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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE W. MIYASATO, III, )
) Court of Appeals No. A-5069
Appellant, ) Trial Court No. 1SI-93-094 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1402 - March 31, 1995]
______________________________)
Appeal from the Superior Court, First
Judicial District, Sitka, Larry C. Zervos,
Judge.
Appearances: Galen S. Paine, Assistant
Public Defender, Sitka, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
George W. Miyasato, III, was convicted of second-degree
burglary, AS 11.46.310(a). He was sentenced to 4 years' imprison-
ment with 1 year suspended (3 years to serve). As a condition of
his incarceration and as a condition of his probation, Miyasato
was ordered to undergo sex offender therapy. On appeal, Miyasato
asserts that this portion of the superior court's judgement is
illegal under Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977),
and Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991),
because sex offender therapy is not reasonably related to
Miyasato's rehabilitation. We affirm the superior court's order.
Miyasato was convicted in 1983 of attempted first-
degree sexual assault when he broke into a woman's house at night
and tried to rape her. He was sentenced to 4 years' imprisonment
with 1 year suspended (3 years to serve). Miyasato was released
on probation in July 1987, but his probation was revoked in
February 1990 when, among other things, Miyasato admitted that he
had assaulted his girlfriend.
In 1991, Miyasato was convicted of third-degree sexual
assault and first-degree criminal trespass for breaking into a
woman's house, then disrobing her and fondling her while she
slept.
Miyasato's present conviction, his third felony, arises
from an incident that occurred in Sitka on April 5, 1993.
Miyasato stole a woman's purse from the back room of a flower
shop. The owner of the purse saw Miyasato committing this theft,
and she ran after him. She caught him and wrestled with him for
control of the purse; Miyasato finally dropped the purse and ran
away.
In the pre-sentence report, the Department of
Corrections recommended that Miyasato be ordered to undergo sex
offender treatment. Miyasato had been ordered to participate in
sex offender therapy in connection with his previous offenses,
but these attempts proved unsuccessful. Miyasato stopped
attending the therapy sessions; when the counselors at the
program tried to induce Miyasato to return, he refused -
apparently because he knew he was already in violation of his
probation for using alcohol and drugs.
When the pre-sentence investigator again recommended
sex offender treatment in connection with the present case,
Miyasato's attorney objected. She argued that this condition
bore no relationship to Miyasato's current offense. The
prosecutor responded that, while Miyasato's present offense might
be a property crime, the condition of sex offender treatment was
justified by "the needs of the particular offender". Miyasato's
attorney replied that this was a legally insufficient basis for
imposing the therapy - that therapy could be imposed only if it
bore some relation to the particular offense for which Miyasato
was currently being sentenced.
Superior Court Judge Larry C. Zervos concluded that he
should follow the recommendation of the pre-sentence investigator
and order Miyasato to participate in sex offender therapy. Judge
Zervos stated:
[The] ... hardest question for me, quite
frankly, is the condition of probation
[requiring sex offender therapy]. I think
that it's very clear, based on the reading of
the pleadings that I have before me, that
whatever those problems were that occurred in
1983 and 1990[, they] have not been
addressed, [they] have not been treated. ...
You have attended some [therapy programs in
the past], but the ultimate result was the
same, you wash out of them, you quit going.
And ... both reports that I have in the file
that concern this problem with the sexual
issue [--] the one that was [written] in 1988
says the factors indicate that George's
potential to reoffend remains high. Well,
that was certainly very clear in 1990; he
reoffended. The [report] that was done in
1986 indicates that Miyasato ... is to be
considered an extremely dangerous man at this
time because of a lack of motivation,
regression, extreme anger at women, and
denial [of] his substance abuse. Somewhere
else in these reports it indicates there's a
pent-up anger against women.
. . . .
The record is there. All your crimes
are associated with women. The first two
very clearly, then [the assault on] the
person you lived with. [The present] case is
a little problematic. The target was a
woman. I'm not sure if the purse was the
target or [if] the woman was the target. I
don't know. Obviously the purse is what you
were after, and the woman was the one that
got pushed down. What disturbs me is that
I'm not so sure that this -- I can't tell
whether this offense is connected with this
problem with women or not. I just don't
know. Certainly on the surface it's not. If
we took a little time to go underneath it, it
may be, but I don't know. What I do know
though is that I think it's important for
your rehabilitation, if there's going to be
any hope for that, that you get some
treatment for whatever this problem is.
. . . .
[T]he conditions of rehabilitative proba-
tion are designed to address the offense
that's been committed, but [they are] also
designed to address the offender and that
offender's rehabilitation. To me, until this
anger or whatever this problem is that you
have is addressed, ... your chances for
rehabilitation are lessened. But, more
importantly, ... the chances of some [crime]
being committed against some woman out there,
some assault or some other problem, are
heightened. Therefore, ... I will [order]
that you receive sex offender treatment and
therapy.
On appeal, Miyasato renews his challenge to the require-
ment that he attend sex offender therapy. Miyasato's argument is
premised on the fact that, in the present case, he was convicted
of a property offense, not a sexual assault. Because his present
offense was a property crime, Miyasato claims that sex offender
treatment bears no relationship to his offense or to the
likelihood that he would again commit an offense of this kind.
Conditions of probation "must be reasonably related to
the rehabilitation of the offender and the protection of the
public", and they "must not be unduly restrictive of [the
probationer's] liberty". Roman v. State, 570 P.2d 1235, 1240
(Alaska 1977). Nevertheless, a condition of probation need not
directly relate to the offense for which the defendant stands
convicted. In Allain v. State, 810 P.2d 1019 (Alaska App. 1991),
this court upheld a probation condition that forbade the
defendant from drinking alcoholic beverages, even though the
defendant's offense was not alcohol- related. Allain, 810 P.2d
at 1022-23. This court upheld the condition because it enhanced
the defendant's prospects for rehabilitation:
The record ... establishes that Allain
... suffers from immaturity and has
difficulty controlling anger. From the
circumstances surrounding the offense in this
case, it is also fair to infer that Allain
has problems controlling impulsive behavior.
These problems appear to be substantial, and
there is no reason to suppose that Allain
will have an easy task addressing them as a
probationer.
While the amount of alcohol that Allain
consumes does not appear to be excessive, and
while the record discloses no direct link
between Allain's drinking and his current
offense, ... under the circumstances, [the
sentencing judge] could reasonably have con
cluded that Allain's chances for successfully
addressing his problems with immaturity,
anger, and impulsiveness could be enhanced by
eliminating the potential distraction and
complication that might be posed if Allain
developed an incipient problem with alcohol
abuse. The judge did not abuse his
discretion in determining that the challenged
special condition [of probation] was
reasonably related to the goal of
rehabilitation.
Allain, 810 P.2d at 1022 (footnote omitted).
Evaluated in light of Allain, the record in Miyasato's
case supports Judge Zervos's decision to order Miyasato to
undergo sex offender therapy. While Miyasato's present offense
may not have been directly related to his misogyny, Miyasato's
past record provides ample basis for Judge Zervos to conclude
that sex offender treatment was integrally related to Miyasato's
rehabilitation and to the future protection of the public.
The judgement of the superior court is AFFIRMED.
