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Whiting v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Nov 26, 2014
Court of Appeals No. A-11106 (Alaska Ct. App. Nov. 26, 2014)

Opinion

Court of Appeals No. A-11106 No. 6120

11-26-2014

JOSHUA M. WHITING, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.


NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4FA-10-174 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.

Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

Joshua M. Whiting was convicted under a plea agreement of second-degree murder for killing his former landlord. He filed an appeal challenging several special conditions of probation imposed as part of his sentence for that offense, arguing that the conditions were impermissibly vague, overbroad, and not reasonably related to his rehabilitation or protection of the public.

In our previous decision, Whiting v. State, we vacated three of the conditions Whiting challenged (Special Conditions 8, 9, and 26) and directed the superior court to determine whether those conditions could be modified to address the concerns we identified, or instead should be vacated in their entirety.

2014 WL 706268 (Alaska App. Feb. 19, 2014) (unpublished).

On remand, the State withdrew Special Condition 9 from the superior court's consideration, but urged the court to modify and reimpose Special Conditions 8 and 26. The superior court agreed to this request and imposed modified versions of those two special conditions.

Whiting again seeks relief from this Court. He asserts that the modified version of Special Condition 26 — which requires him to report his history of sexual offenses and domestic violence to all "household members" as that term is defined in AS 18.66.990(5)(A)-(G) — should be vacated because it is vague and not reasonably related to his rehabilitation or protection of the public. He also argues that the superior court did not adequately justify the requirement in modified Special Condition 8 that he not possess sexually explicit materials. For the reasons explained here, we agree that an additional remand is needed.

Why we vacate the modified version of Special Condition 26

The prior version of Special Condition 26 required Whiting to disclose his history of sexual offenses and domestic violence to all persons with whom he had a "significant relationship" or was "closely affiliated." We concluded that this condition was impermissibly vague because it gave Whiting no guidance on when an association with another person became sufficiently "close" or "significant" that he would be subject to prosecution for failing to disclose his criminal history.

Id. at *2.

Id. at *3; see Bodfish v. State, 2009 WL 3233716, at *5 (Alaska App. Oct. 7, 2009) (unpublished) (vacating as impermissibly vague a probation condition prohibiting the defendant from "enga[ging] in an intimate relationship with any person without prior written permission").

On remand, the superior court clarified that this condition was intended to protect people involved in a dating or sexual relationship with Whiting. The court was also concerned that notice be provided to individuals who, like the victim in this case, might be "drawn into" the orbit of that dating or sexual relationship because of jealousy or some other reason. However, when the superior court modified the condition, it did not limit Whiting's duty of disclosure to these types of relationships. Instead, the court required Whiting to give notice of his history of sexual offenses and domestic violence to all "household members" as that term is defined in AS 18.66.990(5)(A)-(G).

Colloquially, the term "household member" refers to individuals who share the same household. But as we explained in Carpentino v. State, for purposes of determining when a crime of domestic violence has occurred, AS 18.66.990(5) defines the term much more broadly to include not just individuals who live together or are involved in a sexual or dating relationship, but also individuals who have lived together or dated in the past. Indeed, under the statute, the child of a former high school or college sweetheart would qualify as a "household member." The definition also includes relatives as distant as first cousins and great-aunts and uncles, no matter where they reside.

Carpentino v. State, 42 P.3d 1137, 1141 (Alaska App. 2002).

Id.

Id.

Requiring Whiting to disclose his criminal history to such a potentially broad array of acquaintances and relatives is unnecessary to accomplish the superior court's purpose in imposing modified Special Condition 26, which was to ensure that "people who find themselves in a dating or sexual relationship with the defendant, or find themselves drawn into that relationship, [are] ... on notice of the danger the defendant presents to them." Moreover, there is no basis in the record for concluding that such a broad disclosure requirement is reasonably related to Whiting's rehabilitation or protection of the public.

See Hinson v. State, 199 P.3d 1166, 1168 (Alaska App. 2008).

Accordingly, we direct the superior court to modify Special Condition 26 to more closely reflect the court's intent to require Whiting to disclose his history of sexual offenses and domestic violence to individuals with whom he is in a "dating or sexual relationship." We think any effort to encompass additional individuals who might potentially be "drawn into" the orbit of that sexual or dating relationship will necessarily have too broad a sweep. If the condition is limited in this fashion, we do not believe it presents constitutional vagueness concerns, so long as the court retains the provision requiring Whiting to consult with his probation officer or approved treatment provider to determine whether a particular relationship qualifies as a "dating or sexual relationship."

Why we vacate the last sentence of the modified version of Special Condition 8

The prior version of Special Condition 8 forbade Whiting from possessing "any material that acts as a stimulus for his abusive cycle or that acts as a stimulus to arouse him in an abusive fashion." We vacated this condition because it did not define with specificity what materials were prohibited, and because the court did not explain why it had imposed the condition. On remand, the superior court modified the condition to define more precisely the materials Whiting may not possess.

See Whiting, 2014 WL 706268, at *2.

Whiting challenges the last sentence of modified Special Condition 8, which prohibits Whiting from "possessing on his person or in his residence or vehicle, materials depicting conduct set forth in AS 11.41.455(a)(1), (2), (4), (6), and (7), regardless of whether the conduct depicted involves adults or minors." Whiting argues that this condition is not reasonably related to his rehabilitation or protection of the public "because it is not conditioned on a sex offender treatment provider recommending Whiting not possess such material."

We agree that the last sentence of modified Special Condition 8 must be vacated. All the other conditions of probation that limit Whiting's participation in sexualized activity — including Special Condition 11's prohibition on his visiting strip clubs — condition that limitation on the recommendation of a sex offender treatment provider. Moreover, the superior court pointed to no specific evidence to support its finding that viewing these types of sexually explicit material contributes to Whiting's problems with impulse control. We note that even with the Court's narrowing construction, the prohibited material is still likely to include depictions of sexual activity by adults that "is now relatively commonplace within mainstream media, cable television shows, and movies."

Compare Diorec v. State, 295 P.3d 409, 416-17 (Alaska App. 2013) (noting that Diorec's offense "essentially involved ... the production of pornography").

Johnston v. State, 2013 WL 4780812, at *3 (Alaska App. Sept. 4, 2013) (unpublished).
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Accordingly, we direct the superior court on remand to make its prohibition on Whiting's possession of sexually explicit materials conditional on a sex offender treatment provider's recommendation.

Conclusion

We VACATE modified Special Condition 26 and the last sentence of modified Special Condition 8 and REMAND for proceedings consistent with this decision. We do not retain jurisdiction.


Summaries of

Whiting v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Nov 26, 2014
Court of Appeals No. A-11106 (Alaska Ct. App. Nov. 26, 2014)
Case details for

Whiting v. State

Case Details

Full title:JOSHUA M. WHITING, Appellant, v. STATE OF ALASKA, Appellee.

Court:COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Nov 26, 2014

Citations

Court of Appeals No. A-11106 (Alaska Ct. App. Nov. 26, 2014)

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