Diorec v. State
| Decision Date | 22 February 2013 |
| Docket Number | No. A–11018.,A–11018. |
| Citation | 295 P.3d 409 |
| Parties | Jose K. DIOREC III, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
OPINION TEXT STARTS HERE
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Stephen R. West, District Attorney, Ketchikan, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: MANNHEIMER, Chief Judge, and BOLGER and ALLARD, Judges.
Jose K. Diorec III was convicted of unlawful exploitation of a minor for surreptitiously filming his stepdaughter in her bedroom. He challenges several conditions on his probation,including requirements that he submit to periodic polygraph examinations, that he have no contact with the victim or her family, that he complete sex offender treatment and other unspecified programs, that he advise other household members of his criminal history, that he avoid involvement with organizations for children, that he have no “sexually explicit material,” and that he not access the Internet without his probation officer's permission. We generally conclude that these conditions are sufficiently related to Diorec's rehabilitation and the protection of the public. But we conclude that the definition of “sexually explicit material” must be modified to provide constitutionally adequate notice of what is prohibited.
Diorec bought a spy camera online and installed it in a smoke detector in the bedroom of his fourteen-year-old stepdaughter, J.F. He placed a video transmitter in the ceiling above the camera, and hid a receiver in the entertainment center in the living room. Diorec's wife and her two daughters discovered the camera when they plugged the receiver into the TV after watching a video. They also discovered an unlabeled VHS tape under the entertainment center that included a recording of J.F. in her room. When Diorec's wife confronted him, Diorec smashed the tape cassette, and threw the film from inside it into the woods.
The police executed a search warrant on the residence and seized VHS tapes from different parts of the house. Seven of the tapes contained footage of J.F. in underwear, naked, or masturbating.
During the police investigation, J.F. reported that Diorec had come into her room unannounced while she was masturbating approximately a year before. Diorec told J.F. that masturbation was normal, and the next day he gave her some lubricant. Shortly after that, J.F. found a sex toy that Diorec had left on her bed.
Diorec's wife told the police that Diorec had opened a Twitter account about six months before, using the profile of a sixteen-year-old boy. At sentencing, she told the court Diorec had used that account to contact J.F. and her friends.
The State charged Diorec with unlawful sexual exploitation of a minor, possession of child pornography, and tampering with physical evidence. Prior to trial, Diorec entered into a plea agreement and pleaded no contest to a single count of unlawful sexual exploitation of a minor. Diorec also admitted two aggravating factors: that his crime was committed against another household member,1 and that he had engaged in other similar conduct against the same victim.2
Diorec objected to several conditions of probation that were requested in the presentence report. The court modified some of these conditions and imposed others as proposed. These conditions are the main subject of this appeal.
A probation condition must be “reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty.” 3 Conditions that restrict constitutional rights are subject to special scrutiny to determine whether the restriction serves the goals of rehabilitation of the offender and protection of the public.4
The polygraph examination requirement
General Condition No. 12 requires Diorec to “submit to periodic polygraph examinations as directed by a probation officer of the Department of Corrections.” Diorec argues that this requirement is not reasonably related to his rehabilitation or to the protection of the public. He argues that polygraph results are inadmissable in evidence, and that this requirement does not reasonably relate to any purpose of probation.
Alaska Statute 12.55.100(e)(1)(A) requires a defendant convicted of a sex offense “as a condition of probation ... to submit to regular periodic polygraph examinations.” The legislature explained the purpose of this requirement in a letter of intent that accompanied this legislation:
For most offenders the hope for deterrence in Senate Bill 218 is provided by the increased probation periods and the use of the polygraph while on probation or parole. The polygraph will help to provide an early warning system during supervision that will put the probation or parole officer on notice that corrective action is necessary due to signs of deception or offending behavior. The use of the polygraph should prevent at least some future victimization from occurring.5
The legislature enacted this requirement based on committee testimony recommending periodic polygraph examinations as part of a comprehensive “containment approach” to the supervision of convicted sex offenders.6
Based on this legislative history, we conclude that the polygraph testing specified in the statute was intended to promote the rehabilitation of sex offenders and to protect the public from further sexual offenses. We thus assume that when Diorec submits to polygraph examinations pursuant to his probation condition, the examinations will be limited to those purposes.
Diorec also argues that the results of his polygraph examinations will not be admissible against him in probation revocation proceedings or other court proceedings. Under current Alaska law, the results of polygraph examinations are normally not admissible in court proceedings, even when the parties are willing to stipulate to the admission of the results.7
We note that courts from other states are currently split on the issue of whether a probationer's polygraph results are admissible in a probation revocation proceeding.8 But Diorec has not yet been required to take a polygraph examination, and the State has never asked that the polygraph results be admitted into evidence. Consequently, this issue is not squarely in front of us in the present case, and we express no opinion on the proper resolution of this issue.
Diorec also contends that the requirement of polygraph examinations violates his privilege against self-incrimination—because he has been ordered to submit to these examinations, and because it is foreseeable that, during the examinations, he will be asked to provide information that might tend to incriminate him, either with respect to new offenses or with respect to other violations of his probation.9 But the State concedes that it would be improper to interpret Diorec's condition of probation as requiring him to incriminate himself.
The State asserts that when probationers in Diorec's situation are summoned to submit to polygraph examinations, the Department of Corrections expressly advises the probationers that (1) they may assert their privilege against self-incrimination and refuse to answer any question if the requested information would tend to incriminate them, and (2) their probation will not be revoked for valid assertions of the privilege against self-incrimination.
Given the State's representations to this Court, it appears that Diorec's court-ordered polygraph examinations do not present a realistic hazard of self-incrimination.10 If, in the future, a dispute arises as to whether Diorec has validly invoked his privilege against self-incrimination during a polygraph examination, the superior court can resolve the dispute at that time.
The restriction on contact with the victim or her family
Special Condition No. 1 states that Diorec “shall have no contact, direct or indirect, with the victim J.F. and her immediate family, except as may be allowed by the court in [Diorec's divorce proceeding].” Diorec argues that this restriction unconstitutionally restricts his access to his other daughter, N.T., who was seven years old at the time of sentencing.
At sentencing, Diorec's ex-wife told the court that the divorce court had ordered that N.T.'s counselor had to approve any contact between Diorec and N.T. Diorec was allowed to write letters to N.T., and the counselor was holding them until N.T. was ready for them. And N.T. was writing in a journal that would be given to Diorec at some point in the future.
Conditions of probation restricting family associations must be subjected to special scrutiny because they implicate important constitutional rights.11 In this case, however, Diorec had exploited a child from his nuclear family. Therefore it was reasonable for the sentencing court to act to protect the other members of his family, including his biological daughter, N.T.12
Moreover, this restriction is narrowly tailored to avoid unnecessary interference with Diorec's family relationships. Apparently, the divorce court had already issued a court order concerning N.T.'s custody and Diorec's contact with her. By deferring to the divorce court, Judge Carey avoided issuing a potentially conflicting order. In essence, Judge Carey simply ordered Diorec not to violate the orders of the divorce court. This condition adopts the least restriction on Diorec's family relationships by encompassing only a restriction that he was independently required to follow.
The requirement that Diorec must complete “other Department-approved programs ”
Special Condition No. 6 requires Diorec to complete other programs at the direction of his probation officer:
The defendant shall, if decided to be appropriate by his probation officer and sex offender treatment provider, enter and successfully complete any other Department-approved programs, including but not limited to mental health...
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...and then hid a video camera in the bathroom). At least one involved behavior that was clearly sexual in nature. See Diorec v. State , 295 P.3d 409, 412 (Alaska Ct. App. 2013) (defendant hid camera in step-daughter's bedroom and then offered her lubricant and sex toys and encouraged her to m......
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...F.3d 251, 264 (3d Cir. 2001) (holding condition banning all pornography unconstitutionally vague and overbroad); Diorec v. State, 295 P.3d 409, 416–17 (Alaska Ct. App. 2013) (holding condition prohibiting "sexually explicit material" unconstitutionally vague); and Smith v. State, 779 N.E.2d......
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...; United States v. Loy, 237 F.3d 251, 263-265 (3d Cir. 2001). Several State courts have concluded likewise. See Diorec v. State, 295 P.3d 409, 417 (Alaska Ct. App. 2013) ; Foster v. State, 813 N.E.2d 1236, 1239 (Ind. Ct. App. 2004) ; Fitzgerald v. State, 805 N.E.2d 857, 867 (Ind. Ct. App. 2......
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