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Jose Alfredo Galindo v State of Alaska (1/29/2021) ap-2690

Jose Alfredo Galindo v State of Alaska (1/29/2021) ap-2690


            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-12870  

                                                Appellant,                             Trial Court No. 4FA-13-03428 CR  


                                                                                                         O P I N I O N  


                                                Appellee.                                  No. 2690 - January 29, 2021  


                        Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                        Fairbanks, Paul R. Lyle, Judge.  

                        Appearances: Sharon Barr, Assistant Public Defender, and Beth  


                        Goldstein,           Acting         Public        Defender,           Anchorage,             for      the  

                        Appellant.   Diane L. Wendlandt, Assistant Attorney General,  


                        Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,  


                        Attorney General, Juneau, for the Appellee.  

                        Before:   Allard, Chief Judge, and Wollenberg and Harbison,  



                        Judge WOLLENBERG.  

                        Following a jury trial, Jose Alfredo Galindo was convicted of first-degree                                     

sexual assault for penetrating J.C.'s vagina with a plastic bottle without her consent and                                                           

second-degree criminal trespass for unlawfully entering a building after the incident in                                                                

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


an attempt to avoid the police.                                                                  Galindo now appeals his conviction and sentence, and                                                                                                        

he challenges several conditions of his probation.                                                                      

                     Why we conclude that there was sufficient evidence to support Galindo's         

                     conviction for first-degree sexual assault                                                             

                                         Galindo first argues that there was insufficient evidence presented at trial                                                                                                                                       

to convict himof                                   first-degree sexual assault. To                                                              prove this charge, the State was required  

to establish that (1) Galindo knowingly engaged in an act of sexual penetration of J.C.,                                                                                                                                                                   

(2)   that   the   sexual   penetration   was   "without   consent,"   as   that   phrase   is   defined   in  


AS 11.41.470(8)(A), and (3) that Galindo recklessly disregarded J.C.'s lack of consent.                                                                                                                                                                                    


                                         On appeal, Galindo asserts that the State failed to prove that the penetration  


was  without  J.C.'s  consent  and  that  Galindo  recklessly  disregarded  J.C.'s  lack  of  


consent. Galindo and J.C. had a prior dating and sexual relationship, and at trial, Galindo  


argued that the act of sexual penetration was consensual.  Galindo argues that J.C. was  


not a credible witness and that her statements were either inconsistent or not believable.  


                                         But when this Court reviews the sufficiency of the evidence to support a  


conviction,  we  do  not  weigh  the  credibility  of  witnesses,  as  witness  credibility  is  



                                                                                                                 Rather, we view the evidence, and all reasonable  

exclusively a question for the jury. 

           1        AS 11.41.410(a)(1) and AS 11.46.330(a)(1), respectively.  

          2         AS 11.41.410(a)(1); AS 11.41.470(8)(A) (providing that an act of sexual penetration   

is "without consent" if "a person[,] with or without resisting, is coerced by the use of force                                                                                                                                                           

against a person or property, or by the express or implied threat of death, imminent physical                                                                                                   

injury, or kidnapping"); see also Inga v. State                                                                                    , 440 P.3d 345, 349 (Alaska App. 2019) ("[T]o  

establish that sexual activity occurred without consent, the State must prove that the victim   

was not willing to engage in the sexual activity, and that the victim was coerced by force or                                                                                                                                                     

by the threat of force.").  

          3         Morrell v. State , 216 P.3d 574, 576 (Alaska App. 2009) (citing Ratliff v. State , 798  



                                                                                                                             - 2 -                                                                                                                         2690

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

inferences from that evidence, in the light most favorable to upholding the jury's verdict.                                                                             

We then ask whether a reasonable juror could have concluded that the State had proved                                                                    


its case beyond a reasonable doubt.                                    


                          Viewing  the  evidence,  including  J.C.'s  testimony,  in  the  light  most  


favorable to upholding the jury's verdict, we conclude that there was sufficient evidence  


to support Galindo's conviction.  J.C. gave a detailed description of the alleged assault.  


She testified that Galindo forced her down on a bed and positioned himself on top of her  


while he inserted something cold into her vagina.  According to J.C., she jerked herself  


up and looked down to discover that Galindo had shoved a plastic bottle into her vagina.  


J.C. started yelling at Galindo, threw the bottle across the room, jumped off the bed, and  


grabbed her clothes.  J.C. then left the room and ran down the stairs, screaming for help.  


                          A third-party witness who was sleeping downstairs testified that he awoke  


to J.C.'s screaming and her footsteps on the stairs.  When J.C. got downstairs, she was  


agitated and distressed and stated that Galindo had "raped her with a bottle." J.C. called  


911, and when the police responded, she showed them the bottle that Galindo had used  


to penetrate her.   Later, in multiple calls to J.C. from the jail, Galindo admitted to  


assaulting J.C., repeatedly apologized to her, and tried to convince her not to testify.  


                          Giventhisevidence, areasonablejuror could concludebeyondareasonable  


doubt  that  Galindo  penetrated  J.C.  without  consent,  and  that  Galindo  recklessly  


disregarded J.C.'s lack of consent.  We therefore reject Galindo's claim of insufficient  


evidence, and we affirm Galindo's conviction.  

      3      (...continued)  

P.2d 1288, 1291 (Alaska App. 1990)); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App.  


      4      Iyapana v. State , 284 P.3d 841, 848-49 (Alaska App. 2012);                                                      Johnson v. State , 188  

P.3d 700, 702 (Alaska App. 2008).  

                                                                              -  3 -                                                                         2690

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

              Why we reject Galindo's excessive sentence claim                                       

                          As a first felony offender, Galindo was subject to a presumptive sentence                                                      


of 20 to 30 years for his first-degree sexual assault conviction.                                                                                              

                                                                                                                             Because the jury found  


an aggravating factor -that Galindo had committed a crime against a person with whom  



                                                                                                        - the court had the authority to  

he had a dating relationship or sexual relationship 



sentence Galindo up to the maximum sentence of 99 years.                                                              Galindo faced a maximum  



sentence of 10 days for the second-degree criminal trespass conviction. 


                          The court sentenced Galindo to 35 years with 7 years suspended for the  


first-degree sexual assault and 10 days for the second-degree criminal trespass, with the  


sentences to be served concurrently - a composite sentence of 35 years with 7 years  


suspended (28 years to serve).  


                          Galindo now appeals his sentence as excessive.  Galindo challenges the  


superior court's findings that he had a low likelihood of rehabilitation and needed a  


significant period of isolation based on his seven prior misdemeanor domestic violence  



convictions and multiple probation violations and prison disciplinary infractions.   He  


argues  that  a  shorter  sentence  would  have  adequately  addressed  deterrence  and  



community condemnation.                                  Galindo also contends that the court should not have given  


any weight to the aggravating factor.  

       5     AS 12.55.125(i)(1)(A)(ii).  

       6     AS 12.55.155(c)(18)(D).  

       7     AS 12.55.125(i)(1).  

       8     Former AS 12.55.135(b) (2017).  

       9     See AS 12.55.005.  

       10    See id.  

                                                                                - 4 -                                                                            2690

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

                        But the sentencing judge bears primary responsibility for determining the                                                        


priority and relationship of the various sentencing objectives in a given case.                                                                       The  


sentencing judge also has discretion to determine the weight to give an aggravating or  



                                    We will not disturb a judge's sentencing decision unless it is clearly  

mitigating factor. 



                        At the time of the offense in this case, Galindo was forty-three years old.  


The court found that, although he did not have any prior felony convictions, Galindo had  


"a disturbing criminal history" that was "marked primarily by domestic violence against  


intimate partners."   In particular, Galindo had four prior convictions for violating a  


protective order and three prior convictions for fourth-degree assault, including one  


against J.C.  The court also noted that Galindo had multiple prior probation violations,  


and was on probation and conditions of release at the time he committed the offense in  


this case.   As a result, the court found that Galindo was "a persistent threat to the  



                        The  court  engaged  in  a  thorough  analysis  of  the  Chaney  criteria,  and  


ultimately determined that the sentence imposed was necessary for public safety and to  



reaffirm societal norms and the seriousness of the offense. 

      11    Asitonia v. State , 508 P.2d 1023, 1026 (Alaska 1973).

      12    Machado v. State , 797 P.2d 677, 689 (Alaska App. 1990).

      13    Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998) (citing Nicholas v. State                                                         , 477

P.2d 447, 448-49 (Alaska 1970)).  

      14    See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005.  

                                                                           -  5 -                                                                     2690

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

                       When we review an excessive sentence claim, we independently examine                                          


the   record   to   determine   whether   the   sentence   is   clearly   mistaken.                                                 

                                                                                                                          This  standard  


contemplates that "reasonable judges, confronted with identical facts, can and will differ  


on what constitutes an appropriate sentence" and that a reviewing court will only modify  




a sentence if it falls outside "a permissible range of reasonable sentences." 


                       While some judges may have imposed a lower sentence, we cannot say that  


the relative weight that the court ascribed to each  of the sentencing criteria, or the  


ultimate sentence imposed by the court, was clearly mistaken.  


            Why we reverse the portion of Special Condition of Probation No. 5 that  


           authorizes residential treatment if recommended  


                       Special Condition of Probation No. 5 requires Galindo, inter alia, to enroll  


in  a  residential  mental  health  or  substance  abuse  program,  if  such  a  program  is  


"determined  [to  be]  necessary  by  an  appropriate  mental  health  or  substance  abuse  


professional," and to stay in the residential program "for a length of time determined  


necessary by the appropriate professionals."   Galindo argues that this portion of the  


condition is illegal because it fails to set a maximum term for residential treatment.  We  


agree with Galindo that the failure to set an upper limit for the residential treatment  

      15   McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).  

      16   Erickson  v.  State,  950  P.2d  580,  586  (Alaska  App.   1997)  (citations  and  internal  

quotations omitted).  

                                                                     -  6 -                                                                2690

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


provision   is   contrary   to   both  statute   and   case   law,                                   and   thus   plainly   erroneous  

notwithstanding his failure to object in the trial court to this portion of the condition.                                                           18  


                        The State concedes that the omission of a maximum period of residential  


treatment was erroneous, but argues that the proper remedy is to remand Galindo's case  


to the superior court for further consideration of the residential treatment condition. But  


once a sentence has been meaningfully imposed, the imposition of a maximum term for  


residential  treatment  constitutes  an  illegal  increase  in  the  defendant's  sentence  in  



violation of the prohibition  against double jeopardy.                                                In  Christensen  v.  State,  we  


 suggested that there might be an exception to this rule if the imposition of residential  



treatment was integral to the trial court's sentencing decision.                                                   But the record in this  


case does not demonstrate that the residential treatment provision played a vital role in  


the superior court's overall sentencing decision.  


                        We therefore reverse the portion of Special Condition No. 5 authorizing  



residential treatment. 

      17    See   AS  12.55.100(c)  (providing  that  a  program   of   inpatient  treatment  must  be  

authorized, and may not exceed a maximum term of inpatient treatment specified, in the             

judgment);  Christensen v. State, 844 P.2d 557, 558-59 (Alaska App. 1993) (holding that a  

probation condition requiring residential treatment if recommended by a substance abuse                                      

evaluation was illegal because it failed to set a maximum period for such treatment).   

      18    See State v. Ranstead, 421 P.3d 15, 24 (Alaska 2018) ("[A]n illegal condition of  


probation is one that is substantively erroneous - that is, actually contrary to Roman or other  


applicable law.").  

      19    Christensen, 844 P.2d at 558-59; see also Dodge v. Anchorage, 877 P.2d 270, 272  


(Alaska App. 1994).  

      20    Christensen, 844 P.2d at 559.  

      21    See  Luke  v.  State,  2018  WL  4490908,  at  *4  (Alaska  App.  Sept.  19,  2018)  


(unpublished); Daley  v.  State,  2018  WL  4144978,  at  *2  (Alaska  App.  Aug.  29,  2018)  


                                                                        -  7 -                                                                  2690

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

             Galindo's remaining challenges to his probation conditions                                    

                         Galindo challenges four additional probation conditions. Because Galindo                                                     


did not object to these conditions in the trial court, he must now show plain error.                                                                           


                         Each  of  the  challenged  conditions  implicates  Galindo's  constitutional  


rights. When a probation condition implicates a defendant's constitutional rights, a court  


must apply special scrutiny to ensure that the condition is "narrowly tailored to avoid  



unnecessary interference with the constitutional right at issue."                                                           Accordingly, a court  


may  not  impose  such  a  condition  based  solely  on  the  fact  that  the  defendant  was  


convicted of a certain category of crime; rather, the court must "affirmatively consider  



and have good reason for rejecting lesser restrictions." 


                         We have reviewed the four conditions challenged by Galindo.  Although  


Galindo did not object to the conditions in the trial court, it is clear that each of the  


conditions raises obvious concerns - either because the record is plainly deficient to  



                                             or because there are obviously less restrictive alternatives to the  

support the condition, 

      21     (...continued)  


      22    Ranstead, 421 P.3d at 23.  

      23     Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015); see also Simants v. State,  


329 P.3d 1033, 1038-39 (Alaska App. 2014); Diorec v. State, 295 P.3d 409, 412 (Alaska  

App. 2013).  

      24    Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); see also Dawson v.  


State, 894 P.2d 672, 680-81 (Alaska App. 1995).  

      25     See, e.g., Hauge v. State, 2019 WL 4464683, at *5 (Alaska App. Sept. 18, 2019)  

(unpublished) (directing the trial court to reconsider a probation condition that precluded the  


defendant from possessing a firearm, even in the absence of any objection, because the  

record was "plainly devoid" of any support for the condition in that case).  

                                                                             -  8 -                                                                        2690

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


challenged condition.                                               We therefore remand for reconsideration of all four of the                                                                                                         


                                     Special Condition No. 3                                               :    This probation condition requires Galindo to                                                                               

actively participate in Department of Corrections-approved programming as directed by                                                                                                                                                     

his probation officer and abide by all conditions of the treatment program, which may   

include    plethysmograph    assessment.       Galindo    challenges    the    inclusion    of    the  

plethysmograph assessment, arguing that the use of such an invasive test implicates                                                                                                                                 

Galindo's liberty interests and should be vacated because Galindo is already subject to                                                                                                                                                    

less restrictive testing like polygraph examinations.                                                    

                                     Plethysmograph                                     testing                 is        a       procedure                         that            "involves                       placing                   a  

pressure-sensitive device around a man's penis, presenting him with an array of sexually                                                                                                                                  

stimulating images, and determining his level of sexual attraction by measuring minute                                                                                                                                        



changes in his erectile responses."                                                                      As the Ninth Circuit has noted, plethysmograph  


testing "not only encompasses a physical intrusion but a mental one, involving not only  



a measure of the subject's genitalia but a probing of his innermost thoughts as well."                                                                                                                                                              


We  have  previously  held  that  plethysmograph  testing  is  sufficiently  intrusive  and  

         26        See, e.g.,  Powell v. State, 2018 WL 3660226, at *2-3 (Alaska App. Aug. 1, 2018)   

(unpublished) (directing the trial court to reconsider a probation condition that limited the  

defendant's contact with his mother and brother, even in the absence of any objection, when                                                                                                            

it was readily apparent that reasonable, lesser restrictions were available).  



                   United  States  v.  Weber,  451  F.3d  552,  554  (9th  Cir.  2006)  (internal  quotations  


         28       Id. at 562-63 (citation omitted).  

                                                                                                                  -  9 -                                                                                                             2690

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

demeaning   as  to  implicate   a   liberty   interest,   and   we   have   repeatedly   vacated   this  

condition, or remanded for application of special scrutiny.                                   29  


                      The State acknowledges that the current record is inadequate to support the  


imposition of plethysmograph assessment, but given Galindo's failure to object in the  


superior court, the State argues that we should allow the superior court to reconsider this  


portion of the condition, applying special scrutiny.  Although we agree that a remand is  


appropriate  under  these  circumstances,  we  question  whether  such  an  intrusive  



requirement could ever satisfy special scrutiny.                                     It is also unclear whether Alaska  


currently employs such testing in its supervision of sex offenders, an issue that the court  


may wish to address on remand.  


                      Special Condition No. 6:   This probation condition requires Galindo to  


"comply with [the] use of prescribed medications, if any."  Galindo argues that there is  


no indication in the record that he has a history of not taking or abusing prescription  


medication,  and  thus  this  condition  has  no  connection  to  his  convictions  or  to  his  


rehabilitation.  Galindo also argues that the condition is overbroad, since it requires him  


to takeany prescribedmedication, regardlessofits purpose, and that it is unconstitutional  


because it lacks any judicial oversight.  

     29    See, e.g.,   Gardner v. State, 2018 WL 6418086, at *4 (Alaska App. Dec. 5, 2018)   

(unpublished);  Luke  v.  State ,  2018  WL  4490908,  at  *4  (Alaska  App.  Sept.  19,  2018)  

(unpublished);   Daley   v.  State,  2018  WL  4144978,  at  *1  (Alaska  App.  Aug.  29,  2018)  

(unpublished);   Giddings v. State, 2018 WL 3301624, at *4-5 (Alaska App. July 5, 2018)                                         

(unpublished);  Kon  v.  State,   2018  WL  480454,  at  *5  (Alaska  App.  Jan.  17,  2018)  




           See, e.g., United States v. McLaurin, 731 F.3d 258, 261-62 (2d Cir. 2013) (vacating  


a plethysmography condition because the procedure was not "narrowly tailored to serve a  

compelling government interest" and noting that "[t]here is a line at which the government  

must stop.  Penile plethysmography testing crosses it.") (internal quotations omitted).  

                                                                 -  10 -                                                             2690

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

                      We   have   repeatedly   vacated   or   remanded   similar   conditions - either                                 

because they lacked any factual grounding in the record demonstrating that a particular                                          


medication   was   necessary   to   facilitate   a   defendant's   rehabilitation                                                          

                                                                                                                       or  because  the  



condition failed to include a mechanism for judicial review of the forced medication. 


                       The State concedes that the record is inadequate to support this condition,  


but requests an opportunity to present evidence and argument in support of the condition  

on remand.  Given the absence of an objection in the trial court, we conclude that it is  


appropriate  to  remand  this  condition  to  the  superior  court  to  afford  the  State  an  


opportunity to present evidence in support of the condition and - if the State elects to  



present evidence - for the court to apply special scrutiny to the proposed condition. 


                      We note, however, that to the extent Special Condition No. 6 requires  


Galindo to take any medication that is prescribed to him, without any connection to his  

      31   See Dere v. State, 444 P.3d 204, 226 (Alaska App. 2019) (noting that the sentencing  


judge failed to take any testimony or enter findings to justify the need for forced medication);  

see  also  Abarca  v.  State,  2020  WL  7238380,  at  *1-2  (Alaska  App.  Dec.  9,  2020)  


      32   See Love v. State, 436 P.3d 1058, 1060-61 (Alaska 2018) (discussing Kozevnikoff v.  


State, 433 P.3d 546, 547-48 (Alaska App. 2018)); see also Dere, 444 P.3d at 226; Huff v.  


State, 2019 WL 2451009, at *3-4 (Alaska App. June 12, 2019) (unpublished); Clifton v.  


State, 2019 WL 11093436, at *2-3 (Alaska App. Feb. 6, 2019) (unpublished);  Wilson v.  


State, 2018 WL 4492289, at *3 (Alaska App. Sept. 19, 2018) (unpublished).  

      33   See Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015) (recognizing the right  

to make independent medical choices and the need to narrowly tailor probation conditions  


related  to  medical  treatment  so as  to  not  infringe  on  this  right  unnecessarily);  see  also  


Huffman v. State, 204 P.3d 339, 346 (Alaska 2009) (holding that "the right to make decisions  


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


Alaska");  Rollins  v.  Ulmer,  15  P.3d  749,  752,  754  (Alaska  2001)  (recognizing  a  


"constitutional right to make independent medical choices," grounded in the right to privacy).  


                                                                   -  11 -                                                               2690

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


rehabilitation, it cannot survive special scrutiny.                                                   Over the course of a probationer's            

supervision, the probationer may make numerous medical decisions that are unrelated   

to his crime or to his potential for future criminality; these types of decisions should not                                                                           


subject the probationer to incarceration for failing to follow medical advice.                                                                                 

                           To the extent the condition merely precludes Galindo from abusing any  


prescribed medication that he elects to take, there is no evidence currently in the record  


to suggest that Galindo has a history of not taking or abusing prescription medication,  


or that such a condition is otherwise reasonably related to his rehabilitation or to the  


protection of the public.36  



                           If the superior court determines on remand that a modified version of this  


condition is appropriate and necessary, the court should clarify the meaning of the  


condition and provide a clear mechanism for judicial review prior to the compelled  



administration of any medication. 

       34    See  Baker  v.  State,  2003  WL   21663992,  at  *1-2  (Alaska  App.  July   16,  2003)  

(unpublished)  (vacating  a  probation  condition  requiring  the  defendant  to  take  any  


medications prescribed by a licensed practitioner as there was no evidence in the record that  

the condition would protect the public or serve to rehabilitate the defendant).  



             See, e.g., In re Luis F. , 177 Cal.App.4th 176, 184, 99 Cal.Rptr.3d 174, 181 (Cal. App.  


2009) ("We agree with Luis that if the medication requirement were intended to subject him  


to future incarceration for failing to treat his toenail fungus as prescribed by a doctor, it  


would be impermissibly overbroad - not to mention unreasonable and arbitrary.").  



             See  Bedwell  v.  State,  2018  WL  2277363,  at  *8  (Alaska  App.  May  16,  2018)  


       37    See Dere v. State, 444 P.3d 204, 226 (Alaska App. 2019) (citing Kozevnikoff v. State,  

433 P.3d 546 (Alaska App. 2018)).  

                                                                                 -  12 -                                                                            2690

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

                              Special Conditions Nos. 13 & 14                                              :    Special Condition No. 13 prohibits                          

Galindo from possessing any sexually explicit material without prior permission of the                                                                                                    

probation office and Galindo's sex offender treatment provider.                                                                                Special Condition No.                     

 14 requires Galindo to submit to a search for any such material.                                                                                      "Sexually explicit   

material"   is   defined   as   "materials   depicting   conduct   set   forth   in   AS   11.41.455(a),  

regardless of whether the conduct depicted involves adults or minors."                                                                    

                              The   court's   reliance   on   AS   11.41.455(a)   to   define   "sexually   explicit  

material" appears to be an attempt to comply with our decision in                                                                               Diorec v. State                  , a case     


in which the defendant was convicted of unlawful exploitation of a minor.                                                                                                       

                                                                                                                                                                          In Diorec,  


we held that the term "sexually explicit material" in a similar probation condition was  


unconstitutionally vague, and we directed the superior court to revise the condition to  


provide the defendant with constitutionally adequate notice of the materials he was  



prohibited from possessing.                                          In doing so, we suggested that the definition set out in  


AS 11.41.455(a) - which establishes the crime of unlawful exploitation of a minor and  


contains a list of sexual conduct involving a child under eighteen years of age - could  



provide a useful reference point. 


                              At the same time, since Diorec, we have also recognized that when the  


definition set out in AS 11.41.455(a) is expanded to include adults, it is "likely to include  


depictions  of  sexual  activity  .  .  .  that  '[are]  now  relatively  commonplace  within  

        38     Diorec v. State , 295 P.3d 409 (Alaska App. 2013).  

        39     Id. at 417.  

       40      Id. at 417-18.  Alaska Statute 11.41.455(a) - the crime of unlawful exploitation of  

a minor - refers to the following actual or simulated conduct engaged in by a child under  


 18 years of age:  (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; and (7)  

sexual masochism or sadism.  

                                                                                          -  13 -                                                                                      2690

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


mainstream   media,   cable   television   shows,   and   movies.'"                                                 This   is   potentially  

problematic because the right to possess sexually explicit material involving adults is                                                               

constitutionally protected under the First Amendment.                                           42  


                        Galindo has been convicted of a crime against an adult.   And Special  


Conditions Nos. 13 and 14 - which restrict Galindo's possession of "sexually explicit  


material" - define this phrase by reference to a statute that captures conduct involving  


minors, but the definition has been expanded to include conduct involving adults. These  


conditions therefore implicate the overbreadth concerns we have previously identified.  


                        The State contends that theconditions areappropriatebecauseGalindo was  


convicted of a sexual felony. In addition, the State notes that J.C. testified at trial that -  


when she announced that she was calling the police - Galindo told her that he had taken  


intimate photographs of her without her knowledge, and he threatened to send them to  


her family members and post them online if she reported  the  sexual assault.   This  


evidence  might  support  a  more  restrictive  condition  -  for  example,  a  condition  


prohibiting Galindo from taking or distributing sexually explicit photos or videos.  But  


there  is no  evidence currently  in  the record that Galindo's rehabilitation  would  be  

      41    Whiting v. State, 2014 WL 6713200, at *2 (Alaska App. Nov. 26, 2014) (unpublished)   

(quoting   Johnston   v.  State ,  2013  WL  4780812,   at   *3  (Alaska  App.  Sept.  4,  2013)  




            See United States v. Williams, 553 U.S. 285, 288 (2008) (right to possess sexually  


explicit material involving adults); Ashcroft v. Free Speech Coalition , 535 U.S. 234, 240  


(2002) ("As a general rule, pornography can be banned only if obscene, but . . . pornography  

showing minors can be proscribed whether or not the images are obscene" under the Court's  


definition  of  obscenity.);  Smith  v.  State,  349  P.3d  1087,  1094  (Alaska  App.  2015)  


(recognizing that probation conditions limiting the defendant's access to sexually explicit  


material potentiallyinfringed on the defendant's First Amendment rights); see also Ackerman  


v. State, 2019 WL 856724, at *11 (Alaska App. Feb. 20, 2019) (unpublished); Johnston ,  


2013 WL 4780812, at *2; Timm v. State, 2000 WL 1745221, at *3 (Alaska App. Nov. 29,  

2000) (unpublished).  

                                                                       -  14 -                                                                  2690

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hampered by possessing or viewing the type of mainstream media or images that the                                                                                                                                                           

broad definition of "sexually explicit material" in these conditions seemingly includes.                                                                                                                                                                

                                      We therefore remand Special Conditions Nos. 13 and 14 for the superior                                                               

court to determine whether the conditions are reasonably related to the                                                                                                                           goals of probation      

and "narrowly tailored to avoid unnecessary interference" with Galindo's constitutional                                                                                                                        



                        and if so, to reconsider the definition of "sexually explicit material" employed  


in the conditions.  



                                      We REMAND Galindo's case to the superior court for reconsideration of  


the plethysmograph provision in Special Condition of Probation No. 3, as well as Special  


Conditions of Probation Nos. 6, 13, and 14, in accordance with the guidance provided  


in this opinion.  We REVERSE the residential treatment provision in Special Condition  


of Probation No. 5.  With those exceptions, we AFFIRM the judgment of the superior  


         43        See Simants v. State, 329 P.3d 1033, 1039 (Alaska App. 2014) (internal quotations                                                                          


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