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holding that failure to give factual unanimity instruction was harmless beyond a reasonable doubt where there was "no reasonable possibility" that the jury would have acquitted on one of the criminal acts supporting the defendant's conviction
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Court of Appeals No. A-11958 No. 6747
12-19-2018
VIKTOR M. MALYK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 4DJ-12-012 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Viktor M. Malyk was convicted of two counts of second-degree sexual assault and one count of fourth-degree sexual abuse of a minor stemming from two incidents involving his 16-year-old niece.
In this appeal, Malyk contends that various flaws in the jury instructions require reversal of his convictions, and that, in any event, the evidence presented at his trial was legally insufficient to support one of his convictions for sexual assault.
For the reasons explained in this opinion, we conclude that the flaws in the jury instructions do not require reversal of Malyk's convictions, and that the evidence presented at trial is sufficient to support the challenged conviction for sexual assault.
Malyk argues in the alternative that, even if he is not entitled to reversal of his convictions, he should not have received a separate conviction for fourth-degree sexual abuse of a minor, since this conviction was based on the same act of sexual contact as one of his convictions for sexual assault. We agree, and we direct the merger of these two counts into a single conviction.
Finally, Malyk argues — and the State agrees — that the superior court should issue a corrected pre-sentence report, and that certain conditions of Malyk's probation are invalid because they are either unconstitutionally vague or unsupported by the record. We find that the State's concessions of error are well-founded, and we therefore grant the relief that Malyk seeks.
Underlying facts
Because Malyk challenges the sufficiency of the evidence, we present that evidence in the light most favorable to the jury's verdict.
See, e.g., Coleman v. State, 407 P.3d 502, 511 (Alaska App. 2017).
Viktor Malyk lived in Delta Junction with his wife and children. In February 2012, Malyk's wife was visiting Ukraine, and Malyk's oldest daughter, Oksana, was placed in charge of her younger siblings. Oksana repeatedly asked her 16-year-old cousin, S.M., to come over and keep her company, and also to help her babysit her siblings. S.M. generally came over to Oksana's house in the daytime, but she also spent the night with Oksana on more than one occasion.
On one of these occasions, after the younger children had been put to bed, Oksana, S.M., and Malyk were sitting on a couch in the living room, watching a movie. Oksana grabbed a blanket to keep warm. Malyk, who was sitting between the two girls, grabbed another blanket and used it to cover both himself and S.M.
As Malyk was positioning this blanket, he touched S.M. between her legs. S.M. pushed his hand away. At trial, S.M. testified that she thought this first touching was a genuine accident. But then Malyk placed his hand inside S.M.'s pants and touched her between the legs again. When S.M. pulled Malyk's hand out of her clothing, Malyk took hold of S.M.'s hand and placed it inside his pants, against his penis. S.M. pulled her hand away, and then she got up and went into Oksana's room.
Based on this incident, Malyk was charged with second-degree sexual assault (sexual contact without consent) and fourth-degree sexual abuse of a minor (sexual contact with a minor of 16 or 17 years when the perpetrator is in a position of authority over the minor).
AS 11.41.420(a)(1) and AS 11.41.440(a)(2), respectively.
A second incident occurred later, in Oksana's bedroom. According to S.M.'s testimony, both she and Oksana were having trouble sleeping, so Oksana asked her father (Malyk) to give them sleeping pills. Malyk agreed, and he brought the girls some pills — telling the girls that the pills would make them "high" and then they would fall asleep. The girls took the pills around 4:00 a.m., but the pills were not immediately effective. S.M. testified that she and Oksana did not fall asleep until more than two hours later.
Oksana had to get up around 7:00 a.m. to prepare her younger siblings for school, and S.M. woke up at that time too. S.M. testified that she was still feeling the effects of the pill when she awoke, but her detailed description of what happened next showed that she was conscious, aware of what was happening, and capable of expressing herself.
S.M. testified that while Oksana was attending to her siblings in another room of the house, Malyk came into the bedroom while S.M. was still there. Malyk told S.M. that he had come to the bedroom to change a lamp, but then he started touching her. Malyk removed S.M.'s clothing. He then touched her breasts, and he started to lick her between the legs. S.M. was afraid to hit Malyk, because he was drunk and she feared that he would hit her back. However, she pushed Malyk away, and Malyk soon ended the assault because Oksana was returning to the bedroom.
Based on this incident, Malyk was charged with first-degree sexual assault (sexual penetration — i.e., cunnilingus — without consent) and second-degree sexual abuse of a minor (sexual penetration with a minor of 16 or 17 years when the perpetrator is in a position of authority over the minor). At Malyk's trial, the jury was also instructed on the lesser included offense of second-degree sexual assault (i.e., sexual contact without consent).
AS 11.41.410(a)(1) and AS 11.41.436(a)(6), respectively.
Part of the State's evidence in this case was a letter of confession that Malyk wrote after S.M.'s father (who was Malyk's brother) confronted Malyk about these incidents. In his letter (which was written in Russian), Malyk stated:
I, Viktor Malyk, had sexual relations with [my niece] by compulsion, without her agreement. I hereby announce that I was in a state of alcoholic intoxication, and I promise to go through treatment in a rehabilitation center for a minimum of one year. Otherwise, if I don't comply with what I have just promised, I'm ready to go through punishment in accordance with the law.
Malyk did not testify at his trial. His attorney conceded that Malyk had done something inappropriate, but the attorney argued that Malyk's inappropriate behavior did not fit the legal definition of sexual assault or abuse. In the defense attorney's words, Malyk "kissed [S.M.] below the bellybutton, but ... not actually on her private parts."
The defense attorney pointed out that S.M. had sometimes been vague in her description of precisely where Malyk touched or licked her. S.M. used the word "pee" to describe a person's private parts — and, during cross-examination, S.M. appeared to say that she used the word "pee" to describe any portion of the body that is normally covered by underwear. The defense attorney also reminded the jury that S.M. herself acknowledged that Malyk's first touch (under the blanket in the living room) appeared to have been accidental.
The defense attorney argued that, given all the circumstances, there was reasonable doubt as to whether Malyk's inappropriate conduct ever rose to the level of a crime.
At the conclusion of the trial, the jury found Malyk guilty of some charges but not guilty of others.
With respect to the allegation of sexual contact on the couch in the living room (charged both as second-degree sexual assault and fourth-degree sexual abuse of a minor), the jury found Malyk guilty of both counts.
With respect to the allegation of sexual penetration in the bedroom (charged both as first-degree sexual assault and second-degree sexual abuse of a minor), the jury found Malyk not guilty. However, the jury found Malyk guilty of the lesser included offense of second-degree sexual assault (i.e., non-consensual sexual contact with S.M. in the bedroom).
Malyk's claim that the evidence is insufficient to support his conviction for engaging in non-consensual sexual contact with S.M. on the couch in the living room
As we have explained, Malyk was convicted of two crimes (second-degree sexual assault and fourth-degree sexual abuse of a minor) for engaging in sexual contact with S.M. on the couch in the living room — the touching that occurred underneath the blanket.
The first of these crimes, second-degree sexual assault, requires proof that the sexual contact was "without consent" as that phrase is defined in AS 11.41.470(8). Malyk argues that his conviction for this crime should be reversed because the State failed to present sufficient evidence that the sexual contact occurred "without consent".
AS 11.41.470(8)(A) declares that an act of sexual penetration or sexual contact occurs "without consent" if the victim "is coerced by the use of force ... or by the express or implied threat of death, imminent physical injury, or kidnapping". In other words, the State must prove that the victim was not otherwise willing to engage in the sexual activity, and that the victim was coerced by force or by the threat of force.
Milligan v. State, 286 P.3d 1065, 1070-71 (Alaska App. 2012).
In her testimony, S.M. described three acts of sexual touching underneath the blanket. The initial touching occurred when Malyk was first positioning the blanket, and S.M. described this touching as "accidental". However, S.M. testified that Malyk later inserted his hand under her clothing and touched her genitals directly. Then, when S.M. pulled Malyk's hand away, Malyk took hold of S.M.'s hand and placed it under his own clothing, so that S.M. was touching Malyk's penis.
On appeal, Malyk acknowledges that this testimony was sufficient to establish that he engaged in sexual contact with S.M., and that S.M. did not agree to this contact. However, Malyk argues that this evidence failed to establish that S.M. was coerced by force or the threat of force.
We disagree. Under AS 11.81.900(b)(27), "force" includes "any bodily impact [or] restraint". Here, Malyk (a 51-year-old man) inserted his hand under his 16-year-old niece's clothing, and he held his hand on top of her genitals. Then, when S.M. pulled Malyk's hand out of her clothing, Malyk grabbed S.M.'s hand and held it against his penis. In both instances, Malyk's conduct was legally sufficient to establish that S.M. was "coerced" to engage in this sexual contact.
See Ritter v. State, 97 P.3d 73, 77-78 (Alaska App. 2004); Nicholson v. State, 656 P.2d 1209, 1213 (Alaska App. 1982).
Malyk's contention that his convictions for engaging in sexual contact with S.M. on the couch must be reversed because the jury was not instructed on the need to reach factual unanimity
As we have explained, S.M. described two acts of sexual contact on the couch: Malyk's act of inserting his hand into S.M.'s clothing and holding it on top of her genitals, and Malyk's act of grabbing S.M.'s hand, inserting it into his own clothing, and holding it against his penis. Either of these acts could support a conviction for second-degree sexual assault, but the State only charged Malyk with one count of sexual assault based on his entire conduct on the couch.
Alaska law requires jurors to reach unanimity regarding the act for which the defendant is found guilty. Thus, when the State presents evidence that a defendant committed two or more sexual acts that could each separately support the same conviction, the trial judge is required to instruct the jurors that, in order to return a verdict, they must reach unanimous agreement as to which of these acts the defendant committed.
Khan v. State, 278 P.3d 893, 897 (Alaska 2012); Taylor v. State, 400 P.3d 130, 134 (Alaska App. 2017).
Anderson v. State, 289 P.3d 1, 4 (Alaska App. 2012); Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).
In Malyk's case, no such instruction was given. On appeal, the State concedes that the trial judge's failure to give a factual unanimity instruction was error.
The trial prosecutor exacerbated this problem during her summation to the jury. During this summation, the prosecutor correctly noted that either of Malyk's acts of sexual contact, if proved, was sufficient to support Malyk's conviction for second-degree sexual assault (and the accompanying charge of fourth-degree sexual abuse of a minor). But the prosecutor did not explain that the jury had to reach agreement as to which of these acts had been proved.
The remaining question is whether this error requires reversal of Malyk's two convictions based on the incident on the couch.
Malyk contends that the trial judge's failure to give a factual unanimity instruction was structural error — meaning that the error automatically requires reversal of Malyk's convictions, without any inquiry into whether the error might have influenced the jury's decision.
But in both of our decisions in Anderson v. State, we rejected this "structural error" approach, and we applied the "harmless beyond a reasonable doubt" test that was first announced in Chapman v. California. Anderson holds that when a jury is not instructed on the need for factual unanimity (in cases where the law requires it), this error requires reversal of the defendant's conviction unless the State can show that the error was harmless beyond a reasonable doubt.
Anderson v. State, 289 P.3d 1, 5-7 (Alaska App. 2012), and on remand from the supreme court, 337 P.3d 534, 537 (Alaska App. 2014).
386 U.S. 18, 24; 87 S.Ct. 824, 828; 17 L.Ed.2d 705 (1967).
Anderson, 289 P.3d at 5-7, and on remand from the supreme court, 337 P.3d at 537.
We now turn to that analysis.
As we explained earlier, Malyk's defense to all four of the charges against him was that, even though he engaged in some "inappropriate" touching of his niece — including "kiss[ing] [S.M.] below the bellybutton" — the State had nevertheless failed to prove beyond a reasonable doubt that any of this touching fit the legal definition of sexual assault or sexual abuse. Malyk's attorney relied, in particular, on the fact that S.M. was sometimes vague in her description of precisely where on her body Malyk had touched or licked her.
But there was no vagueness or ambiguity in S.M.'s description of Malyk's taking her hand and making her touch his penis. And as a practical matter, Malyk offered no defense to this aspect of S.M.'s testimony.
We have examined the record of Malyk's trial, and we conclude that even if the jury had been instructed on the need for factual unanimity, there is no reasonable possibility that any of the jurors would have voted to acquit Malyk of forcing S.M. to touch his penis. We therefore conclude that the trial judge's failure to give a factual unanimity instruction was harmless beyond a reasonable doubt.
Malyk's argument that his conviction for engaging in non-consensual sexual contact with S.M. in the bedroom must be reversed because the jury was instructed on the "incapacitation" theory of "without consent"
As we have explained, Malyk was charged with first-degree sexual assault (i.e., non-consensual sexual penetration) for the incident in the bedroom, based on S.M.'s testimony that he held her on the bed and licked her between the legs. The jury acquitted Malyk of this charge, but the jury found him guilty of the lesser offense of second-degree sexual assault (i.e., non-consensual sexual contact).
Both first-degree and second-degree sexual assault require proof that the sexual activity occurred "without consent". We have already explained that sexual activity is "without consent" if it is coerced by force or the threat of force. But there is a second, alternate statutory definition of "without consent".
Under AS 11.41.470(8)(B), a sexual act is "without consent" if the victim is "incapacitated as a result of an act of the defendant". In this context, "incapacitated" means "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act." See AS 11.41.470(2).
In Malyk's case, the trial judge decided to instruct the jury on the "incapacitation" clause of the definition of "without consent", because of the evidence that Malyk provided Oksana and S.M. with sleeping pills, and based on S.M.'s testimony that, even after she awoke, she was still feeling the effect of the pill.
We agree with Malyk that this jury instruction was inappropriate in his case. Even though S.M. testified that she was still feeling the effect of the pill when Malyk came into the bedroom, there was no evidence that S.M. was "incapacitated" at that time — i.e., no evidence that she was "temporarily incapable of appraising the nature of [her] own conduct", or that she was "physically unable to express unwillingness to act." Indeed, S.M. described Malyk's words and actions in detail, and she testified that she pushed Malyk off of her when he licked her.
Not only was it inappropriate to instruct Malyk's jury on the incapacitation theory of "without consent", but the prosecutor compounded this problem when she argued the case to the jury. In her summation, the prosecutor contended that Malyk's sexual activtity with S.M. in the bedroom qualified as "without consent" under both statutory theories: first, because S.M. was coerced by force, and second, because S.M. was incapacitated as a result of Malyk's act of giving sleeping pills to the girls:
Prosecutor: [S.M.] says she was afraid. She says that she didn't — was afraid to hit him because he was drunk and she was afraid he was going to hurt her. That's "without consent". She says that when he was licking her "pee", he was hanging on to her. That's "without consent". [S.M.] said that [Malyk] gave her some sort of pills that he told her were going to make her high and then sleepy. That again is "without consent", under the definition. So, ladies and gentlemen, clearly the sexual acts that he performed upon her were without consent.
As we have explained, the jury acquitted Malyk of first-degree sexual assault (i.e., they found that the State had failed to prove that Malyk engaged in cunnilingus with S.M.), but the jury found Malyk guilty of second-degree sexual assault based on the incident in the bedroom.
On appeal, Malyk argues that this second-degree sexual assault conviction should be reversed because the jury should not have been instructed on the incapacitation theory of "without consent", and because the prosecutor improperly argued this theory to the jury.
We agree with Malyk that there was essentially no evidence to support the prosecutor's assertion that S.M. was incapacitated during the incident in the bedroom. But the fact that the prosecutor made this unsupported argument does not mean that Malyk is entitled to reversal of his sexual assault conviction. The jury was correctly instructed on the legal meaning of "incapacitated"; thus, they could see for themselves that the evidence failed to support the prosecutor's assertion that S.M. was incapacitated (as the law defines this term).
We therefore conclude that even though the trial judge should not have instructed the jurors on the incapacitation theory of "without consent", the error was harmless.
Malyk's argument that the flaw in the jury instruction on the elements of second-degree sexual assault constituted plain error
As we have already explained, to establish the crime of second-degree sexual assault under AS 11.41.420(a)(1), the State must prove that the sexual contact occurred "without consent" — which (issues of incapacitation aside) means that the victim was not otherwise willing to engage in the sexual activity, and that the victim was coerced by force or by the threat of force.
Milligan v. State, 286 P.3d 1065, 1070-71 (Alaska App. 2012).
The jury was correctly instructed on the meaning of "without consent". But the instruction on the elements of second-degree sexual assault was flawed.
This jury instruction began correctly, by telling the jurors that "a person commits the crime of Sexual Assault in the Second Degree if the person knowingly engages in sexual contact without the consent of that person."
But then, when the instruction listed each element of the offense separately, the list of elements failed to explicitly reiterate the requirement that the sexual contact occurred without S.M.'s consent. Instead, the instruction only referred to this requirement tangentially, by telling the jurors that the State had to prove that Malyk "recklessly disregarded S.M.'s lack of consent."
Here is how the instruction listed the elements of the crime:
First, that the event in question occurred at or near Delta Junction, in the Fourth Judicial District, ... on or between February 1, 2012 and February 11, 2012;In between the "second" and "third" elements listed here, the instruction should have explicitly mentioned the requirement that the sexual contact occurred without the consent of S.M.
Second, that Viktor M. Malyk knowingly engaged in sexual contact with S.M.; and
Third, that Viktor M. Malyk recklessly disregarded S.M.'s lack of consent.
Neither party brought this error to the judge's attention. But now, on appeal, Malyk argues that this flaw in the jury instruction constituted plain error. Specifically, Malyk argues that the jurors were never informed of the "without consent" element of the offense, and therefore his two convictions for second-degree sexual assault must be reversed.
We do not agree that the jurors were never informed of the "without consent" element of the offense. As we have explained, the first sentence of the jury instruction told the jurors that a person commits the crime of second-degree sexual assault "if the person knowingly engages in sexual contact without the consent of that person." The problem is that the instruction then failed to explicitly reiterate this "without consent" element of the offense when the instruction listed each element separately.
The instruction did, however, tell the jurors that the State had to prove that Malyk "recklessly disregarded S.M.'s lack of consent" — which implied that the jurors had to find that the sexual contact occurred without S.M.'s consent. And the jury was correctly instructed on the legal meaning of "without consent".
To the extent that the jury instruction lacked clarity on this point, we conclude that this flaw was rectified by the prosecutor's explanation of this charge during her statements to the jury.
Both in her opening statement and in her summation to the jury at the close of the trial, the prosecutor explicitly told the jurors that, with regard to the count charging second-degree sexual assault (i.e., the sexual contact on the couch), and the count charging first-degree sexual assault (i.e., the alleged cunnilingus in the bedroom), the State was required to prove that this sexual activity occurred "without consent".
And in her summation, the prosecutor explained why she believed that the evidence established the coercion necessary to prove the element of "without consent":
Prosecutor: The next thing you have to find with regard to Counts I and II is that he acted without consent. That this wasn't something that [S.M.] said was okay, it wasn't something that — her will was overborne by his actions and his words.
And so what do we have [on] that? Well, we've got his written statement. He says, I did it without consent. She says she was afraid. She says that she didn't — was afraid to hit him because he was drunk and she was afraid he was going to hurt her. That's "without consent". She says that
when he was licking her "pee", he was hanging on to her. That's "without consent".
The parties' arguments to the jury can cure defects or ambiguities in the jury instructions. Here, we conclude that the flaw in the jury instruction on the elements of second-degree sexual assault was cured by the prosecutor's repeated statements that the State was required to prove that Malyk's sexual contact with S.M. was "without consent".
See Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991).
Malyk's two convictions stemming from the sexual contact on the couch (second-degree sexual assault and fourth-degree sexual abuse of a minor) must merge into a single conviction
Malyk argues that even if his convictions for the sexual contact on the couch are supported by sufficient evidence, those convictions must merge because they are based on the same sexual contact. We agree.
We have previously held that when the same act gives rise to convictions for both first-degree sexual assault and first-degree sexual abuse of a minor, these convictions must merge, because the sexual assault statutes and the sexual abuse of a minor statutes have the same aim of protecting victims from socially unacceptable sexual contact. The fact that one offense requires proof that the act was "without consent", while the other offense requires proof that the victim was below the age of consent, does not affect the underlying purpose of the statutes. Thus, only one conviction is supportable under the test established by our supreme court in Whitton v. State.
Moore v. State, 123 P.3d 1081, 1093 (Alaska App. 2005); Yearty v. State, 805 P.2d 987, 994-95 (Alaska App. 1991).
Moore, 123 P.3d at 1093; Yearty, 805 P.2d at 994.
479 P.2d 302, 312-13 (Alaska 1970).
The State asks us to overrule this precedent and to hold that defendants can properly receive two separate convictions for a single coerced act of sexual penetration or sexual contact with a minor. Under the doctrine of stare decisis, the State must convince us of two things: first, that the existing rule either was originally erroneous or is presently no longer sound because of changed conditions, and second, that more good than harm would result from a departure from precedent.
Wassillie v. State, 411 P.3d 595, 611 (Alaska 2018).
We have considered the State's arguments, and we find them insufficient to justify overruling our prior decisions on this point of law.
We accordingly direct the superior court to enter one merged conviction for the act of sexual contact on the couch (based on the jury's two verdicts).
Malyk's conditions of probation must be amended
Malyk argues that several of his conditions of probation (specifically, Special Conditions 8, 10, 11, 13, 15, 18, 19, 21, and 26) are improper, either because they are unconstitutionally vague or because they are not supported by the record. The State concedes error with respect to all of these probation conditions.
We find the State's concessions to be well-founded. Accordingly, we vacate these conditions — although the superior court has the authority to impose revised conditions if (1) those conditions provide a constitutionally adequate definition of what conduct is prohibited to Malyk, and if (2) the superior court makes sufficient findings regarding the reasons why these conditions are appropriate, given the facts of Malyk's case.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case). --------
See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977) (holding that a defendant's conditions of probation must be "reasonably related to the [defendant's] rehabilitation ... and the protection of the public", and that they "must not be unduly restrictive of [the defendant's] liberty").
Malyk's pre-sentence report must be corrected
Prior to Malyk's sentencing, his attorney objected to the pre-sentence report on the ground that it contained a version of the facts of Malyk's case that conflicted with the evidence presented at Malyk's trial. The parties discussed this issue at Malyk's sentencing hearing, and in response to this discussion the judge struck portions of the pre-sentence report. But to implement this ruling, the judge merely drew a line through the portions to be redacted, leaving the words still legible.
On appeal, Malyk argues that the judge should have either completely blacked out the redacted text or, alternatively, should have ordered the Department of Corrections to prepare a corrected pre-sentence report that omitted the redacted language. The State agrees.
We, too, agree that the superior court should have followed one of the alternatives proposed by Malyk. See Cragg v. State, 957 P.2d 1365, 1368 (Alaska App. 1998). We therefore direct the superior court to do so.
Conclusion
We direct the superior court to amend the judgement by entering one merged conviction based on the jury's verdicts finding Malyk guilty of sexual assault and sexual abuse for the sexual contact that occurred on the couch in the living room.
We vacate Special Conditions of Probation 8, 10, 11, 13, 15, 18, 19, 21, and 26 — although the superior court may impose modified versions of these conditions if the court provides a constitutionally adequate definition of what conduct is prohibited to Malyk, and if the court makes findings that would support the imposition of these conditions under the Roman test.
In addition, we direct the superior court to redact the pre-sentence report in a proper manner.
With these exceptions, the judgement of the superior court is AFFIRMED.