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Glasgow v. State (8/21/2015) ap-2469

Glasgow v. State (8/21/2015) ap-2469

                                                 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 @ akcourts.us
  



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MICHAEL H. GLASGOW,  

                                                               Court of Appeals No. A-11270  

                                 Appellant,                   Trial Court No. 3HO-11-480 CR  



                         v.  

                                                                         O P I N I O N  

STATE OF ALASKA,  



                                 Appellee.                      No. 2469 - August 21, 2015  



                    peal from the Superior Court, Third Judicial District, Homer,  

                 Ap                                             

                 Charles T. Huguelet, Judge.  



                 Appearances:   Megan R. Webb, Assistant Public Defender, and  

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

                 Nancy R. Simel, Assistant Attorney General, Office of Special  

                                      

                 Prosecutions     and    Appeals,     Anchorage,      and    Michael     C.  

                 Geraghty, Attorney General, Juneau, for the Appellee.  



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

                                                                             

                 Judges.  



                 Judge KOSSLER.  



                 A  jury  convicted  Michael  H.  Glasgow  of  third-degree  assault  after  he  



pointed a knife at Timothy Whitehead following a confrontation about Whitehead's  



unleashed dogs.  


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

                    At trial, Glasgow requested jury instructions on the City of Homer's animal  



control laws and the Alaska statutes that authorize the killing, in certain circumstances,  

                                                              



of an "at large" dog.  We conclude that the trial court properly denied Glasgow's request  

                                 



for these instructions.  



                    The trial court also imposed a special condition of probation that prohibited  

                                                                            



Glasgow from applying for or possessing a medical marijuana card.  We conclude that  

                                                                                



the condition is overbroad, and we accordingly vacate the condition.  



          Background facts  



                    In August 2011, Timothy Whitehead and his son were walking on a bike  

                                               



path in Homer with the family's dogs.  Two of the dogs were not leashed.  Glasgow was  

                                                                       



on  his  bike,  riding  toward  Whitehead.    One  of  the  dogs  approached  Glasgow,  and  



Glasgow pulled out a knife and began jabbing it at the dog.  Glasgow then continued  

                                                                            



riding down the path and yelled at Whitehead to put his dogs on a leash.  Whitehead  

           



apologized and said he would leash the dogs.  



                    After Glasgow rode past Whitehead and his son, Whitehead yelled to his  

                                                                                        



son something along the lines of:  "Just shut up, don't worry.  Some people do this."  

                        



Glasgow yelled back, "You want some of this?  You want to go?," to which Whitehead  

                                                                        



responded, "Shut up.  I'm talking to my kid."  Glasgow then stopped, got off his bike,  

                                                     



and walked back to Whitehead, continuing to yell at him to put his dogs on a leash.  

                                                                                                                  



Whitehead and his son both testified at the later trial that Glasgow had a knife still in his  

                                                                 



hand, and they both testified that they thought Glasgow was going to stab Whitehead.  



Instead, Glasgow walked back to his bike and rode away.  



                    Glasgow was  indicted for third-degree assault.  At his trial, Glasgow's  

                                           



defense  was  that  he  did  not  have  the  knife  in  his  hand  when  he  walked  back  to  

                            



Whitehead.  The jury rejected this defense and convicted him of third-degree assault.  



                                                              - 2 -                                                         2469
  


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

           Why we conclude that the trial court properly denied Glasgow's proposed  

          jury instructions  



                    At the start of Glasgow's trial, defense counsel asked the court to instruct  

                                                                   



the jury on various Homer code provisions regarding the control of animals, as well as  

                                                                                                                   



state statutes authorizing a person in certain circumstances to kill a dog that is running  

                                                                                                      



            1  

at large.                                                                     

               Defense counsel argued that Whitehead's dogs "were frightening [his] client"  



and  that  Whitehead's  "allowing  his  dogs  to  roam  free"  constituted  "contributory  



                                           

behavior" that led Glasgow to initially pull out his knife.  The court declined to instruct  



the jury on these laws.  



                    Glasgow claims on appeal that the trial court's refusal to give his proposed  

                                                            



jury instructions prevented him from fully presenting his defense, in violation of his right  

                                                                                                 



to due process.  



                    While Glasgow is correct that a defendant has a due process right to present  

                               

his case,2  

                      

               this right does not entitle him to jury instructions on matters that do not relate  

to any legally cognizable defense or any disputed facts in the case.3  

                                                                                                      A trial court does  



                                          

not abuse its discretion by declining to instruct the jury on statutes or other laws not  

applicable to the controversy in question.4  



                                                                            

                    It was undisputed at trial that two of Whitehead's dogs were not leashed.  



                                             

The  statutes  and  municipal  laws  that  Glasgow  cited  in  support  of  his  proposed  



                                                                                                                   

instructions specify how animals are to be controlled and authorize a person in certain  



     1    AS 03.55.010-.030; Homer City Code  20.04.020, 20.08.010(a), 20.08.030(c).  



     2    Smithart v. State, 988 P.2d 583, 586, 588 (Alaska 1999).  



     3    Ostlund v. State, 51 P.3d 938, 942-43 (Alaska App. 2002).  



     4    See, e.g., Shane v. Rhines, 672 P.2d 895, 901 (Alaska 1983) ("The trial court did not  



abuse  its  discretion   by   refusing  to  instruct  the  jury  on  statutes  not  applicable  to  the  

controversy.").  



                                                             - 3 -                                                        2469
  


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

                                                                            5  

circumstances to kill a dog that is running at large.   But these laws do not authorize a  



person to attack the dog owner when he is attempting to restrain his animals.  



                    In  this  case,  Glasgow  and  Whitehead  had  already  passed  each  other,  



heading in opposite directions on the bike path, when Glasgow stopped, got off his bike,  

                                                                       



and  walked back  to Whitehead with  a knife in his hand.   Glasgow  did not seek  an  

                                                                                                                     



instruction  on  self-defense.               And  to  the  extent  that  Glasgow  sought  to  argue  that  

                                                                                                            



Whitehead was somehow at fault for failing to restrain his dogs, this would not be a  

                                                     

justification for an assault. 6  

                                                                                             

                                          The trial court's refusal to instruct the jury on this issue was  



correct and did not infringe Glasgow's right to present a defense.  



           Why we vacate the special condition of probation  



                    The author of the presentence report recommended that the court impose  



various conditions of probation, including that Glasgow "not possess, apply for, or obtain  



a medical marijuana card."  In response, Glasgow filed a pro se pleading in which he  



provided  information  about  his  rheumatoid  arthritis,  hypoglycemia,  and  anxiety.  



Glasgow stated that he had been prescribed medical cannabis for these conditions and  

                                                  



was a licensed medical cannabis patient in California.  



                    At sentencing, the court ordered Glasgow to participate in both a substance  

                          



abuse evaluation and a mental health evaluation as part of his probation.  The court also  

                                                                                       



imposed the special condition of probation that prohibited Glasgow from possessing,  



applying for, or obtaining a medical marijuana card. In support of this special condition,  

                                                                               



the judge stated, "I think what we're dealing with is somewhat related to a mental illness  

                                                                   



     5    See AS 03.55.010-.030; Homer City Code  20.04.020, 20.08.010(a), 20.08.030(c).   



     6    See Wren v. State, 577 P.2d 235, 238-39 (Alaska 1978);  Winters v. State, 1990 WL  



 10513257, at *1 (Alaska App. Mar. 14, 1990) (unpublished).  



                                                             - 4 -                                                        2469
  


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

and possibly related to marijuana use, I don't know."                                   The judge stated "to fully evaluate  



Mr.  Glasgow   I  think  he  needs  to  be  off  the  marijuana,  and  a  prescription  from  a  



California doctor under these circumstances isn't going to cut it."                                          The judge continued:  



                      [At] some point if Alaska license[d] MDs and psychiatrists all      

                      agree that that's the only way to treat [Mr. Glasgow,] then I     

                      could  reconsider   it,  but  I'm  going  to  want  him  clean  and  

                      sober and fully evaluated.  



                      On  appeal,  Glasgow  challenges  this  special  condition  of  probation.  



Glasgow  contends  that  the  condition  is  not  narrowly  tailored  to  avoid  unnecessary  



interference  with  his  constitutional  right  to  privacy  in  making  independent  medical  

                                                                                                            



decisions in consultation with a physician.  



                      The State argues that Glasgow failed to preserve this issue for appellate  



review. The State notes that Glasgow's attorney never objected to the condition and that  

               



Glasgow did not have co-counsel status that would allow him to file his pro se pleading.  

                                                                                               



But Glasgow's pro se pleading contained both an offer of proof and an objection to the  



special condition of probation, which was then ruled upon by the court.  Despite the  

                                   



procedural irregularity of Glasgow's pleading and the court's consideration of it, we  

                    

conclude that the issue is preserved for our review.7  



                      A condition of probation must reasonably relate to the rehabilitation of the  



                                                                                                      

offender and the protection of the public, while not unduly restricting the offender's  

liberty.8  

               A probation condition that infringes a constitutional right of a defendant is  



      7    Cf.  Romero  v.  State,   792  P.2d  679,  680  (Alaska  App.  1990)  (declining  to  find  



forfeiture where the trial court considered the claim on its merits despite its untimeliness);     

Abruska v. State , 705 P.2d 1261, 1271-72 (Alaska App. 1985) (same; recognizing a trial  

court's discretion to hear untimely motions).  



      8    Simants v. State, 329 P.3d 1033, 1038 (Alaska App. 2014); Diorec v. State , 295 P.3d   



409, 412 (Alaska App. 2013).  



                                                                    - 5 -                                                               2469
  


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

reviewed with special scrutiny:  the court must ensure that the condition is narrowly  



tailored to avoid unnecessary interference with the constitutional right at issue, and the  

                                                                             



court must affirmatively consider, and have good reason for rejecting, any less restrictive  

                                                                                                       

alternatives.9  



                    The  right  to  make  independent  medical  choices  in  consultation  with  a  



                                                                                10  

                                                                                            

physician is afforded constitutional privacy protection.                            That right applies to those who  



                                                                                                                          11  

                                                                                                 

participate or intend to participate in Alaska's medical marijuana registry program.                                          A  



                                                                                                                   

person may apply for a medical marijuana card when, in the context of a bona fide  



                                                                      

physician-patient relationship, a physician has diagnosed the person with a debilitating  



medical  condition  for  which  the  medical  use  of  marijuana  might  be  beneficial  



               12  

treatment.                        

                    Against  this  background,  it  is  clear  that  the  superior  court  prohibiting  



Glasgow  from  applying  for  or  possessing  a  marijuana  card  directly  impacts  his  



                                                                                                                      

constitutional  right  to  make  independent  medical  choices  in  consultation  with  a  



physician.  



                    There may be cases where a trial court can validly restrict a defendant from  

                                                                     



the medical use of marijuana while on probation.  For example, in People v. Leal , a  



probation condition prohibiting the defendant's possession of marijuana authorized by  



a medical marijuana card was upheld where the defendant had previously used his card  



     9    See Simants, 329 P.3d at 1038-39; Dawson v. State , 894 P.2d 672, 680-81 (Alaska  



App. 1995).  



     10   Huffman v. State , 204 P.3d 339, 346 (Alaska 2009) ("[T]he right to make decisions   



about  medical  treatments  for  oneself  ...  is  a  fundamental  liberty  and  privacy  right  in  

Alaska.").  



     11   See Rollins v. Ulmer, 15 P.3d 749, 752-54 (Alaska 2001).  



     12   See AS 17.37.010(c)(1).  



                                                             - 6 -                                                        2469
  


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

                                                             13  

as "a front for illegal sales of marijuana."                     But here, the court articulated only a single  



concern  that  could  potentially  justify  a  restriction  on  Glasgow's  medical   use  of  



marijuana:  the court's desire to have Glasgow "clean and sober" when he was evaluated  



for substance abuse and mental health issues (as was required by other conditions of  



Glasgow's  probation).    Even  if  this  concern  might  conceivably  justify  a  temporary  

                                              



suspension of Glasgow's use of medical marijuana - an issue we do not decide - this  

                                                                                                  



concern does not justify a prohibition lasting the entire three-year term of Glasgow's  

                                                                                    



probation.  



                    As noted above, special scrutiny is applied to probation conditions that  



implicate constitutional rights to  ensure that they are narrowly tailored and that less  

                                                   



restrictive alternatives have been affirmatively considered and rejected.  The broad scope  

                                          



of the condition here is not narrowly tailored to the superior court's stated purpose, nor  

                                                                                                     



does it appear that the superior court affirmatively considered less restrictive alternatives  



to the categorical prohibition it imposed here.  If the superior court wishes to impose a  

                                                                                                    



probation condition restricting Glasgow from a medical marijuana card, then it must first  

                                                                                                                



apply the analysis we have outlined above.  



          Conclusion  



                    We  AFFIRM  Glasgow's  conviction  for  third-degree  assault,  but  we  



VACATE the special condition of probation that prohibits Glasgow from applying for  

                                                                                        



or obtaining a medical marijuana card.  



     13   People v. Leal , 210 Cal.App.4th 829, 149 Cal.Rprtr.3d 9, 21 (Cal. App. 2012).  



                                                            - 7 -                                                        2469
  

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