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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

                                                                      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  



JOSE ALFREDO GALINDO,  

                                                                                          Court of Appeals No. A-12870  

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



                                    v.  

                                                                                                         O P I N I O N  

STATE OF ALASKA,  



                                                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,  

                                                                 

                        Judges.  



                        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-----------------------

                                                                                             1  

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  



                                                                                                                                                                                                                                                                      2  

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  



                                                                                                           3  

                                                                                                                                                                                                                                       

                                                                                                                 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  

                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                 (continued...)  



                                                                                                                             - 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                                                                    



                                                                    4  

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.  

 1989).  



      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                                                      



                                                                                                                         5  

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  



                                                                                                     6  

                                                                                                                                                                      

                                                                                                        - the court had the authority to  

he had a dating relationship or sexual relationship 



                                                                                                                  7  

                                                                                                                                                      

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



                                                                                                                                            8  

                                                                                                                       

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  



                                                                                                                                                                9 

                                                                       

convictions and multiple probation violations and prison disciplinary infractions.   He  



                                                                                                                                                                  

argues  that  a  shorter  sentence  would  have  adequately  addressed  deterrence  and  



                                                     10  

                                                                                                                                                                

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                                                        



                                                                                                                                                 11  

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  



                                12  

                                                                                                                                                  

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

mitigating factor. 

mistaken.13  



                                                                                                                                                                

                        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  



community."  



                                                                                                                                                       

                        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  



                                                                                                          14  

                                                                                            

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                                          



                                                                                                                    15  

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  



                                                                                                                              16  

                                                                                                                                   

                                                                                                           

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-----------------------

                                                                                                 17  

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  



                                                                                                19  

                                                                                                                                                   

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  



                                                                                                              20  

                                                                                                                                                  

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  



                                     21  

                     

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)  

                                                                                                                                  (continued...)  



                                                                        -  7 -                                                                  2690
  


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

             Galindo's remaining challenges to his probation conditions                                    



                         Galindo challenges four additional probation conditions. Because Galindo                                                     



                                                                                                                                                          22  

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  



                                                                                                                       23  

                                                                                                                                                          

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  



                                                                                                       24  

                                                                                                            

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  



                                         25  

                                                                                                                                                               

                                             or because there are obviously less restrictive alternatives to the  

support the condition, 



      21     (...continued)  



(unpublished).  



      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-----------------------

                                                             26  

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



conditions.   



                                     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                                                                                                                                        



                                                                                                 27  

                                                                                                                                                                                                   

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  



                                                                                                                                                                                                                                            28  

                                                                                                                                                                                                                            

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).  



         27  

                                                                                                                                                                                          

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

omitted).  



         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  



                                                                               30  

                                                                                                                                 

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)  

(unpublished).  



     30  

                           

           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                                          



                                                                                                                   31  

medication   was   necessary   to   facilitate   a   defendant's   rehabilitation                                                          

                                                                                                                       or  because  the  



                                                                                                                                              32  

                                                                                                                           

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  



                                                                                                                                             33  

                                                                                                                                                  

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)  

(unpublished).  



      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-----------------------

                                                                                                 34  

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                                                                           



                                                                                                                                                        35  

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  



                                                                   37  

                                                                        

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).  



       35  

                                

             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.").  



       36  

                                                                                                                                                         

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

(unpublished).  



       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     



                                                                                                                                                                    38  

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  



                                                              39  

                                                                                                                                                                                            

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  



                                                                        40  

                                                            

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-----------------------

                                                                                                              41  

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)  

(unpublished)).  



      42  

                    

            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
  


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

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                                                                                                                        



                  43  

rights,                                                                                                                                                                                                                  

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



                  

in the conditions.  



                   Conclusion  



                                                                                                                                                                                                                                               

                                      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  



court.  



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



omitted).  



                                                                                                                  -  15 -                                                                                                               2690
  

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