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

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


         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 @



                                                               Court of Appeals No. A-11270  

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


                                                                         O P I N I O N  


                                 Appellee.                      No. 2469 - August 21, 2015  

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


                 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,  



                 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.  

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                    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

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           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  



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  


                                                             - 3 -                                                        2469

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


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  


               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

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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  



                    The  right  to  make  independent  medical  choices  in  consultation  with  a  



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



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  



                    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  


                    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  


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

     12   See AS 17.37.010(c)(1).  

                                                             - 6 -                                                        2469

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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  



                    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.  


                    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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