. 



Lumley , 977 P.2d 914, 919-21 (Kan. 1999) (both holding that the results of a polygraph 

examination      are   admissible    in  a  probation   revocation    proceeding     because    a  probation 

revocation hearing is not an adversarial criminal proceeding, but rather a civil matter with 

more flexible procedures), and State v. Hammond , 180 P.3d 137, 141-42 (Or. App. 2008) 

(holding that polygraph results are admissible in probation revocation proceedings because 

those proceedings are not governed by the rules of evidence), with Leonard v. State , 315 

S.W.3d 578, 580-81 (Tex. App. 2010), and Turner v. Commonwealth, 685 S.E.2d 665, 667- 

68 (Va. 2009), and Lane v. State , 762 So.2d 560, 561 (Fla. App. 2000) (all holding that 

polygraph   results   are   not   admissible    in  any   judicial   proceeding,   including   a   probation 

revocation hearing, because this evidence is not reliable). 



                                                      5                                                 2386
 


----------------------- Page 6-----------------------

                 Diorec   also   contends   that   the   requirement   of   polygraph   examinations 



violates his privilege against self-incrimination - because he has been ordered to submit 



to these examinations, and because it is foreseeable that, during the examinations, he will 



be asked to provide information that might tend to incriminate him, either with respect 

to   new   offenses   or   with   respect   to   other   violations   of   his   probation.9  But   the   State 



concedes   that   it   would   be   improper   to   interpret   Diorec's   condition   of   probation   as 



requiring him to incriminate himself. 



                 The     State   asserts   that   when    probationers      in  Diorec's     situation    are 



summoned         to  submit    to  polygraph      examinations,      the  Department       of  Corrections 



expressly advises the probationers that (1) they may assert their privilege against self- 



incrimination and refuse to answer any question if the requested information would tend 



to incriminate them, and (2) their probation will not be revoked for valid assertions of 



the privilege against self-incrimination. 



                 Given the State's representations to this Court, it appears that Diorec's 



court-ordered       polygraph      examinations      do   not   present    a  realistic   hazard    of  self- 

incrimination.10 If, in the future, a dispute arises as to whether Diorec has validly invoked 



his privilege against self-incrimination during a polygraph examination, the superior 



court can resolve the dispute at that time. 



                 The restriction on contact with the victim or her family 



                 Special Condition No. 1 states that Diorec "shall have no contact, direct or 



indirect, with the victim J.F. and her immediate family, except as may be allowed by the 



    9   See James v. State , 75 P.3d 1065, 1072 (Alaska App. 2003). 



    10  See Gyles v. State, 901 P.2d 1143, 1148-49 (Alaska App. 1995). 



                                                      6                                                  2386 


----------------------- Page 7-----------------------

court     in  [Diorec's     divorce    proceeding]."      Diorec    argues    that   this  restriction 



unconstitutionally restricts his access to his other daughter, N.T., who was seven years 



old at the time of sentencing. 



                At sentencing, Diorec's ex-wife told the court that the divorce court had 



ordered that N.T.'s counselor had to approve any contact between Diorec and N.T. 



Diorec was allowed to write letters to N.T., and the counselor was holding them until 



N.T. was ready for them. And N.T. was   writing in a journal that would be given to 



Diorec at some point in the future. 



                Conditions of probation restricting family associations must be subjected 

to special scrutiny because they implicate important constitutional rights.11 In this case, 



however,   Diorec   had   exploited   a   child   from   his   nuclear   family.   Therefore   it   was 



reasonable for the sentencing court to act to protect the other members of his family, 

including his biological daughter, N.T.12 



                Moreover,      this  restriction  is  narrowly    tailored   to  avoid   unnecessary 



interference     with   Diorec's   family   relationships.   Apparently,   the   divorce   court   had 



already issued a court order concerning N.T.'s custody and Diorec's contact with her. 



By deferring to the divorce court, Judge Carey avoided issuing a potentially conflicting 



order. In essense, Judge Carey simply ordered Diorec not to violate the orders of the 



    11   Hinson v. State , 199 P.3d 1166, 1174 (Alaska App. 2008). 



    12   See Nitz v. State, 745 P.2d 1379, 1381-82 (Alaska App. 1987) (upholding condition 



of probation restricting defendant who abused his daughter and other children from contact 

with his daughter); Sylvester v. State , Mem. Op. & J. No. 4460, 2001 WL 1173967, at *2 

(Alaska App. Oct. 3, 2001) (upholding condition restricting defendant's contact with three 

daughters unless defendant was in presence of another adult who knew the circumstances of 

his crime). 



                                                   7                                             2386
 


----------------------- Page 8-----------------------

divorce court. This condition adopts the least restriction on Diorec's family relationships 



by encompassing only a restriction that he was independently required to follow. 



                 The     requirement       that    Diorec     must     complete     "other 

                 Department-approved programs" 



                 Special Condition No. 6 requires Diorec to complete other programs at the 



direction of his probation officer: 



                 The   defendant   shall,   if   decided   to   be   appropriate   by   his 

                 probation officer and sex offender treatment provider, enter 

                 and successfully complete any other Department-approved 

                 programs,      including     but    not   limited    to  mental     health 

                 counseling,      cognitive     behavioral     therapy     and   domestic 

                 violence programming. 



Diorec argues that the broad designation of "any other Department-approved programs" 



makes this condition overbroad because it delegates too much discretion to Diorec's 



probation officer. 



                 However,   we   conclude   that   there   are   two   restrictions   on   the   probation 



officer's   discretion   that   are   relevant   to   our   construction   of   this   condition.   First,   the 



probation officer's authority for this type of condition is specifically defined and limited 



by statute. Alaska Statute 12.55.100(a)(5) authorizes conditions of probation that require 



the defendant, 



                 to   participate   in   or   comply   with   the   treatment   plan   of   an 

                 inpatient   or   outpatient   rehabilitation   program   specified   by 

                 either the court or the defendant's probation officer that is 

                 related    to  the  defendant's     offense    or   to  the  defendant's 

                 rehabilitation. 



                                                      8                                                2386
 


----------------------- Page 9-----------------------

Based on this statute, we assume that Diorec's probation officer may not require Diorec 



to participate in a treatment program unless the program is related to his offense or to his 



rehabilitation. 



                Second, the probation officer's authority is limited by the language of the 



condition   itself.   The   condition   lists   examples   of   the   types   of   Department-approved 



programs   that   Diorec   may   be   required   to   participate   in:   mental   health   counseling, 



cognitive behavioral therapy, and domestic violence programming. This list suggests that 

the programs Diorec will be required to participate in will be similar to these examples.13 



                Moreover, the presentence investigation suggested that additional programs 



may be important for Diorec's rehabilitation. In particular, the presentence report details 



prior incidents where Diorec engaged in misbehavior involving stalking and domestic 



violence against a former girlfriend. Diorec had also been terminated from a position at 



Ketchikan Youth Facility for making sexual advances towards teenage female inmates. 



And Diorec's misconduct with J.F. could be interpreted   to involve a long period of 



grooming for possible sexual abuse. We conclude that, when properly construed, this 



probation     condition     has  a   sufficient   relationship    to  Diorec's    crime    and   to  his 



rehabilitation. 



                The requirement that Diorec must advise other household 

                members of his criminal history 



                Special Condition No. 9 requires Diorec to "advise all members of the 



household in which he is residing of his criminal history, even when his residence is 



temporary."      This   condition    also  allows    Diorec's   probation     officer  to  discuss   the 



circumstances of Diorec's criminal history with other members of his household. 



    13  See Kenai v. Friends of Recreation Center, Inc ., 129 P.3d 452, 459 (Alaska 2006). 



                                                   9                                                2386 


----------------------- Page 10-----------------------

                 Diorec argues that this condition violates his constitutional rights to travel 



and association. He argues that less restrictive options should have been considered, such 



as prohibiting him from residing in a household with minor females. 



                 We conclude that part of Diorec's argument is based on a misreading of this 



condition. This condition does not limit Diorec's choice of residence or require him to 



reveal his criminal history to his landlord. This condition only applies to Diorec if he 



chooses to reside with other people. In that case, Diorec will be required to advise the 



other members of his household of his criminal history. 



                 This limited requirement is directly related to the protection of the public. 



Diorec's crime was committed against another household member. It is reasonable that 



future household members should be warned about his crime. This will enable household 



members to take appropriate precautions such as limiting visits from teenage girls. We 



conclude that this condition was well within the sentencing judge's discretion. 



                 The    restriction    on    involvement      with   organizations      for 

                 children 



                 Special Condition No. 11 requires Diorec to avoid involvement with certain 



organizations for children: 



                 The   defendant   shall   not   be   involved   in   any   organizations 

                 which     would    place   the  defendant     in  direct   contact   with 

                persons   under   sixteen   years   of   age,   i.e.,   Boy   Scouts,   Girl 

                 Scouts,   4-H,   Big   Brother   or   Big   Sister   program,   Sunday 

                 School teaching, etc. 



Diorec     argues    that  this  condition    is  vague   and   that   it  unnecessarily    prohibits    his 



involvement with organizations for male children (even though his victim was female). 



                                                     10                                               2386
 


----------------------- Page 11-----------------------

(There is a separate condition that restricts Diorec's contact with girls under the age of 



sixteen). 



                 We construe this condition using the same approach we applied to the 



condition   involving   other   treatment   programs.   The   organizations   that   are   listed   as 



examples are all organizations whose primary aim is to provide activities for children. 



The   restriction   thus   applies   only   to   similar   organizations:   It   prevents   Diorec   from 



coaching a middle school track team, but it does not prevent him from working in a 



supermarket. So construed, this condition does not improperly infringe any of Diorec's 



activities. 



                 Diorec's main argument is that this condition impermissibly restrains his 



contact   with   boys,   even   though   his   offense   was   committed   against   a   girl.   But   his 



argument does not provide any solid basis to limit the scope of this condition. The statute 



that authorizes this condition does not distinguish the gender of the victim - the statute 



simply allows the sentencing court to require a defendant convicted of a sexual offense 

against a minor to refrain from "communicating with children under 16 years of age."14 



And we have previously decided cases where sex offenders have committed offenses 

against both boys and girls.15 Diorec has not pointed to any assessment in the record 



establishing that this condition is not necessary to protect minors of both genders. 



    14  AS 12.55.100(e)(2). 



    15  Ferrick v. State , 217 P.3d 418, 420 (Alaska App. 2009) (reviewing a case where the 



defendant was convicted of possession of child pornography involving pictures of both boys 

and girls); Williams v. State, 928 P.2d 600, 605 (Alaska App. 1996) (reviewing convictions 

for sexual abuse of nine- and ten-year-old girls and defendant admitted previously molesting 

a three-year-old boy); James v. State , 754 P.2d 1336, 1338 (Alaska App. 1988) (reviewing 

convictions involving the attempted sexual assaults of a ten-year-old boy and a nine-year-old 

girl). 



                                                      11                                                2386
 


----------------------- Page 12-----------------------

              Moreover,     the  record  suggests  another   reason  that  Diorec  should   be 



restricted from organizations for boys. Diorec opened a Twitter account and pretended 



to be a teenage boy to establish a virtual relationship with J.F. and   her friends. This 



suggests that even if Diorec is primarily interested in teenage girls, he could use his 



relationship with teenage boys to gain access to teenage girls. We conclude that there is 



a sufficient relationship between this condition and the goal of protection of the public. 



               The restriction on sexually explicit material 



               Special Condition No. 13 prohibits Diorec from possessing any "sexually 



explicit material," which is defined to include "child erotica, sexually graphic anime, 



adult and/or child pornography, chat logs included." Special Condition No. 14 forbids 



Diorec from entering any establishment "whose primary business is the sale of sexually 



explicit material" and "any establishment where nude dancing or posing is part of the 



entertainment." Special Condition No. 15 requires him to submit to warrantless searches 



of his residence, any vehicle under his control, and any device under his control with 



Internet connectivity for the presence of "sexually explicit material." 



              At sentencing, Diorec objected to these conditions because they restricted 



his access to adult pornography and popular media containing sexually explicit material. 



Diorec argued the restrictions should be limited to prohibit sexually explicit material 



involving young girls. In response, the State argued that sex offenders use a variety of 



materials for stimulation, which can then lead to criminal misconduct. 



              Judge Carey concluded that these restrictions on possession of sexually 



explicit material were directly related to Diorec's crime and to his rehabilitation: 



              I find the fact that Mr. Diorec was essentially involved in the 

              production of pornography, or attempted pornography, and 

              the   fact  that  he  had  pornography    on  his  computer   was 



                                              12                                         2386
 


----------------------- Page 13-----------------------

                 referenced by [the prosecutor]. I find that ... convinces me 

                 that   the  overall   prohibition     of  pornography      contained     in 

                 number 13 and 14 . . . is appropriate under the circumstances. 

                 ... [A]nd I don't find that the possession of pornography is 

                 going to assist his rehabilitation in any way. 



We agree with Judge Carey's conclusion that a restriction on sexually explicit material 



is generally related to Diorec's offense and to the sentencing goals of rehabilitation and 



protection of the public. 



                 On appeal, Diorec repeats his argument that these conditions are overbroad 



because they prohibit him from possessing adult pornography, even though the victim 



of his crime was a child. But once again, we are hampered by the absence of any expert 



testimony   or   scientific   studies   on   this   topic.   Diorec   cites   no   cases   suggesting   that   a 



condition banning adult pornography is unnecessary for an offender convicted of a crime 

against a child. And several courts   have rejected this argument.16 We conclude that 



Diorec has not established that Judge Carey committed an abuse of discretion when he 



concluded that the restriction on adult material is necessary to protect the public and to 



promote Diorec's rehabilitation. 



                 Diorec      also   argues    that   the   term    "sexually      explicit   material"     is 



unconstitutionally        vague.     As    noted    above,     probation     conditions      may    restrict 



constitutional rights, but such restrictions are subject to special scrutiny to determine 



    16  See United States v. Brigham , 569 F.3d 220, 234 (5th Cir. 2009) (approving condition 



forbidding offender convicted of a sex crime involving children from possession of adult 

pornography); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir. 2007) (same); United 

States   v.   Beeman ,   280   Fed.   Appx.   616,   619  (9th  Cir.   2008)   (same   holding,   based   on 

testimony   that   adult   pornography   can   be   a   gateway   to   child   pornography);    Wilfong   v. 

Commonwealth, 175 S.W.3d 84, 99 (Ky. App. 2004) (stating that "it is a legitimate concern 

that exposure to sexually-arousing or sexually-orientated materials may contribute to sexual 

deviancy or the possibility of future sexually-abusive behavior"). 



                                                     13                                                2386
 


----------------------- Page 14-----------------------

whether they are necessary to promote the goals of rehabilitation and protection of the 

public.17 



                Diorec relies on a case where the Indiana   Court of Appeals held that a 



probation condition prohibiting possession of "any pornographic or sexually explicit 

materials"     was    unconstitutionally      vague.18    The   State   also   cites  cases   where    the 



Washington   Supreme   Court   and   the   Ninth   Circuit   Court   of   Appeals   have   held   that 



probation conditions prohibiting possession of pornography were invalid because the 

word "pornography" is unconstitutionally vague.19 But the State notes that the same 



courts   have   upheld   the   use   of   the   terms   "sexually   oriented   material"   and   "sexually 



explicit    material,"    particularly    when    those   terms    are  tied  to  a  specific    statutory 

definition.20 



                In   the   present   case,   Judge   Carey    defined    the  term   "sexually    explicit 



material" to include "pornography," a term that has been held to be unconstitutionally 



vague in cases cited by both Diorec and the State. This portion of Diorec's condition 



must be revised. On remand,   the superior court shall revise this condition so that it 



provides constitutionally adequate notice of the materials that Diorec is restricted from 



possessing. 



    17  Thomas, 710 P.2d at 1019. 



    18  Smith v. State, 779 N.E.2d 111, 117-18 (Ind. App. 2002). 



    19  See United States v. Guagliardo , 278 F.3d 868, 872 (9th Cir. 2002); State v. Bahl, 193 



P.3d 678, 687-88 (Wash. 2008); see also United States v. Loy , 237 F.3d 251, 254 (3d Cir. 

2001) (holding that the term "pornography" is unconstitutionally vague). 



    20  See Bahl, 193 P.3d at 688-89; see also  United States v. Simmons, 343 F.3d 72, 81-82 



(2d Cir. 2003) (holding that the defendant had notice of the prohibited conduct, despite the 

vague nature of this term, when he was convicted under a statute that contained a definition 

of pornography). 



                                                    14                                               2386
 


----------------------- Page 15-----------------------

                 We   note   that   the   statute   that   Diorec   violated   suggests   a   more   specific 



definition     that   could   be   used   in   this  type   of  probation     condition.     Alaska    Statute 



                                                                    21 

11.41.455(a) contains a specific list of sexual conduct,               which is incorporated in several 

other   statutes   defining   sexual   offenses.22       The   statute   penalizing   the   distribution   of 



indecent material to minors contains a similar list.23 The superior court may wish to refer 



to one of these statutory definitions when it revises Diorec's conditions of probation. 



                 The restriction on Internet access 



                 Special Condition No. 16 forbids Diorec from opening an Internet account 



or   accessing     the   Internet   from   another   person's   account   without   the   prior   written 



permission   of   his   probation   officer.   Diorec   argues   that   this   condition   is   overbroad 



    21   AS 11.41.455(a) provides: 



    A person commits the crime of unlawful exploitation of a minor if, in the state and 

    with the intent of producing a live performance, film, audio, video, electronic, or 

    electromagnetic recording, photograph, negative, slide, book, newspaper, magazine, 

    or other material that visually or aurally depicts the conduct listed in (1)-(7) of this 

    subsection, the person knowingly induces or employs a child under 18 years of age 

    to engage in, or photographs, films, records, or televises a child under 18 years of age 

    engaged in, the following actual or simulated conduct: 



         (1) sexual penetration; 

         (2) the lewd touching of another person's genitals, anus, or breast; 

         (3) the lewd touching by another person of the child's genitals, anus, or breast; 

         (4) masturbation; 

         (5) bestiality; 

         (6) the lewd exhibition of the child's genitals;  or 

         (7) sexual masochism or sadism. 



    22   See AS 11.41.436(a)(4); AS 11.41.452(a); AS 11.61.127(a). 



    23   See AS 11.61.128(a)(1)(A)-(F). 



                                                       15                                                 2386
 


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because he claims the Internet is not related to his present crime, his rehabilitation, or the 



protection of the public. 



                 Alaska Statute 12.55.100(e)(2)(A) allows a probation condition preventing 



offenders convicted of certain sexual offenses against children from "using or creating 



an Internet site." Alaska Statute 12.55.100(e)(2)(C) allows a condition preventing those 



offenders from "possessing or using a computer." 



                 In Dunder v. State , however, we recognized that such a condition may be 



unnecessarily restrictive: 



                 Under Roman v. State , parole and probation conditions "must 

                 be reasonably related to the rehabilitation of the offender and 

                 the protection of the public and must not be unduly restrictive 

                 of liberty." Dunder points out that it is difficult to function in 

                 modern society without access to the technology that Judge 

                 Smith's   order   prohibits   him   from   possessing.   He   further 

                 suggests that, by the time he is released from his lengthy term 

                 of   imprisonment,   it   will   likely   be   even   more   difficult   to 

                 function in society "without the use of at least one electronic 

                 device."   Given   the   rapid   advance   of   technology        and  the 

                 length of Dunder's sentence of imprisonment, we agree that 

                 some   degree   of   access   to   these   devices   will   probably   be 

                 necessary to Dunder's reintegration into society.24 



We concluded that a condition prohibiting Internet access could be reasonable only if the 



condition allows a probation officer to allow necessary Internet use under appropriate 



conditions. Many courts have approved similar conditions when the Internet ban can be 

relaxed or modified by a probation officer.25 



    24  Dunder v. State , Mem. Op. & J. No. 5487, 2009 WL 1607917, at *1 (Alaska App. 



June 10, 2009) (footnotes omitted). 



    25  See United States v. Crandon , 173 F.3d 122, 128 (3d Cir. 1999);  United States v. 



Knight , 86 Fed. Appx. 2, 4 (5th Cir. 2003); United States v. Muhlenbruch, 682 F.3d 1096, 



                                                     16                                                 2386 


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              In this case, Judge Carey found that this condition was reasonable as long 



as Diorec's probation officer exercises appropriate discretion. The record supports Judge 



Carey's decision. Seven months before this offense, Diorec created the online profile of 



a sixteen-year-old boy and contacted J.F. and her friends with that profile. He also had 



possession of both adult and child pornography on his computer. It was reasonable for 



the court to conclude that supervision of Diorec's access to the Internet could promote 



his rehabilitation and protect the public, and that Diorec's probation officer will allow 



any reasonable Internet use that is important for his rehabilitation. 



       Conclusion 



              Diorec also argues that his sentence is excessive. He concedes that this 



court does not have jurisdiction to review his sentence, and he requests that this issue 



should be referred to the Alaska Supreme Court under Alaska Appellate Rule 215(k). We 



accordingly REFER this issue to the Alaska Supreme Court for discretionary review. 



              Following     review   by  the  Alaska  Supreme    Court,   this  case  shall  be 



REMANDED to the superior court for modification of Special Condition No. 13 as set 



forth above. In all other respects, the superior court's judgment is AFFIRMED. 



1104-05 (8th Cir. 2012); United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005); 

United States v. Walser, 275 F.3d 981, 987-88 (10th Cir. 2001); United States v. Zinn, 321 

F.3d 1084, 1092-93 (11th Cir. 2003);  United States v. Love, 593 F.3d 1, 11-12 (D.C. Cir. 

2010). 



                                              17                                         2386 


----------------------- Page 18-----------------------

Judge MANNHEIMER, concurring. 



               I write separately to explain in more detail why I agree with my colleagues 



that the phrase "sexually explicit material" (which is found in Conditions 13, 14, and 15 



of Diorec's special conditions of probation) is constitutionally flawed. 



               Special   Condition   13   prohibits   Diorec   from   possessing   "any   sexually 



explicit material" - a phrase which, according to Condition 13, 



               includes but is not limited to child erotica, sexually graphic 

               anime [and] adult ... pornography[.] 



Condition 13 further states that this prohibition applies to (1) books, magazines, and any 



other printed matter, as well as (2) movies and videos, and (3) any electronic device that 



can hold sexually explicit material in visual or aural form - for example, an e-reader. 



               Special Condition 14 prohibits Diorec from entering "any establishment 



whose     primary   business   is  the  sale  of  sexually  explicit  material".   And     Special 



Condition 15 requires Diorec to "submit to a warrantless, nonconsensual search of his 



residence or any vehicle under his control, [as well as any] personal computer and/or any 



item    which   has   Internet   connectivity   (i.e.,  X-Box,   cell  phone,    [P]alm   [P]ilots, 



Blackberries,     etc.)  by  a  Probation   Officer   for  the  presence   of  sexually   explicit 

material." 26 



               Diorec does not challenge the superior court's authority to prohibit him 



from    possessing    child   erotica,  but  he   does   challenge   the  prohibition    on  adult 



pornography and other undefined types of "sexually explicit material". 



    26  The names "X-Box", "Palm Pilot", and "Blackberry" are all registered trademarks. 



                                                18                                            2386 


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                Diorec notes that Condition 13 declares that the phrase "sexually explicit 



material"  includes adult pornography, but is not limited to adult pornography.                     It is 



therefore reasonable to infer that the superior court intended the phrase "sexually explicit 



material" to encompass other, undefined types of printed and video material which, 



although not pornographic, are nevertheless "sexually explicit". 



                This provision raises two problems under the First Amendment. 



                The first problem is vagueness.  If "sexually explicit material" includes not 



only pornography but also other "sexually explicit" things, there is a substantial danger 



that neither Diorec nor his probation officer will have a definite idea of what Probation 



Condition 13 covers. 



                The   State   concedes   that   several   courts   from   around   the   country   have 



concluded that, in this context, the term "pornography" is unconstitutionally vague. 



However, somewhat paradoxically, the State asserts that the phrase "sexually explicit 



material" is not unconstitutionally vague. 



                The   State's   assertion   is   paradoxical   because,   as   I   have   just   explained, 



Condition 13 declares that "pornography" is a smaller subset of the broader category of 



"sexually explicit material". If the term "pornography" is unconstitutionally vague, then 



it is difficult to see how the phrase "sexually explicit material" could be free of the same 



improper vagueness. 



                The paradox is resolved when one examines the two court decisions that 



the State relies on:    United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), and State v. 



Bahl , 193 P.3d 678 (Wash. 2008).  In both cases, the courts upheld the phrase "sexually 



explicit" because that phrase did not stand alone; rather, it was explicitly linked to a more 



specific and detailed statutory definition. 



                                                    19                                              2386
 


----------------------- Page 20-----------------------

                 In Rearden , the sentencing court prohibited the defendant from possessing 



any materials that depicted "sexually explicit conduct as defined in 18 U.S.C.  2256(2)". 



349 F.3d at 620.  The federal statute in question, 18 U.S.C.  2256(2), defines "sexually 



explicit     conduct"     as   "(i)   graphic    sexual    intercourse,     including     genital-genital, 



oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite 



sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area 



of   any   person   is   exhibited;   (ii)   graphic   or   lascivious  simulated;   (I)   bestiality;   (II) 



masturbation;       or  (III)  sadistic   or  masochistic     abuse;    or  (iii)  graphic   or  simulated 



lascivious exhibition of the genitals or pubic area of any person". 



                 In Bahl , the Washington Supreme Court engaged in a lengthy discussion 



whether the terms "pornography" and "sexually explicit" were sufficiently definite to 



survive a vagueness challenge.           193 P.3d at 686-89.       The Washington court held that a 



probation   condition   prohibiting   the   defendant   from   possessing   "pornography"   was 



unconstitutionally vague.         Id. at 686-88.     The court upheld a probation condition that 



referred to "sexually explicit material", but not in the context of prohibiting the defendant 



from possessing printed or video material.              Rather, the probation condition in question 



barred the defendant from "[frequenting] establishments whose primary business pertains 



to sexually explicit or erotic material."  Id. at 688-89.  Moreover, the Washington court 



noted that Washington had a statutory definition of "sexually explicit material":  RCW 



9.68.130(1) defines "sexually explicit material" as: 



                 any pictorial material displaying direct physical stimulation 

                 of unclothed genitals, masturbation, sodomy (i.e., bestiality 

                 or   oral   or   anal   intercourse),   flagellation   or   torture   in   the 

                 context of a sexual relationship, or emphasizing the depiction 

                 of adult human genitals: PROVIDED HOWEVER, That works 



                                                     20                                                2386
 


----------------------- Page 21-----------------------

              of art or of anthropological significance shall not be deemed 

              to be within the foregoing definition. 



Quoted in Bahl , 193 P.3d at 689. 



              In Diorec's case, the phrase "sexually explicit material" is not linked to any 



such limiting or clarifying statutory definition.   In fact, according to the wording of 



Special Condition 13, the phrase "sexually explicit material" is broader than the term 



"pornography", because this phrase "includes but is not limited to ... pornography".  It 



therefore appears that the phrase "sexually explicit material", as employed in Diorec's 



conditions of probation, suffers from improper vagueness. 



              The second problem is overbreadth. If "sexually explicit material" includes 



not only pornography but also any other printed or video matter that explicitly describes 



or depicts sexual conduct, then there is a significant possibility that Condition 13 would 



cover a large proportion of the books and magazines published in this country, as well 



as a large proportion of the movies, television shows, and video games produced in this 



country.   If that is the case, then a prohibition of this scope seemingly would not be 



narrowly tailored to Diorec's rehabilitation and/or the protection of the public. 



              For these reasons, I agree with my colleagues that Special Conditions 13, 



14, and 15 - all of which incorporate the phrase "sexually explicit material" - must 



be rewritten. 



                                             21                                        2386
 

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