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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JEREMY TODD ANDERSON,
Court of Appeals No. A-13676
Appellant, Trial Court No. 3KN- 14-00665 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2774 - March 29, 2024
Appeal from the Superior Court, Third Judicial District, Kenai,
Jennifer K. Wells, Judge.
Appearances: Jane B. Martinez, Law Office of Jane B.
Martinez, LLC, under contract with the Public Defender
Agency, and Samantha Cherot, Public Defender, Anchorage,
for the Appellant. Madison M. Mitchell, Assistant Attorney
General, Office of Criminal Appeals, Anchorage, and Treg R.
Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.
This case is before us a second time, now on Jeremy Todd Anderson's
direct appeal of his sentence. Pursuant to a plea agreement with the State, Anderson
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1
was convicted of one consolidated count of second-degree sexual abuse of a minor. He
now appeals various aspects of his sentence - namely the sentencing court's finding
that his offense constitutes a "crime involving domestic violence" and the court's
imposition of several probation conditions. For the reasons discussed in this appeal, we
affirm the superior court's designation of Anderson's offense as a "crime involving
domestic violence," but we remand for reconsideration of several probation conditions.
Background facts and proceedings
On May 8, 2014, fifteen-year-old K.H. reported to one of her high school
teachers that she had been having an ongoing sexual relationship with her music
teacher, Jeremy Anderson, since February of that year. The troopers were contacted,
and an investigation ensued. Based on the results of that investigation, Anderson was
indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of
2
second-degree sexual abuse of a minor.
At the grand jury proceeding, K.H. testified regarding the nature and
frequency of her sexual encounters with Anderson. K.H. testified that Anderson had
started acting flirtatiously towards her in December 2013. Anderson's "flirtation"
continued, and the pair engaged in penetrative sexual activity for the first time in
February 2014. K.H. testified that they engaged in such sexual activity around twenty
to thirty times between February 2014 and early May 2014. The sex occurred on school
grounds, generally in the choir room closet or the band room closet. Even though K.H.
was below the age of sexual consent under Alaska law, she testified that she personally
viewed the sex acts as "consensual." She testified that the last time she and Anderson
had sex, she told him she did not want to because she felt guilty, but Anderson pressured
1 AS 11.41.436(a)(1).
2 AS 11.41.434(a)(3)(B) and AS 11.41.436(a)(5)(B), respectively.
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her to have sex with him despite her initial unwillingness. (The later presentence report,
which was based on K.H.'s investigative interview at the child advocacy center,
contained additional indications that K.H. viewed the sex as coercive.)
During the pretrial proceedings, it became clear that the State intended to
introduce various admissions of wrongdoing that Anderson had made to his wife,
Jennifer Anderson, during the course of the investigation. In response, Anderson
asserted his marital communications privilege under Alaska Evidence Rule 505(b) to
3
exclude evidence of any confidential communications between himself and his wife.
Jennifer Anderson also asserted her spousal immunity privilege under Evidence Rule
505(a), and she separately asserted her own marital communications privilege under
4
Evidence Rule 505(b).
The superior court rejected these assertions of privilege. The court
concluded that neither marital privilege applied at Anderson's trial because his alleged
sexual abuse of K.H. was a "crime involving domestic violence," an express exception
to the invocation of the privilege in a criminal proceeding.5 We affirmed the superior
6
court's decision on interlocutory review, as we explain in more detail below.
Anderson subsequently entered into a plea agreement with the State.
Under the terms of the agreement, Anderson pleaded guilty to one consolidated count
of second-degree sexual abuse of a minor.7 He also agreed to a sentence of 30 years
3 Alaska R. Evid. 505(b).
4 Alaska R. Evid. 505(a)-(b).
5 Alaska R. Evid. 505(a)(2)(D)(v), (b)(2)(a).
6 Anderson v. State , 436 P.3d 1071, 1077, 1080 (Alaska App. 2018).
7 AS 11.41.436(a)(1) ("An offender commits the crime of sexual abuse of a minor in
the second degree if, . . . being 17 years of age or older, the offender engages in sexual
penetration with a person who is 13, 14, or 15 years of age and at least four years younger
than the offender[.]").
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8
with 10 years suspended and a 15-year term of probation. The probation conditions
were left open to the court.
The presentence report included a factual narrative of Anderson's offense,
designated it a crime involving domestic violence, and proposed twenty-six special
probation conditions. In a sentencing memorandum, Anderson objected to the domestic
violence designation. Anderson separately filed several objections to the proposed
probation conditions.
At sentencing, the superior court imposed the agreed-upon sentence. The
court modified several probation conditions in response to Anderson's objections but
left the domestic violence designation in place.
Anderson now appeals the designation of his crime as a "crime involving
domestic violence" in the presentence report and judgment. He also challenges several
probation conditions.
Our decision in Anderson v. State
In Anderson v. State (Anderson I), this Court upheld the superior court's
determination that Anderson and his wife could not invoke the marital privilege
exception at trial because Anderson's alleged crime was a "crime involving domestic
violence" as that term is defined in AS 18.66.990(3) and (5).9 Because Anderson asks
us to overturn that holding, we explain our decision in Anderson I in more detail.
8 Anderson agreed to three aggravating factors: that his conduct was among the most
serious included within the definition of the offense (AS 12.55.155(c)(10)); that he was
convicted of sexual abuse of a minor and was 10 or more years older than K.H.
(AS 12.55.155(c)(18)(E)); and that the offense was a crime against the person and occurred
on school grounds (AS 12.55.155(c)(32)). As part of his plea agreement, Anderson waived
his right to a jury trial on these aggravating factors under Blakely v. Washington, 542 U.S.
296 (2004).
9 Anderson , 436 P.3d at 1077-80.
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In the litigation leading up to our decision in Anderson I , both Anderson
and his wife attempted to invoke one or both of the marital privileges codified in
Evidence Rule 505(a) (the spousal immunity privilege) and 505(b) (the confidential
marital communications privilege). 10 The superior court rejected these attempts on the
grounds that the evidence rules prohibit application of either privilege in a criminal
proceeding in which one spouse is charged with a crime involving domestic violence,
and that Anderson's alleged offense was a crime involving domestic violence as defined
11
in AS 18.66.990.
Alaska Statute 18.66.990(3) defines a "crime involving domestic
violence" as including any crime against a person under AS 11.41 (which includes
sexual abuse of a minor) if the crime is committed by one "household member" against
another "household member."12 Alaska Statute 18.66.990(5)(C) and (D) define
"household member" to include "adults or minors who are dating or who have dated,"
as well as "adults or minors who are engaged in or who have engaged in a sexual
relationship."
Based on K.H.'s grand jury testimony, the superior court ruled that
Anderson and K.H. qualified as "household members" under AS 18.66.990(5)(C) and
(D) because they had been engaged in a "sexual relationship" and had been "dating" for
several months. The court therefore concluded that Anderson's alleged sexual abuse of
K.H. constituted "crimes involving domestic violence" for purposes of precluding the
use of either marital privilege at Anderson's criminal trial.
10 Id. at 1074; see also Alaska R. Evid. 505(a)(1) ("A spouse shall not be examined
for or against the other spouse without the consent of the spouse to be examined."); Alaska
R. Evid. 505(b)(1) ("Neither during the marriage nor afterwards shall either spouse be
examined as to any confidential communications made by one spouse to the other during
the marriage, without the consent of the other spouse.").
11 Anderson , 436 P.3d at 1076; see also Alaska R. Evid. 505(a)(2)(D)(v), (b)(2)(A).
12 AS 18.66.990(3)(A); see also 11.41.436(a)(1).
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The superior court's rulings originally applied only to Anderson, because
he was the first to raise the privilege issue. After the superior court denied his motion,
Anderson petitioned this Court for review. We declined to exercise our power of
discretionary review because the case was pending trial and Anderson had adequately
preserved the issue for any future appeal.
Following our denial, however, Jennifer Anderson filed her own motion
in the superior court asserting marital privilege. After the superior court rejected
Jennifer Anderson's motion, she petitioned this Court for review. We granted review
because we recognized that Jennifer Anderson's rights as a witness-spouse could be
13
adversely affected if we denied interlocutory review of her claim.
As we explained in Anderson I , "K.H.'s grand jury testimony [made] clear
that, from K.H.'s perspective at least, she was engaged in a sexual or dating relationship
with Anderson - a relationship that spanned many months and involved multiple
intimate encounters, not all of which were sexual in nature."14 In other words, there was
no dispute in Anderson I that if K.H. had been an adult, her relationship with Anderson
would qualify as dating or a sexual relationship for purposes of AS 18.66.990(5).
But Jennifer Anderson argued that K.H. and Anderson were not dating or
in a sexual relationship for purposes of AS 18.66.990(5) "because K.H. could not
lawfully be in a sexual relationship with Anderson given their respective ages."15 We
rejected this argument for three main reasons. First, we explained that the underlying
legislative intent of the 1996 legislation establishing the definition of a crime involving
domestic violence "was to broaden the definition of domestic violence so as to ensure
legal protections to all persons who were rendered particularly vulnerable by virtue of
13 Anderson , 436 P.3d at 1077.
14 Id. at 1078.
15 Id. at 1079.
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----------------------- Page 7-----------------------
their intimate relationship with their abuser." 16 Second, we noted that the legislature
defined "household member" to include "adults or minors who are engaged in or who
have engaged in a sexual relationship" - thereby suggesting that "a relationship
between an adult and a minor can exist for purposes of extending legal protections to
those minors."17 And third, we were guided by the principle that because the marital
privileges operate "to impede the normal truth-seeking function of court proceedings,
18
they must be 'strictly construed' by the courts."
Judge Mannheimer dissented, arguing that because the law does not
recognize a child's ability to consent to sexual activity with an adult, a child cannot be
in a "sexual relationship" with an adult as a matter of law.19 Judge Mannheimer asserted
that this Court's reasoning "implicitly rest[ed] on the notion that some children have
the intellectual and emotional maturity to make a meaningful decision about [whether
20
to engage in a sexual relationship with an adult]."
16 Id. ; see also SLA 1996, ch. 64, § 33; Sponsor Statement from Representative Sean
R. Parnell, regarding House Bill 314 (Feb. 12, 1996).
17 Anderson , 436 P.3d at 1079. We note that there are other "household member"
definitions that are structured similarly and that clearly apply to adults and minors in
relationship to one another. See, e.g., AS 18.66.990(5)(E) ("'[H]ousehold member'
includes . . . adults or minors who are related to each other up to the fourth degree of
consanguinity."); AS 18.66.990(5)(F) ("'[H]ousehold member' includes . . . adults or
minors who are related or formerly related by marriage.").
18 Anderson , 436 P.3d at 1075 (citing Daniels v. State, 681 P.2d 341, 344 (Alaska App.
1984)).
19 Id. at 1081 (Mannheimer, C.J., dissenting).
20 Id.
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Why Anderson I was correctly decided
In this appeal, Anderson seeks to relitigate the same issue we decided in
Anderson I , albeit in a slightly different context. Alaska Criminal Rule 32(e) provides
that if the prosecution claims at sentencing that the defendant was convicted of a "crime
involving domestic violence," as defined by AS 18.66.990(3) and (5), the written
judgment must "set forth whether the offense is a crime involving domestic violence"
and "[a] factual and legal determination supporting this finding must be made on the
21
record."
After receiving the presentence report, which stated that Anderson's crime
was a crime involving domestic violence, Anderson's attorney objected to the
designation. The sentencing court, relying on our decision in Anderson I , rejected
Anderson's argument and included the domestic violence demarcation on the judgment.
Anderson now appeals the superior court's decision to demarcate his
crime as one of "domestic violence" in the presentence report and the judgment , arguing
that a minor cannot legally engage in sexual activity with an adult, and therefore cannot
be in a sexual relationship with an adult for purposes of AS 18.66.990(5). Although
Anderson attempts to distinguish the present appeal from Anderson I on the grounds
that it involves Alaska Criminal Rule 32(e), rather than the marital privilege exceptions
contained in Evidence Rule 505, both rules rely on the same definitions provided in
AS 18.66.990(5), and thus the issue Anderson raises is the same issue we already
22
decided in Anderson I .
21 Alaska R. Crim. P. 32(e).
22 Id. Criminal Rule 32(e) provides:
Judgment for Crimes Involving Domestic Violence. In a case in which the
defendant is convicted of an offense listed in AS 18.66.990(3) and the
prosecution claims at sentencing that the offense is a crime involving
domestic violence, the written judgment must set forth whether the offense
is a crime involving domestic violence as defined in AS 18.66.990(3) and
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----------------------- Page 9-----------------------
Under the doctrine of stare decisis, an appellate court will overrule one of
its prior decisions only when (1) the court is "clearly convinced that [its decision] was
originally erroneous," or (2) the court is convinced that its prior decision "is no longer
sound because of changed conditions, and that more good than harm would result from
23
a departure from precedent."
Anderson has not addressed the doctrine of stare decisis in his appellate
briefing.24 We acknowledge, however, that we denied Anderson's original request for
interlocutory review "because Mr. Anderson had adequately preserved the issue for any
25
future appeal should this ruling materially affect the resolution of his criminal case."
We granted review only when it was requested by Jennifer Anderson, and Anderson
did not file any appellate briefing in that case. Although this procedural history does
not excuse Anderson's failure to address the doctrine of stare decisis in the present
appeal, which applies regardless of whether the current litigant was a party to the past
litigation, we cannot ignore the obvious unfairness that would result if we refused to
consider arguments we previously deemed "adequately preserved . . . for any future
appeal." We therefore take the time to address Anderson's arguments and to explain in
more detail why Anderson I was correctly decided.
Anderson's primary argument on appeal is the same one articulated by
Judge Mannheimer's dissenting opinion in Anderson I : that because a child cannot
(5). A factual and legal determination supporting this finding must be made
on the record.
23 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996) (quoting State v. Dunlop, 721
P.2d 604, 610 (Alaska 1986)).
24 See State v. David N.J., 19 A.3d 646, 669 n.34 (Conn. 2011) (declining to consider
defendant's arguments that a prior case was wrongly decided "in the absence of adequate
briefing addressing the stare decisis considerations attendant to overruling" that case).
25 Anderson , 436 P.3d at 1076.
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legally consent to sexual activity with an adult, a child and an adult cannot be in a
26
"sexual relationship" for purposes of AS 18.66.990(5).
We agree with Anderson that the phrase "sexual relationship" as used in
AS 18.66.990(5) implies the existence of consent.27 As the dissent pointed out in
Anderson I, it would obviously be wrong to say that two people are in a "sexual
relationship" when a man has held a woman captive and sexually assaulted her
28
repeatedly over a number of days.
The problem with this analogy, however, is that K.H. was not held captive.
Rather, K.H. testified at the grand jury that she viewed all but her last interaction with
Anderson as "consensual." K.H.'s subjective belief that she was consenting is, of
course, irrelevant for purposes of determining whether Anderson committed the crime
of sexual abuse of a minor.29 But courts have often drawn a distinction between "legal"
consent and "factual" (or "actual") consent: legal consent refers to whether the law
recognizes the victim's ability to consent to sexual activity; factual consent refers to
whether the victim subjectively believes they are consenting.
For example, the Supreme Court of Illinois has explained that, "[a]lthough
juveniles may factually consent to intercourse, the law . . . treats them as incapable of
giving legal consent."30 Indeed, this Court itself has previously acknowledged this
26 Id. at 1081 (Mannheimer, C.J., dissenting).
27 Id. at 1083.
28 Id. at 1082.
29 See State v. Jackson, 776 P.2d 320, 328 (Alaska App. 1989) ("It is precisely because
the law deems children to be incapable of rendering meaningful consent in such situations
that the offense [of statutory rape] has been defined to make consent irrelevant.").
30 People v. Lloyd, 987 N.E.2d 386, 392 (Ill. 2013) (alteration in original) (quoting
Russell L. Christopher & Kathryn H. Christopher, The Paradox of Statutory Rape, 87 Ind.
L.J. 505, 515 (2012)).
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----------------------- Page 11-----------------------
distinction, explaining that although the law provides that a minor cannot legally
consent to sex with an adult, cases of statutory rape can "involve[] mutually consensual
conduct."31 Similarly, we have noted that "[s]exual penetration or sexual contact with
a minor under the age of 16 is unlawful even if the minor initiates the sexual act and
32
fully consents to it."
Federal courts have addressed this question most directly in the context of
determining whether state convictions for statutory rape constitute a "crime of violence"
for purposes of federal sentencing law. Discussing this topic, the Fifth Circuit wrote
that "a 16 year old female can consent factually - if not legally - to sexual contact,
33
thereby diminishing the likelihood that the offense will cause serious physical injury."
The Tenth Circuit similarly explained, "The absence of legal consent does not preclude
the possibility, in the context of statutory rape, of factual consent."34 And the Ninth
Circuit held that although "the 'non-consent of the victim' is the 'touchstone' for
[determining whether the defendant's crime was a crime of violence], it is the victim's
35
actual non-consent that counts."
31 Jackson , 776 P.2d at 328.
32 Miller v. State , 44 P.3d 157, 159 (Alaska App. 2002).
33 United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004).
34 United States v. Wray, 776 F.3d 1182, 1188 (10th Cir. 2015).
35 Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006); see also Xiong v. INS,
173 F.3d 601, 605-07 (7th Cir. 1999). We acknowledge that other federal circuit courts
reached the opposite conclusion, holding that statutory rape is a "crime of violence." With
the exception of one circuit, however, the question of whether statutory rape was a crime
of violence did not turn on the absence of the victim's legal consent. Instead, the courts
reasoned that the inherent power imbalance between the child victim and the adult
perpetrator created a substantial risk of physical force. See Chery v. Ashcroft, 347 F.3d 404,
407-09 (2d Cir. 2003); United States v. Velazquez-Overa, 100 F.3d 418, 421-23 (5th Cir.
1996); United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992); United States v.
Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993); Ramsey v. INS , 55 F.3d 580, 583 (11th
Cir. 1995). But see Aguiar v. Gonzales , 438 F.3d 86, 90 (1st Cir. 2006) (holding that
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----------------------- Page 12-----------------------
None of the cases cited above cast doubt upon the rule that a child cannot
legally consent to sexual activity with an adult. What the cases make clear instead is
that a child's subjective consent may nonetheless be relevant to other legal questions.
As we held in Anderson I , a child's subjective consent is relevant to determining the
existence of a dating or sexual relationship because the legislature's underlying intent
in enacting the domestic violence moniker was "to broaden the definition of domestic
violence so as to ensure legal protections to all persons who were rendered particularly
36
vulnerable by virtue of their intimate relationship with their abuser."
We think it clear that a child who believes they are in a consensual dating
or sexual relationship with an adult is "rendered particularly vulnerable by virtue of
their intimate relationship with their abuser."37 Such a victim may become reliant on
their abuser for financial and emotional support; may disclose intimate details about
their personal life; may become invested in the continuance of the relationship; and may
distance themselves from their existing support structure - all of which may make it
more difficult for the victim to disclose the abuse to family, friends, or law enforcement
officers. The fact that the minor cannot legally consent to the underlying sexual activity
does not change the relationship's impact on the minor's life.
Anderson does not explain why his chosen definition of consent - i.e.,
legal consent - would be consistent with the legislative intent of protecting particularly
vulnerable victims. Instead, Anderson repeats the assertion in Judge Mannheimer's
dissent in Anderson I that our reasoning "implicitly rests on the notion that some
statutory rape is a "crime of violence" and explaining that its reasoning was based
"primarily on the fact that, under the statute, a victim cannot legally consent to the
prohibited conduct").
36 Anderson v. State , 436 P.3d 1071, 1079 (Alaska App. 2018).
37 See id.
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children have the intellectual and emotional maturity to make a meaningful decision
38
about [engaging in sexual activity with an adult]."
This is not true. We have never suggested that children possess the
intellectual and emotional maturity to make a meaningful decision about engaging in
sexual activity with an adult. Our reasoning rests instead on the well-established fact
that some children do make decisions about engaging in sexual activity with adults,
even when they lack the intellectual and emotional maturity to do so, and on the sound
policy judgment that a child who makes such a decision should be entitled to the same
protections as an adult.
For all these reasons, we reject Anderson's request that we overturn
39
Anderson I .
We note that Anderson also argues that designating his conviction as a
crime involving domestic violence on his judgment and presentence report "will
mislead persons reading the document to believe this was a different sort of offense and
may result in any number of misunderstandings and missed opportunities for
rehabilitation." Anderson further asserts that "it may be impossible for [him] to
38 Id. at 1081 (Mannheimer, C.J., dissenting).
39 Our decision in Anderson I was based on K.H.'s grand jury testimony. In his
appellate brief, Anderson criticizes the superior court for not allowing the record to be
further developed on remand. He notes that he requested an evidentiary hearing on this
issue, and that the superior court denied it. To the extent Anderson is now arguing we
should remand for an evidentiary hearing to determine if K.H. actually consented, we
conclude that this issue was not preserved. Anderson's request for an evidentiary hearing
occurred shortly after Anderson I was issued and before Anderson pleaded guilty. When
the superior court denied the request for an evidentiary hearing, the court stated that it
would be willing to revisit the issue depending on how the evidence unfolded at trial.
Anderson never renewed his request for an evidentiary hearing after he pleaded guilty, and
although Anderson objected to the domestic violence designation in the presentence report,
he did so only on legal grounds - the same grounds he now raises on appeal.
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----------------------- Page 14-----------------------
participate in certain programs, reside at particular locations, or gain employment if
there is a misleading 'domestic violence' designation on his record."
Anderson's argument captures a potential problem with the legislature's
broad definition of domestic violence when applied in certain circumstances. As this
Court has previously acknowledged, "[T]he legislature's definition of 'domestic
violence' is worded so broadly that, if one were to read this definition literally, it would
cover many instances where the specified relationship between the defendant and the
victim is irrelevant to assessing whether the defendant is atypically dangerous or
40
whether the defendant's conduct is atypically blameworthy."
For this reason, both this Court and the Alaska Supreme Court have
acknowledged that the legislature's broad definition may be limited by operation of
other legal principles. For example, in State v. Tofelogo, our supreme court addressed
the sentencing aggravator that a defendant's crime was one of domestic violence and
held that, although a court cannot ignore the plain language of the aggravator in
determining whether it applies, a court may "give the aggravator less weight than it
would have if the defendant had directed the crime against an intimate partner for
purposes of intimidation or coercion."41 Similarly, in Bingaman v. State, this Court held
that even when a defendant's prior act of domestic violence is admissible for propensity
purposes under Alaska Evidence Rule 404(b)(4), courts must still determine whether
the evidence is admissible under Evidence Rule 403 - i.e., that its probative value is
not outweighed by its unfairly prejudicial effect - before admitting the evidence at
40 Tofelogo v. State, 408 P.3d 1215, 1217 (Alaska App. 2017), rev'd on other grounds
in State v. Tofelogo, 444 P.3d 151 (Alaska 2019); see also Bingaman v. State, 76 P.3d 398,
407-08 (Alaska App. 2003) (recognizing potential problems with the legislature's broad
definition of domestic violence); Carpentino v. State, 42 P.3d 1137, 1140-41 (Alaska App.
2002) (same).
41 Tofelogo, 444 P.3d at 158.
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trial.42 Alaska courts, in other words, have recognized that the legislature's broad
definition of domestic violence must sometimes be limited by the operation of other
legal rules and doctrines when strict application would lead to unfair results.
But Anderson has not identified any legal rule or doctrine that might limit
the application of Criminal Rule 32(e) in this case. And he does not address the history
or the purpose of the rule in his briefing. Moreover, Anderson has not pointed to any
specific "programs" or "opportunities for rehabilitation" to which he would otherwise
be entitled, but is likely to be denied because his crime has been designated as one of
domestic violence. Nor has he pointed to any residences or employment usually
available to a felon and convicted sex offender, but not available to someone convicted
of a crime involving domestic violence. His concerns about the consequences of his
designation remain wholly speculative given the seriousness of the underlying crime
for which he has been convicted.
We note that Alaska Criminal Rule 32(e) was enacted by the Alaska
Supreme Court, not the legislature. In 1996, the same year that the legislature enacted
its definition of "crimes involving domestic violence," the legislature also expanded the
definition of "serious offense" to include "crimes involving domestic violence,"
broadening the information that a criminal justice agency could provide to an interested
party.43 The Department of Public Safety then apparently contacted the court system,
requesting that the court include a "domestic violence" demarcation on the judgment
for each conviction.44 In response to this request, the Criminal Rules Committee drafted
42 Bingaman, 76 P.3d at 413-14.
43 See former AS 12.62.160(b)(10) (1996); former AS 12.62.900(23) (1996); see also
SLA 1996, ch. 64, § 33.
44 Letter from Del Smith, Deputy Commissioner of the Department of Public Safety,
to Arthur Snowden, Administrative Director of the Alaska Court System, regarding
changes to Alaska R. Crim. P. 32 (May 1, 1996).
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----------------------- Page 16-----------------------
a new section to Criminal Rule 32 that eventually became Criminal Rule 32(e).45 Thus,
it appears that the rule was intended primarily to facilitate the Department of Public
Safety's performance of a ministerial function.
Given Anderson's failure to discuss the history and the purpose of
Criminal Rule 32(e), his failure to identify a legal principle that might limit the
applicability of the rule, and his failure to identify any specific opportunities that he
might lose through application of the rule, we decline to deviate from a literal
application of the rule in this case.
Anderson's challenges to his probat ion conditions
Anderson also renews several challenges to his probation conditions. The
State concedes that several conditions should be remanded for reconsideration.46 We
begin with the mental health conditions, about which the parties disagree, and then
address the conditions which the parties agree require further proceedings.
45 See Minutes of Criminal Rules Committee (Dec. 6, 1996); SCO 1289 (dated Sept.
4, 1997; eff. Jan. 15, 1998); see also SCO 1464 (dated Mar. 5, 2002; eff. Mar. 5, 2002)
(amending the rule to its current form). We note that the prosecutor must claim that the
offense qualifies as a crime involving domestic violence in order to trigger application of
the rule. See Alaska R. Crim. P. 32(e) ("In a case in which the defendant is convicted of an
offense listed in AS 18.66.990(3) and the prosecution claims at sentencing that the offense
is a crime involving domestic violence, the written judgment must set forth whether the
offense is a crime involving domestic violence as defined in AS 18.66.990(3) and (5).")
(emphasis added); see also Alaska R. Crim. P. 3(d) (requiring the complaint to specify that
the offense is a crime of domestic violence if "the prosecuting authority intends to claim
that the alleged offense is a crime involving domestic violence as defined in
AS 18.66.990(3) and (5)"); Alaska R. Crim. P. 7(c)(2)(D) (requiring the indictment to
specify that a particular offense is a crime involving domestic violence if "the prosecution
claims that the alleged offense is a crime involving domestic violence as defined in
AS 18.66.990(3) and (5)").
46 Marks v. State , 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently assess whether a concession of error "is supported by the record on appeal
and has legal foundation").
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First, Anderson challenges Special Conditions of Probation Nos. 14 and
15, which require him to complete a mental health assessment and actively participate
in and successfully complete all recommended programs, counseling, and treatment.
Anderson contends that these conditions are invalid because the record is "void" of any
mental health issues and the court was only speculating about the possibility that he
suffered from an undiagnosed mental health condition. The State responds that, given
the circumstances of Anderson's arrest, a professional mental health assessment would
further his rehabilitation and reintegration.
We conclude that the superior court could reasonably find that a mental
health assessment was appropriate and reasonably related to Anderson's rehabilitation.
On the day Anderson's criminal conduct was reported to law enforcement, he called his
wife, told her he had an inappropriate relationship with a student, and threatened
suicide. The next day, troopers found Anderson slumped over in a still running vehicle.
There were pills and empty liquor bottles in and around the vehicle, as well as a note
addressed to Anderson's wife on the cupholder area. Anderson was unconscious and
had vomited on the driver's door and center console. Paramedics were called, and
medical testing revealed oxycodone, benzodiazepines, and alcohol in Anderson's
blood. After his release from medical care, Anderson was briefly transferred to the
Alaska Psychiatric Institute, and then arrested. Given these facts, the court did not abuse
its discretion in concluding that a mental health evaluation to determine whether
47
Anderson required further treatment was appropriate.
Second, Anderson challenges Special Condition of Probation No. 9, which
requires Anderson to provide to his probation officer "any and all [computer] passwords
or access codes" in order to allow the probation officer to "monitor compliance with
the court's conditions of probation and promote rehabilitation." Anderson contends that
47 See Allen v. Anchorage , 168 P.3d 890, 895 (Alaska App. 2007) (reviewing
conditions of probation for abuse of discretion).
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the requirement that he provide "any and all" passwords or access codes could be
construed to require him to provide access information for his bank accounts and other
sites that have no relation to his offense. He thus contends that the condition is overly
broad and violates his right to privacy under the Alaska Constitution.
The State agrees that, given Anderson's right to privacy, this language
must be narrowed. The State acknowledges that, while Anderson used his work email
to converse inappropriately with K.H. prior to initiating a sexual relationship with her,
he was not charged with any crime related to his use of the internet nor was there any
48
indication that he viewed or purchased illicit materials or watched them with K.H.
This condition also requires Anderson to submit to a search of his
computer, residence, or vehicle at the direction of a probation officer "for the presence
of communications with minors" (a provision to which Anderson agreed). Consistent
with this requirement, the State suggests that any computer search in this case should
be limited to monitoring whether Anderson is having any communications with minors
and "accordingly limited to websites and apps that facilitate such communication." The
49
State also concedes that websites like those for banks should be excluded.
Accordingly, we remand Special Condition of Probation No. 9 to the
superior court so that it may more narrowly tailor the provision requiring Anderson to
48 According to the presentence report, in July 2013 (prior to the start of Anderson's
sexual relationship with K.H.), the school discovered a series of emails between Anderson
and K.H. Some of the messages were school-related, but as time progressed, the emails
became increasingly personal, including nicknames for one another. K.H. informed the
school at that time that no sexual contact had occurred nor sexual photographs exchanged.
The school district issued a written reprimand to Anderson, advising him that the
"inappropriate behavior must stop."
49 In the superior court, the prosecutor argued that banking records could provide
information about the purchase of illicit materials. But on appeal, the State concedes that
there were no allegations that Anderson engaged in that type of conduct in this case, and
thus, that such a restriction has an insufficient nexus to his offense.
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provide his passwords and access codes to the specific object of this condition -
50
monitoring communications with minors.
Third, Anderson challenges Special Condition of Probation No. 12, which
prohibits him from knowingly having contact with a person under eighteen years old,
unless in the immediate presence of a pre-approved adult who knows the circumstances
of his crime. Anderson argues that, since K.H. was fifteen years old at the time of his
offense, the age limit for this condition should be sixteen - the general age of consent
in Alaska - rather than eighteen, and that the court failed to consider this less restrictive
alternative.
The State concedes that, upon Anderson's objection in the superior court,
the court left the condition unchanged but did not make findings as to why the condition
was the least restrictive means of protecting the public and promoting Anderson's
rehabilitation. The State proposes that, on remand, the court amend this condition to
restrict Anderson from "knowingly hav[ing] contact with a person under eighteen (18)
years old over which he holds a position of authority, or any person under sixteen (16)
years old," unless in the immediate presence of a pre-approved adult. Because this
appeal was filed as a sentence appeal under Appellate Rule 215, Anderson was not
entitled to file a reply brief and has not had an opportunity to respond to the State's
specific proposal.51 We remand this condition for further consideration in light of the
State's proposed language.
50 See Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021) (recognizing that 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 unnecessary
interference with the constitutional right at issue" and "affirmatively consider and have
good reason for rejecting lesser restrictions") (first quoting Glasgow v. State, 355 P.3d 597,
600 (Alaska App. 2015); and then quoting Peratrovich v. State, 903 P.2d 1071, 1079
(Alaska App. 1995)); see also Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App.
2014) (same).
51 See Alaska R. App. P. 215(g)(3).
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Fourth, Anderson challenges Special Condition of Probation No. 17:
The probationer shall not open or maintain an account with
any internet provider, shall not participate in any social
media accounts (examples include but are not limited to:
dating sites, MySpace, Facebook, Instagram, Snapchat,
Whatsapp, Twitter) and is expressly forbidden from
accessing the internet from anyone else's account, without
the prior written permission of the Probation Officer,
recognizing that some degree of access to the internet is
necessary to reintegration into society.
Anderson argues that making his internet access contingent on the
probation officer's discretion unduly restricts his First Amendment rights. The State
concedes that the condition is overbroad and must be further tailored.
After Anderson's sentencing, we addressed the propriety of a similar
internet restriction in Dalton v. State .52 In Dalton , we found that a complete internet
ban, subject only to the unconstrained discretion of a probation officer, unduly restricted
the defendant's liberty, and we encouraged the trial court on remand to consider less
restrictive alternatives to limit the defendant's internet access in light of the "growing
necessity of internet access for full participation in modern society, and for the
rehabilitation of offenders."53 Although we had previously affirmed such conditions,54
we recognized that dependence on the internet in daily life had grown considerably in
the decade since those decisions, and what had previously been a substantial
inconvenience, was now "an almost total hindrance to reentry into modern society and
meaningful participation in public discourse."55 We also noted that the internet had
52 Dalton v. State, 477 P.3d 650, 652-56 (Alaska App. 2020).
53 Id. at 654-56.
54 See, e.g., Diorec v. State, 295 P.3d 409 (Alaska App. 2013); Dunder v. State, 2009
WL 1607917 (Alaska App. June 10, 2009) (unpublished).
55 Dalton, 477 P.3d at 655.
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played less of a role in Dalton's offense than it had in the offenses addressed in our
prior decisions, and we directed the court on remand to resume its consideration of less
restrictive alternatives, including the possibility of allowing Dalton to open and
maintain a single internet account, which would be subject to warrantless searches and
56
probation officer monitoring.
The State recognizes that Anderson's use of the internet in this case was
even more attenuated than in Dalton . Anderson used his work email - which was
already subject to monitoring - to communicate inappropriately with K.H. over the
summer, prior to initiating a sexual relationship with her. The State notes that the court
attempted to narrow the condition by adding a provision regarding the importance of
internet access - i.e., "recognizing that some degree of access to the internet is
necessary to reintegration into society." But the State nonetheless agrees that the court
did not make sufficient findings to justify this condition as the least restrictive means
of promoting Anderson's rehabilitation.
We therefore remand this condition for reconsideration in light of our
decision in Dalton . The court should consider whether, and to what extent, an internet
restriction is required in this case, given the facts of this case and Anderson's
rehabilitation needs. We note that Anderson's other probation conditions already
prohibit him from contacting minors and from possessing certain sexually explicit
materials involving minors, and allow the probation officer to search his computer,
electronic devices, residence, or vehicle for this prohibited material.
Finally, Anderson argues that Special Condition of Probation No. 4 -
which provides that any recommended sex offender treatment "may include
physiological and/or psychological testing, as well as other methods of ongoing
assessment" - could be interpreted to include plethysmograph testing. We have
56 Id. at 655-56.
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previously held that plethysmograph testing implicates privacy and liberty interests and
57
thus necessitates application of special scrutiny.
In this case, the superior court specifically stated that it was not
authorizing plethysmograph testing. Anderson argues that the written judgment should
reflect this oral pronouncement.58 The State agrees that the judgment should be
amended to reflect the exclusion of plethysmograph testing.
As a general matter, if Anderson believed the judgment was unclear, he
could have moved to amend the judgment in the superior court to reflect the oral
pronouncement of sentence. But since the court clearly intended to exclude
plethysmograph testing from Condition No. 4, and because we are remanding this case
in any event, we direct the court on remand to amend the judgment to expressly reflect
the exclusion of plethysmograph testing.
Conclusion
We REMAND this case to the superior court for reconsideration of
Special Conditions of Probation Nos. 4, 9, 12, and 17, consistent with this opinion. We
otherwise AFFIRM the judgment of the superior court.
57 Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021).
58 Cf. Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991) ("Where . . . a conflict
exists between an orally imposed sentence and a subsequently issued written judgment, it
is well settled that the oral pronouncement of a sentence must govern.").
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