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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALVA W. PERATROVICH, SR., )
) Court of Appeals No. A-5356
Appellant, ) Trial Court No. 1KE-93-631 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1441 - October 6, 1995]
______________________________)
Appeal from the Superior Court, First
Judicial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: James W. McGowan, Sitka,
for Appellant. Nancy R. Simel, 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.
Alva W. Peratrovich, Sr., appeals his conviction for
third-degree sexual abuse of a minor (sexual contact with a minor
between the ages of 13 and 15), AS 11.41.438(a)(1). He also
appeals two provisions of his sentence. We affirm Peratrovich's
conviction, but we remand this case to the superior court for
reconsideration of Peratrovich's sentence.
During her sixth-grade year, V.J.'s parents (who lived
in Craig) sent her to live with her grandmother and
stepgrandfather, Clara and Alva Peratrovich, Sr., so that she
could attend school in Klawock. V.J. was 11 and 12 years old
during that school year. V.J. testified that Alva Peratrovich
often entered her room at night. V.J. would awaken to find
Peratrovich sitting on her bed, touching her genitals and her
breasts. V.J. testified that she "would push him away, but he
wouldn't go. I'd tell him to stop, and he wouldn't. There was
nothing I could do; he was bigger than me. I couldn't do
anything."
In the fall of 1988, around the time V.J. began eighth
grade, her mother informed her that her grandmother had been
diagnosed with breast cancer. V.J. no longer lived at her
grandparents' house, but often spent time there after school.
One afternoon after school, V.J. was in the back room of the
Peratrovich home, watching television. Peratrovich entered the
room and informed V.J. of her grandmother's breast cancer. V.J.
told Peratrovich that she was already aware of her grandmother's
illness. At this point, Peratrovich insisted on "showing" V.J.
where her grandmother's tumors were by touching V.J.'s breasts.
According to V.J.'s testimony, Peratrovich
kept trying to show me ... where [the
doctors] thought the lumps were going to be,
and I kept telling him that I already knew,
... and he just decided to show me anyway.
... He started feeling my breasts, and
pushing on them, and ... showing me where her
lumps were.
V.J. became angry and began to yell, whereupon Peratrovich
stopped touching her. It was this incident that formed the basis
of Peratrovich's conviction for third-degree sexual abuse of a
minor. (Peratrovich was originally also indicted for the sexual
touching that occurred during V.J.'s sixth-grade year, but this
charge was dismissed after the superior court ruled that the
charge was barred by the statute of limitations.)
Admissibility of Evidence of Peratrovich's
Prior Sexual Abuse of V.J.
Before his trial, Peratrovich asked the superior court
to prohibit the State from introducing evidence of Peratrovich's
sexual abuse of V.J. during her sixth-grade year. Superior Court
Judge Michael A. Thompson ruled that this evidence was admissible
under Alaska Evidence Rule 404(b)(2). Peratrovich questions this
ruling on appeal.
In the version in effect at the time of Peratrovich's
trial, Evidence Rule 404(b)(2) declared that, in a prosecution
for either physical or sexual abuse of a minor,
evidence of other acts by the defendant
toward the same or another child is
admissible to show a common scheme or plan if
admission of the evidence is not precluded by
another rule of evidence and if the prior
offenses
(i) are not too remote in time;
(ii) are similar to the offense
charged; and
(iii) were committed upon persons
similar to the prosecuting witness.
Peratrovich argues that his sexual abuse of V.J. during her sixth-
grade year was "too remote in time" because it occurred two years
before the act charged in the indictment. Peratrovich also
argues that his acts of touching V.J.'s genitals and breasts were
not "similar to the offense charged" because they occurred at
night, because they involved genital touching, and because they
occurred in a different year.
Peratrovich's argument is meritless. First, we are
unpersuaded by Peratrovich's purported distinctions between his
1988 sexual abuse of V.J. and his 1986 sexual abuse of V.J..
Second, Peratrovich's suggested construction of Evidence Rule
404(b) would run completely counter to the legislature's
intention when it enacted this rule.
The current version of Evidence Rule 404(b) exists
because the legislature wished to make it easier for the
prosecution to introduce evidence of a defendant's other acts of
sexual or physical abuse. See the House Judiciary Committee's
Letter of Intent accompanying Sec. 9, ch. 66 SLA 1988, found in
the 1988 House Journal, p. 2332. But even before Evidence Rule
404(b) was amended by the legislature, the evidence challenged in
this case would have been admissible. In Burke v. State, 624
P.2d 1240, 1249 (Alaska 1980), the supreme court recognized a
"lewd disposition" exception to former Rule 404(b). The holding
in Burke was described by this court in Moor v. State, 709 P.2d
498, 506 (Alaska App. 1985):
In Burke, the supreme court considered a
sexual offense exception to the general rule
excluding evidence of other crimes or
wrongful acts[.] Under this exception, such
evidence was admissible to show "lewd
disposition." The court decided that, where
the prior alleged acts are all with the same
victim, evidence of those acts is admissible.
The challenged evidence in this case is of sexual abuse that
Peratrovich perpetrated upon the same victim. It was therefore
admissible under Burke even before the legislature amended Rule
404(b). Since the legislature's declared purpose in amending the
rule was to expand the scope of admissibility, we must reject
Peratrovich's contention that his other acts of sexual abuse
committed upon V.J. were inadmissible under the amended version
of Rule 404(b) even though they would have been admissible under
the former version of the rule.
Whether the Statutory Definition of "Sexual
Contact" is Unconstitutionally Vague
Peratrovich next raises a constitutional challenge to
his conviction. At trial, Peratrovich's basic defense was that
the sexual contact had not occurred C that V.J. was not telling
the truth. However, as an alternative position, Peratrovich
contended that if he touched V.J.'s breasts, it was not for any
sexual purpose but only in fulfillment of his role as V.J.'s
caretaker, trying to explain her grandmother's illness.
The definition of "sexual contact" contains an
exception for touchings "that may reasonably be construed to be
normal caretaker responsibilities for a child, interactions with
a child, or affection for a child". See AS
11.81.900(b)(53)(B)(i). The jury was instructed on this
exception. By returning its guilty verdict, the jury in
Peratrovich's case impliedly found, beyond a reasonable doubt,
that Peratrovich's touching of V.J.'s breasts could not
reasonably be construed as part of normal caretaker
responsibilities.
On appeal, Peratrovich argues that the meaning of the
phrase "normal caretaker responsibilities" is unconstitutionally
vague. He contends that the word "normal" fails to specify a
reasonably ascertainable standard of conduct because people will
have different definitions of what is normal. Peratrovich relies
on Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D.Pa.
1975), in which the court struck down an ordinance that
established a nighttime curfew for minors unless the minor had
obtained a permit from the mayor for "normal or necessary
nighttime activities". Id. at 1247. The federal court held that
the ordinance was unconstitutionally vague because the use of the
word "normal" placed unfettered discretion in the hands of the
mayor. Id. at 1250.
However, the question is not what "normal" might mean
in the abstract. The word must be interpreted in context. For
example, even though the Bykofsky court decided that the phrase
"normal ... nighttime activities" was too vague, the court upheld
the constitutionality of other curfew provisions dealing with
"normal travel" along "normal routes". Thus, to decide the
constitutionality of Alaska's definition of "sexual contact", we
must examine the meaning of the phrase "normal caretaker
responsibilities" in the context of a statutory scheme that
generally forbids sexual contact with minors.
Because "normal caretaker responsibilities" are an
exception to the general definition of "sexual contact", any
question concerning the scope of "normal caretaker
responsibilities" arises only if the jury first finds, beyond a
reasonable doubt, that the defendant knowingly touched the
minor's genitals, anus, or female breast. After the State proves
the elements of sexual contact, then the exception for "normal
caretaker responsibilities" operates as a "defense" (as defined
in AS 11.81.900(b)(15)) to the crime. As stated in the
legislative commentary to the definition of "sexual contact":
The legislature intends that the
exceptions listed in revised AS 11.81.900(b)
[(53)](B) ... shall not be part of the
prosecution's pleading and proof in its case
in chief. Rather, these exceptions must be
raised by the defendant. If raised, the
prosecution bears the burden of disproving
the exception beyond a reasonable doubt. The
legislature intends that the exceptions
operate as other defenses provided for in the
criminal code. See AS 11.81.900(b)(15).
1984 Senate Journal, p. 3388 (emphasis in original).
If the State proves that the defendant engaged in
sexual contact with a minor, and if the defendant asserts the
defense of "normal caretaker responsibilities", the statute
directs the jurors to decide whether the defendant's act "may
reasonably be construed to be normal caretaker responsibilities".
(Emphasis added.) In other words, the jurors are not asked to
decide whether they personally feel that the defendant's act was
part of "normal caretaker responsibilities", but rather whether
the defendant's acts might be construed as normal caretaking by a
reasonable person. The defendant is to be acquitted unless the
jurors conclude that no reasonable person would construe the
defendant's act as normal caretaking.
Measuring the defendant's actions against what a
reasonable person would deem necessary or proper in a given
situation is a familiar legal standard. It is used, for example,
to evaluate claims of self-defense and necessity. See AS 11.81.
330(a); AS 11.81.320 and Cleveland v. Anchorage, 631 P.2d 1073,
1078-79 (Alaska 1981). By incorporating a standard of reasonable
ness, our law necessarily accepts the consequent fact that the
lawfulness of a defendant's actions may not be capable of precise
assessment in advance. As Justice Holmes said in Nash v. United
States, 229 U.S. 373, 377; 33 S.Ct. 780, 781; 57 L.Ed. 1232
(1913):
[T]he law is full of instances where a man's
fate depends on his estimating rightly [C]
that is, as the jury subsequently estimates
it [C] some matter of degree. ... [For
example,] [a]n act causing death may be
murder, manslaughter, or misadventure,
according to the degree of danger attending
it by common experience in the circumstances
known to the actor.
Thus, some degree of imprecision inevitably attends the use of a
"reasonableness" standard.
When a statute is challenged as unconstitutionally
vague, one important consideration is whether the definition is
worded as explicitly as possible to achieve the legislative
purposes. United States v. Petrillo, 332 U.S. 1, 6-7; 67 S.Ct.
1538, 1541; 91 L.Ed. 1877, 1882 (1947). The Constitution does
not require impossible exactitude. As noted by Justice
Frankfurter, dissenting in Winters v. New York, 333 U.S. 507, 524-
25; 68 S.Ct. 665, 674; 92 L.Ed. 840 (1948),
[W]hether [a statute's] notice is or is not
"fair" depends upon the subject matter to
which it relates. Unlike the abstract stuff
of mathematics, or the quantitatively
ascertainable elements of much of natural
science, legislation is ... concerned with
the multiform psychological complexities of
individual and social conduct.
Or, as stated more recently by Justice Marshall in Grayned v.
City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222
(1972), lawmakers are "[c]ondemned to the use of words", and for
this reason courts can not expect statutes to display
"mathematical certainty". The Constitution does not require
"meticulous specificity" in the wording of statutes; rather,
statutory language can incorporate "flexibility and reasonable
breadth". 408 U.S. at 110, 92 S.Ct. at 2300.
For example, in Grayned the Supreme Court upheld an
ordinance forbidding people from making any noise or diversion
that "disturbs or tends to disturb the peace or good order" of a
school session or class. Id., 408 U.S. at 107-08, 92 S.Ct. at
2298. The Court concluded:
[I]t is apparent from the statute's announced
purpose that the measure [of criminality] is
whether normal school activity has been or is
about to be disrupted. We do not have here a
vague, general "breach of the peace"
ordinance, but a statute written specifically
for the school context, where the prohibited
disturbances are easily measured by their
impact on the normal activities of the
school. Given this "particular context," the
ordinance gives "fair notice to those to whom
[it] is directed."
Grayned, 408 U.S. at 112, 92 S.Ct. at 2301 (quoting American
Communications Assn. v. Douds, 339 U.S. 382, 412; 70 S.Ct. 674,
691; 94 L.Ed. 9235 (1950)).
The "particular context" in Peratrovich's case is a
statutory scheme that regulates (and generally prohibits) sexual
contact with minors. In AS 11.81.900(b)(53)(B), the Alaska Legis
lature declared that even when the State proves that the
defendant knowingly engaged in sexual contact with a minor, this
contact will not be criminal if the contact might reasonably be
construed as part of normal caretaker responsibilities.
The problem facing the drafters of this statutory
language was that there is a range of situations in which sexual
contact with a minor might reasonably be construed as justified.
As this court recognized in Van Meter v. State, 743 P.2d 385, 391
(Alaska App. 1987), "the legislature ... responded to the problem
of differentiating between a wide variety of innocent touchings"
when it enacted the exceptions listed in AS 11.81.900(b)(53)(B).
It is difficult to perceive how the legislature might have been
more precise in describing the types of sexual contact that
adults should be allowed to have with minors.
Peratrovich suggests that an alternative solution to
the problem would be to return to former law, when "sexual
contact" required proof of the defendant's intent to obtain
sexual gratification. See Flink v. State, 683 P.2d 725 (Alaska
App. 1984). However, such a statute would not achieve the same
legislative purposes as current AS 11.81.900(b)(53).
The disturbing truth is that some criminal defendants
will try to justify a wide variety of exploitative, degrading, or
violent sexual activity with minors by claiming that the activity
was intended as a form of sex education or other "normal ...
interaction with a child", and not as a way to obtain sexual
gratification. For example, in S.B. v. State, 706 P.2d 695
(Alaska App. 1985), the defendant engaged in multiple acts of
sexual penetration and contact with his seven-year-old daughter.
A psychologist who evaluated the defendant declared that it was
quite possible that the defendant had no conscious sexual
motivation for these acts:
[I]t is possible that Mr. B. acted out of a
set of sexual feelings with respect to his
daughter that he was not consciously aware of
and is presently denying. It is ... also
possible that Mr. B. [subjectively believed]
that he could provide [sexual education] to
his daughter and actually did not believe
himself to be sexually molesting her as he
demonstrated sexual functioning to her.
S.B., 706 P.2d at 697. See also Potts v. State, 712 P.2d 385,
387 (Alaska App. 1985), in which the defendant claimed that his
acts of sexual contact with his nine-year-old daughter "were
intended only to satisfy [the daughter's] natural curiosity about
sex" and were "educational in nature".
Because, depending upon the psychology of the offender,
it may be impossible to prove beyond a reasonable doubt that the
defendant's acts of sexual abuse were motivated by a conscious
intent to obtain sexual arousal or gratification, the American
Bar Association's National Legal Resource Center for Child
Advocacy and Protection recommended that child sexual abuse
statutes be drafted as general intent crimes with exceptions for
particular types of sexual touching. In Recommendation 1.6 of
its Recommendations for Improving Legal Intervention in
IntraFamily Child Sexual Abuse Cases (1982), the National
Resource Center advocated a statute much like Alaska's:
The following acts should constitute
sexual abuse of a child:
. . . .
(4) the intentional touching of the
genitals or intimate parts (including the
breasts, genital area, groin, inner thighs,
and buttocks) or the clothing covering them,
of either the child or the perpetrator,
EXCEPT that, it shall not include:
(a) acts which may reasonably be
construed to be normal caretaker
responsibilities, interactions with, or
affection for a child; or
(b) acts intended for a valid medical
purpose[.]
Id. at 13-14. The commentary to this proposal states, in
relevant part:
It ... was decided that for acts
involving sexual touching [Section (4)], the
intent or purpose of the touching would not
be included [as an element of the crime].
One reason for this choice is that the
motivation for committing sex offenses varies
widely and may encompass some purpose which
would not be stated. Further, it was felt
that a more logical method was to include
language as to what contact should be
exempted from inclusion in the definition.
The reasoning is that prosecutors should not
have to prove as an element of the crime the
perpetrator's intent or purpose when he
sexually touches a child. Thus, language
often used in statutes such as "for the
purpose of sexual arousal or gratification,"
or other similar purpose is not included as
an essential element of the crime.
Some reform statutes have dealt with the
above problem by stating that the touching
must be intentional, and "for the purpose of
sexual arousal or gratificaton."
[Alternatively], some statutes use language
that the touching must be "reasonably
construed as being for the purpose of sexual
arousal or gratification." One court's
interpretation of the latter terminology is
that it be "read as a substantial lessening
of the prosecutor's burden of proof; the
touching must be intentional but the actor's
purpose need not be proven to the jury. On
the contrary, the jury may find that the
actor's actual purpose was other than sexual
gratification, e.g., anger [or] revenge, but
still find that sexual contact had taken
place." Indeed, one court stated that such
language is included in the statute "in order
to exclude from its coverage affectionate
caresses of a child." Since this appears to
be the legislative intent in using "for the
purpose of" language, it was felt that a
better approach is to specifically state the
exclusion, and place the burden on the
defendants to prove that the acts did not
have a sexual purpose.
Id. at 15-16 (footnotes omitted). (Quoted in Flink v. State, 683
P.2d at 731-32.)
In Flink, this court ruled that Alaska's prior
definition of "sexual contact" impliedly contained the
requirement that the defendant act with the specific intent of
achieving sexual arousal or gratification. 683 P.2d at 733.
Alaska's current definition of "sexual contact" represents the
legislature's response to Flink:
In passing [current AS
11.81.900(b)(53)], the legislature intends to
change the result reached by the Alaska Court
of Appeals in Flink v. State[.] In the Flink
case, the court ruled that the legislature
intended that crimes involving sexual contact
be specific intent crimes. ... In adopting
[this new definition of "sexual contact"],
the legislature intends to reaffirm that
crimes involving sexual contact and
penetration are general intent crimes.
1984 Senate Journal, pp. 3387-88.
While the legislative commentary does not explicitly
refer to the ABA National Resource Center's recommendations, the
language of AS 11.81.900(b)(53)(B) appears to be based on the
ABA's proposed statute. In particular, we note that the wording
of the statutory exception for acts of sexual contact that "may
reasonably be construed to be normal caretaker responsibilities"
for a child, or "interactions with" a child, or "affection for a
child" is taken directly from the ABA recommendations C thus
indicating that the Alaska Legislature shared the ABA's concerns
about the potential problems of a "specific intent" formulation.
From the foregoing discussion, it is clear that the
legislature has a legitimate interest in prohibiting certain
types of sexual contact with minors even when it can not be
proved that the defendant acted with the conscious intent of
achieving sexual arousal or gratification. The wording of
current AS 11.81.900(b)(53) C that is, a general definition of
the prohibited contact, accompanied by a list of the categories
of sexual contact that are permitted C is a reasoned response to
the definitional problem confronting the legislature. We note,
moreover, that if a jury has a reasonable doubt as to whether a
defendant's conduct fits within one of the exceptions, the
defendant is to be acquitted. See AS 11.81.900(b)(15). For
these reasons, we uphold the constitutionality of the definition
of "sexual contact" C and, specifically, the portion of the
definition that exempts sexual contacts that "[might] reasonably
be construed to be normal caretaker responsibilities".
See Matter of Appeal in Maricopa County, 692 P.2d 1027,
1034-35 (Ariz. App. 1984) (upholding the constitutionality of the
phrase "parental responsibilities" in a child welfare statute);
In re Aschauer's Welfare, 611 P.2d 1245, 1249-1250 (Wash. 1980)
(holding that the phrases "proper parental control" and "proper
maintenance, training and education", when evaluated in the
entire context of Washington's child welfare laws, were not
unconstitutionally vague); In the Interest of Brooks, 618 P.2d
814, 817-820 (Kan. 1980) (upholding the constitutionality of
"unfit" in a statute allowing termination of parental rights).
See also State v. Mills, 629 P.2d 861 (Or. App. 1981) (upholding
the constitutionality of the phrase "leaves the child unattended
... for such period of time as may be likely to endanger the
health or welfare of such child" in the Oregon child neglect
statute).
We additionally note that, even if there are difficult
cases at the outer limits of what might reasonably be construed
to be "normal caretaker responsibilities", Peratrovich's conduct
falls within the core of the conduct prohibited by the sexual
abuse of a minor statutes. See Holton v. State, 602 P.2d 1228,
1236-37 (Alaska 1979). Peratrovich claims that it was his
"responsibility" as a "caretaker" to touch his teenage
stepgranddaughter's breast, against her will, to illustrate where
the girl's grandmother's tumors might be. This claim is
implausible on its face.
We therefore reject Peratrovich's attack on the
statutory definition of "sexual contact", and we uphold his
conviction for third-degree sexual abuse of a minor. We now turn
to Peratrovich's attacks on his sentence.
Sentencing Issues
At sentencing, Judge Thompson noted that Peratrovich's
victim was "dreadfully disturbed" over the sexual abuse. When
the judge announced the sentence, he ordered Peratrovich to "pay
[any] counseling costs of the victim ... to the extent that she
expends monies for counseling" up to a maximum of $5000. On
appeal, Peratrovich argues that Judge Thompson failed to inquire
into Peratrovich's ability to pay this amount of money.
We see a more fundamental problem with the restitution
order. Under AS 12.55.045(a), a sentencing court may order the
defendant to pay "restitution to the victim or ... to a public,
private, or private nonprofit organization that has provided or
is or will be providing counseling ... services to the victim".
It seems apparent that, under this statute, a defendant may be
required to compensate the victim for future counseling expenses.
Nevertheless, this court has repeatedly held that a restitution
order must be based on substantial evidence of monetary loss or
expense, not mere speculation. Noffsinger v. State, 850 P.2d
647, 650 (Alaska App. 1993); Harris v. State, 678 P.2d 397, 408
(Alaska App. 1984), rev'd on other grounds sub nom., Stephan v.
State, 711 P.2d 1156 (Alaska 1985).
More particularly, in Lawrence v. State, 764 P.2d 318,
322 (Alaska App. 1988), this court disapproved an award for
future counseling expenses that was made in the absence of
evidence firmly establishing the need for and the amount of such
expenses. Compare Reece v. State, 881 P.2d 1135, 1138 (Alaska
App. 1994), hrg granted (February 17, 1995), where this court
upheld an order requiring the defendant to make restitution for
future counseling when the need for counseling and the cost of
counseling were adequately established in the sentencing record.
In Peratrovich's case, despite Judge Thompson's surmise
that the victim might need counseling, the sentencing record
contains no evidence that the victim will undergo counseling, nor
does it contain any evidence concerning the duration or cost of
such counseling. We therefore conclude that the present record
does not support the restitution order, and we vacate that
portion of the sentence. We remand this issue to the superior
court. If, on remand, there is evidence that more firmly
establishes (1) that the victim will seek counseling, and (2) the
expected cost of such counseling, then Judge Thompson may wish to
revisit the issue of restitution.
As an additional condition of Peratrovich's sentence,
Judge Thompson ordered Peratrovich not to return to Prince of
Wales Island (the site of the offense):
I'll order that, during the period of
probation, you not return to Prince of Wales.
I sort of hate to do that; I hate to exile
you from there. But if you think about this
realistically, I don't think you want to go
back over there right now anyway. It would
not be good for anybody in this case, and I
think it would be masochistic for you to
attempt to return there at this point. Maybe
five years from now, maybe things will be
different. But [for] right now, stay away
from there.
The written judgement does not faithfully incorporate Judge
Thompson's oral order. Rather, according to the written
judgement, Peratrovich may return to Prince of Wales Island if he
obtains the written permission of his probation officer. The
record does not disclose whether this variance is a clerical
error or instead manifests Judge Thompson's decision to alter his
original order.
As noted above, Peratrovich's home is in Klawock.
However, at the time of the sentencing hearing Peratrovich and
his wife were living in Ketchikan so that Mrs. Peratrovich could
be closer to medical facilities.
Judge Thompson forthrightly categorized his order as
Peratrovich's "exile" from Prince of Wales Island. Because this
condition of probation bars Peratrovich from returning to his
residence in Klawock, it affects Peratrovich's basic rights of
property, travel, and association. Before Judge Thompson could
forbid Peratrovich from returning to his home, the judge was
obligated to affirmatively consider and have good reason for
rejecting lesser restrictions (such as forbidding Peratrovich to
be in the company of minors without independent adult
supervision). See Dawson v. State, 894 P.2d 672, 680-81 (Alaska
App. 1995) (a probation condition denying defendant any
unsupervised association with his wife was unduly restrictive of
his liberty). We therefore vacate this condition of
Peratrovich's probation and remand this issue to Judge Thompson
for his reconsideration.
Conclusion
Peratrovich's conviction for third-degree sexual abuse
of a minor is AFFIRMED. The two challenged provisions of his
sentence are VACATED; this case is REMANDED to the superior court
so that the court can reconsider the restitution order and the
probation condition barring Peratrovich from returning to Prince
of Wales Island.
