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vacating as impermissibly vague a probation condition prohibiting the defendant from "enga[ging] in an intimate relationship with any person without prior written permission"
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Court of Appeals No. A-10070.
October 7, 2009.
Appeal from the Superior Court, Second Judicial District, Barrow, Richard H. Erlich, Judge, Trial Court No. 2BA-06-00290 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Barry Bodfish, Jr. was convicted, in a bench trial, by Superior Court Judge Richard H. Erlich of kidnapping and third-degree assault. Judge Erlich imposed a composite sentence of 45 years with 15 years suspended. On appeal, Bodfish argues that there was insufficient evidence to support his conviction for kidnapping. He also argues that his sentence was excessive and that a probation condition that Judge Erlich imposed violated his constitutional rights. We affirm Bodfish's conviction and sentence. But we conclude that the probation condition is vague and overbroad, and therefore vacate the probation condition and remand to allow the trial court to reconsider the probation condition.
AS 11.41.300(a)(1)(C); AS 11.41.220(a).
There was sufficient evidence to support the kidnapping conviction
Bodfish was charged with kidnapping for restraining his girlfriend, Francine Hopson, with the intent to inflict physical injury upon her. When we review a claim that a conviction is not supported by sufficient evidence, we view the evidence and the reasonable inferences from the evidence in the light most favorable to upholding the trial court's verdict. We are to determine "whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to [the defendant's] guilt."
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (quoting Martin v. Fairbanks, 456 P.2d 462, 464-65 (Alaska 1969)); Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
Bodfish contends that the evidence was insufficient to show that he restrained Hopson or that he intended to inflict physical injury on her. Bodfish relies on the fact that the witnesses who saw the interaction of Bodfish and Hopson were intoxicated and that Hopson testified at trial that she never felt that she was being kidnapped while she was in the truck with Bodfish. But in his findings, Judge Erlich gave "no credence to Ms. Hopson's explanation of what happened." He found that Hopson's testimony at trial was influenced by the fact that she loved Bodfish. Judge Erlich stated that he relied primarily on the physical evidence and on the statements Hopson made to the police shortly after the incident.
At trial, a North Slope Borough police officer testified that he interviewed Hopson shortly after the incident. The officer testified that Hopson was upset and frightened. When the officer asked her what happened, Hopson told him that Bodfish had accused her of "messing around." Bodfish attacked her, biting off a piece of her lip. Bodfish then pushed her into the truck and told her that "he was going to kill himself and was going to kill her." Hopson stated that she was afraid "that he was going to kill both of them." As they were driving, she reached over and grabbed the steering wheel. Bodfish then pushed her out of the truck.
Judge Erlich concluded that Hopson was restrained. He found that Bodfish had intimidated Hopson by injuring her and pushing her into the truck. He concluded that Bodfish's statement that he intended to kill Hopson was evidence of his intent to physically injure her. And, according to Hopson's statement to the police, because she was afraid that Bodfish was going to kill both of them, she grabbed the steering wheel, and Bodfish then pushed her out of the truck. We conclude that the evidence, viewed in the light most favorable to upholding Judge Erlich's verdict, was sufficient to support Bodfish's conviction for kidnapping.
Bodfish's sentence was not excessive
Bodfish argues that his composite sentence of 45 years with 15 years suspended (30 years to serve) is excessive. Kidnapping is an unclassified felony with a sentencing range of 5 to 99 years. Assault in the third degree is a class C felony with a maximum term of imprisonment of 5 years. Bodfish was a third-felony offender for purposes of presumptive sentencing and, therefore, faced a presumptive range of 3 to 5 years on the assault charge. Judge Erlich imposed 40 years with 15 years suspended on the kidnapping conviction. He imposed the maximum term of 5 years of imprisonment for the assault charge. Judge Erlich imposed these sentences consecutively and placed Bodfish on probation for a period of 10 years following his release from confinement.
See AS 12.55.125(b).
AS 11.41.220(e); AS 12.55.125(e).
AS 12.55.125(e)(3).
Bodfish was forty-five years old at the time of sentencing on the current offense. He has an extensive prior criminal record. He has two prior felony convictions. Bodfish was convicted in 1989 of assault in the second degree for assaulting a girlfriend. In 1991, Bodfish was convicted of assault in the second degree for assaulting a corrections officer. In addition, Bodfish has a long criminal history of misdemeanor offenses. The presentence report stated that Bodfish's present offense was his eleventh conviction for assault. Many of these prior convictions were domestic violence assaults where Bodfish caused serious injury to girlfriends. In fact, at the time he committed the present offenses, Bodfish was on misdemeanor probation for a previous domestic violence assault against the same victim, Francine Hopson. The record shows that Bodfish has spent substantial periods of his life in custody and has frequently engaged in serious assaultive behavior. The record shows that he has consistently failed attempts at rehabilitation.
When we review a sentence for two or more crimes, we review whether the combined sentence is clearly mistaken, given the defendant's conduct and history. Bodfish's combined sentence is 30 years to serve.
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
We note that, had Bodfish been convicted of a mitigated kidnapping offense, which is a class A felony, as a third-felony offender he would have faced a presumptive term of 15 to 20 years of imprisonment. (Kidnapping is reduced to a class A felony when the defendant proves the affirmative defense that he "voluntarily caused the release of the victim alive in a safe place . . . without having caused serious physical injury to the victim" or committing a sexual assault.)
AS 11.41.300(d) AS 12.55.125(c)(4).
AS 11.41.300(d).
We conclude that the sentence Judge Erlich imposed was not clearly mistaken. In sentencing Bodfish, Judge Erlich conceded that this was not a "most serious kidnapping within the class of kidnappings." But Judge Erlich could properly consider Bodfish's lengthy and almost continuous criminal record of various offenses, including numerous convictions for serious assaultive behavior.
Bodfish points out that Judge Erlich erred in finding an aggravating factor: that "the defendant was on release under AS 12.30.020 or AS 12.30.040 for another felony charge or conviction or for a misdemeanor charge or conviction having assault as a necessary element." The State concedes that Judge Erlich erred in finding this aggravating factor. Alaska Statute 12.30.020 governs pretrial release. Alaska Statute 12.30.040 governs release of a defendant after conviction but before sentencing or pending appeal. Neither of those situations applied to Bodfish's case. Bodfish had been released on probation for a prior misdemeanor assault. But we conclude that this error was harmless.
AS 12.55.155(c)(12).
Because Bodfish was a third-felony offender, he faced a presumptive term of 3 to 5 years of imprisonment on the assault charge. Therefore, Judge Erlich was authorized to impose the maximum 5-year term without finding any aggravating factors. Kidnapping is an unclassified felony and is not governed by presumptive sentencing.
AS 12.55.125(e)(3).
AS 12.55.125(b).
We have previously stated that, in situations where aggravating factors do not directly apply, it is proper to use these aggravating factors by analogy "as points of reference when the parties argue how a particular defendant's crime should be view ed." But we also stated that in this situation, "when a judge's authority to impose a particular sentence does not rest on the judge's findings concerning contested aggravating or mitigating factors, any challenges to the judge's findings are moot." We reach a similar conclusion here. Judge Erlich's sentencing authority did not rest on finding aggravating factors. The aggravating factors applied only by analogy.
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002).
Id. at 685 (footnote omitted).
Furthermore, although Judge Erlich made a legal error in finding this aggravator, the record shows that he did not erroneously think that Bodfish was on bail release at the time of sentencing. Judge Erlich knew that Bodfish was on probation for committing a previous misdemeanor domestic violence assault against Hopson, a circumstance that appears to be clearly relevant for sentencing purposes. Judge Erlich also properly found five other aggravating factors, most of which were based on Bodfish's extensive prior criminal history. Under these circumstances, it seems clear that Judge Erlich's sentencing decision was not influenced by his mistaken finding of the aggravating factor.
The challenged probation condition is vague and overbroad
At sentencing, Judge Erlich decided not to prohibit contact between Bodfish and his victim, Hopson. Instead, Judge Erlich required that "if [Bodfish was] going to reside with Ms. Hopson, . . . Ms. Hopson [had] to complete an alcohol evaluation and treatment program." Judge Erlich did this to "provide for [Hopson's] safety" and because both Bodfish and Hopson had been intoxicated at the time of the assault.
The probation officer also recommended that Judge Erlich impose the following special condition:
The defendant shall not remain overnight with, cohabitate with or engage in an intimate relationship with any person without the prior written permission of a probation officer. The probation officer shall disclose the nature of the offense for which the defendant is on supervision and the defendant's criminal history.
The probation officer recommended that the court impose this condition so that "the probation officer would have the ability to at least warn potentially foreseeable victims and to bar Mr. Bodfish's access to potentially foreseeable victims."
Judge Erlich stated that he was "worried about constitutional issues," but once the probation officer clarified that this condition would not apply to Bodfish's relationship with Hopson, Judge Erlich stated, "Okay, I'll adopt [the special condition]. I'm not going to prohibit contact with the family given Ms. Hopson's statements."
On appeal, Bodfish challenges the condition of probation requiring him to obtain his probation officer's permission before "remain[ing] overnight with, cohabitat[ing] with or engag[ing] in an intimate relationship with any person." Bodfish claims that this condition is "overbroad, vague, and violative of [his] constitutional rights."
Conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." When a probationer's constitutional rights are implicated, the probation condition will be subjected to "special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety." To pass constitutional muster, the condition must be: (1) actually necessary because of a lack of less restrictive alternatives, and (2) closely tailored to the "specific needs of the case at hand."
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977); see also Oyoghok v. Anchorage, 641 P.2d 1267, 1271 (Alaska App. 1982) (Singleton, J., concurring) ("A probationer has a statutory and common law right to be free of any condition of probation not reasonably related to her rehabilitation. To the extent that a condition is unnecessarily severe or restrictive, it violates the Tiedeman rule." (internal citation omitted) (citing Tiedmeman v. State, 576 P.2d 114, 116 (Alaska 1978)).
Roman, 570 P.2d at 1241.
See Dawson v. State, 894 P.2d 672, 680-81 (Alaska App. 1995).
In Dawson v. State, we vacated a probation condition restricting Dawson from unauthorized contact with his wife as "unduly restrictive of liberty." Dawson had been convicted of delivering cocaine, and his wife was his partner in crime. We first noted that the condition plainly implicated Dawson's constitutional rights and should therefore be subjected to special scrutiny. Although the probation condition was related to the goal of rehabilitation, it was also "an extreme restriction of liberty." We concluded that the restriction should be narrowly tailored to the specific needs of the case. The judge in Dawson had imposed a number of special conditions that addressed the specific needs of Dawson's case, and we noted that the judge had not explained "why [she] considered these additional restrictions to be insufficient to address [her] concerns for Dawson's success as a probationer." We also expressed concern that "the disputed condition delegate[d] to Dawson's probation officer unconditional and unlimited authority to regulate Dawson's marital relationship." We held that the challenged restriction was too broad.
Id.
Id. at 681.
Id. at 674.
Id. at 680.
Id.
Id. at 681.
Id.
Id.
Id.
Bodfish's condition of probation forbids him from engaging "in an intimate relationship with any person without the prior written permission of a probation officer." Because the challenged condition restricts Bodfish's ability to freely choose who he lives with and associates intimately with, it clearly implicates Bodfish's constitutional right to privacy under the Alaska Constitution, as well as his First Amendment right to freedom of association under the United States Constitution. Further, because the condition allows Bodfish's probation officer to restrict his free exercise of these rights at the probation officer's sole discretion, it also implicates Bodfish's due process rights under the United States and Alaska Constitutions.
Alaska Const. art. I, § 22; cf. Dawson, 894 P.2d at 680 ("A condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association.").
U.S. Const. amend. XIV; Alaska Const. art. I, § 7.
The record establishes that Bodfish has a history of serious assaultive behavior in domestic relationships, particularly in situations when he is intoxicated. Judge Erlich was justified in addressing this situation. But he had already imposed a number of conditions that were narrowly tailored to assist Bodfish in his rehabilitation and to protect the public. The special conditions of probation imposed on Bodfish state that (1) he cannot possess or consume alcohol; (2) he must submit to alcohol tests and searches of his person for alcohol; (3) he must complete a substance abuse evaluation and follow recommendations; (4) he must complete a batterer intervention program; (5) he cannot reside with Hopson until she has completed an alcohol treatment program; and (6) he must complete a mental health evaluation and participate in any recommended programs. Judge Erlich did not explain why he concluded that the broad scope of the challenged condition was necessary in addition to these more narrowly tailored conditions. We conclude that the challenged condition, as written, is overbroad.
The challenged condition is also vague. It prohibits Bodfish from "engag[ing] in an intimate relationship with any person without prior written permission." As Bodfish points out, the meaning of the phrase "engage in an intimate relationship" is unclear, and the meaning is further obscured because the condition applies to "any person," not just women with whom Bodfish is romantically involved.
In addition, the challenged condition prohibits Bodfish from "remain[ing] overnight with . . . any person" without prior written approval. On its face, this condition requires Bodfish to obtain his probation officer's permission before staying overnight at his mother's house or living with a male roommate. Presumably Judge Erlich did not mean for the challenged condition to be so broad, but the language is vague and open to broader interpretation. And that interpretation is left to the unfettered discretion of Bodfish's probation officer.
We conclude that the challenged condition is impermissibly vague and overbroad. It is an extreme regulation of Bodfish's ability to engage in any intimate relationship without the prior permission of his probation officer. Furthermore, it does not adequately inform Bodfish of what conduct is prohibited. And, because the probation condition is not clear, it is subject to arbitrary enforcement by Bodfish's probation officer. We recognize that, given Bodfish's prior record of serious assaultive behavior in domestic relationships, the trial court had substantial reasons to regulate Bodfish's behavior in those relationships. But the current probation condition is both vague and overbroad. We accordingly vacate the probation condition. The court may, in its discretion, consider less restrictive alternatives.
The judgment of the superior court is AFFIRMED, with the exception of the challenged probation condition. That probation condition is VACATED.