Diorec v. State

In Diorec v. State, 295 P.3d 409 (Alaska App. 2013), the defendant was convicted of sexual exploitation of a minor for surreptitiously filming his stepdaughter in her bedroom. The sentencing court imposed a condition of probation prohibiting Diorec from possessing "sexually explicit material" including "pornography." The Court agreed with the superior court that this condition was generally related to Diorec's offense and to the sentencing goals of rehabilitation and protection of the public. But we agreed with Diorec that, without further definition of what materials were encompassed within the meaning of the terms "sexually explicit material" and "pornography," the condition provided constitutionally inadequate notice of what conduct was prohibited. The Court ordered a sentencing court to reconsider similar probation conditions on the grounds that the term "sexually explicit material" was too vague and did not provide constitutionally adequate notice of what materials were prohibited. Diorec involved a defendant who was convicted of unlawful exploitation of a minor for surreptitiously filming his stepdaughter naked and masturbating in her bedroom. The superior court made specific findings supporting the imposition of these conditions. The superior court found that Diorec "was essentially involved in the production of pornography" and had been found with other pornography on his computer, which led it to conclude that the possession of pornography was not going to assist Diorec in his rehabilitation. The Court upheld the superior court's conclusion that this type of restriction was reasonably related to Diorec's offense and the goals of rehabilitation and protection of the public, but we nevertheless directed the superior court to clarify what "sexually explicit materials" were prohibited under these conditions. The Court noted that the court had interpreted the prohibition to apply only to "pornography," but that the term "pornography" was itself vague and that courts upholding these types of conditions had generally done so because the term was tied to a more specific statutory definition.