Llamas (Steven) v. State ( 2015 )

 statements outlined above. Following the hearing, Llamas pled guilty to a
lesser charge of sexually motivated coercion, pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970), thereby denying his guilt but acknowledging
that "the State would present sufficient evidence at trial that a jury would
return a verdict of guilty of a greater offense or of more offenses." The
district court adjudged Llamas guilty and suspended his sentence
provided he complies with the conditions of his probation, one of which,
mandated by NRS 176A.410(1)(I), requires that Llamas "[n]ot have contact
with a person less than 18 years of age in a secluded environment unless
another adult who has never been convicted of a sexual offense is present
and permission has been obtained from the parole and probation officer
assigned to the defendant in advance of each such contact." 2 Llamas has
two biological daughters—one with Sarah. Because Llamas's probation
condition hinders his ability to live with and privately visit these children
he appeals its imposition as violative of his constitutional right to
intimately associate and as an abuse of the district court's discretion.
I.
At issue in this appeal is the constitutionality and application
of NRS 176A.410(1)(1). This statute states that, unless extraordinary
circumstances are present, NRS 176A.410(6), "if a defendant is convicted
of a sexual offense and the court grants probation or suspends the
sentence, the court shall. . . order as a condition of probation or
suspension of sentence that the defendant":
2Llamas suggests that the district court orally allowed an exception
to this condition for his visitation of his minor children. But the written
order does not so state and it is this order that controls. See Rust v. Clark
Cnty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987).
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(1) Not have contact with a person less than 18
years of age in a secluded environment unless
another adult who has never been convicted of a
sexual offense is present and permission has been
obtained from the parole and probation officer
assigned to the defendant in advance of each such
contact.
Llamas argues that the probation condition NRS 176A.410(1)(1) requires
cannot be constitutionally imposed upon him.
We assume, as Llamas does, that the right to intimately
associate with one's biological child is a fundamental right protected by
the Fourteenth Amendment. But see Piscottano v. Murphy, 511 F.3d 247,
278 (2d Cir. 2007) ("The source of the intimate association right has not
been authoritatively determined.") (internal quotations omitted).
Crediting this assumption, we would ordinarily subject this statute's
alleged infringement of this right to strict scrutiny, thereby requiring that
it be narrowly tailored to serve a compelling state interest. See In re
Parental Rights as to J.L.N., 118 Nev. 621, 625, 55 P.3d 955, 958 (2002)
(stating that parents have a "fundamental right to care for and control
their children" in the context of a petition to terminate parental rights and
that a statute's infringement upon such a right is subject to strict
scrutiny). But it is not clear whether strict scrutiny should apply where,
as here, the fundamental right infringed upon belongs to a probationer
and is so restricted as a condition of his or her probation. See United
States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999) (holding that a "court
will not strike down conditions of release, even if they implicate
fundamental rights, if such conditions are reasonably related to the ends
of rehabilitation and protection of the public from recidivism"); see also
Himmage v. State, 88 Nev. 296, 299, 496 P.2d 763, 766 (1972) (a
probationer who has been granted the privilege of probation on condition
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that he submit at any time to a warrantless search may have no
reasonable expectation of traditional Fourth Amendment protection).
Llamas offers no elucidation on the point, failing to even note
strict scrutiny's general application where a statute infringes upon a
fundamental right, much less to advocate as to its pertinence here.
Instead he tenders as general law, based upon his reading of certain Ninth
Circuit precedent—namely, United States v. Wolf Child, 699 F.3d 1082,
1090-91 (9th Cir. 2012), and United States v. Apodaca, 641 F.3d 1077,
1085 (9th Cir. 2011)—the proposition that "a condition of probation may
not burden an individual's constitutional right to ... raise [his] children."
But neither Wolf Child nor Apodaca stand for this principle. See Wolf
Child, 699 F.3d at 1092 (noting that just because a probation condition
infringes upon a fundamental right "does not mean that [condition] is
necessarily invalid"); Apodaca, 641 F.3d at 1085 (favorably citing United
States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008), which held that a
court imposing a probation condition that infringed on a fundamental
right must "support its decision (to impose the condition) on the record
with record evidence that the condition . . . is necessary to accomplish one
or more of the factors listed in [the federal supervised release guidelines]
and involves no greater deprivation of liberty than is reasonably
necessary") (internal quotation omitted). And in any case, this precedent
appears to be based upon federal statutory law, see 18 U.S.C. § 3583(d);
Wolf Child, 699 F.3d at 1090; Apodaca, 641 F.3d at 1085 (citing Stoterau,
524 U.S. at 1008, which analyzed § 3583(d)), and therefore, does not "set
the minimum national [constitutional] standard for the exercise of
individual rights' in this context.
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If we meet Llamas in the middle and apply strict scrutiny—
the standard that would be most protective of his rights short of the bar on
governmental infringement he requests—there remains the question of
that test's proper interpretation; specifically, what it means to require
that a statute be narrowly tailored in this context. Compare United States
v. McLaurin, 731 F.3d 258, 262 (2d Cir. 2013) (equating narrow tailoring
with reasonable necessity) with Gaines v. State, 116 Nev. 359, 371, 998
P.2d 166, 173 (2000) (seeming to equate narrow tailoring with strict
necessity). This facet of constitutional theory is unaddressed by Llamas, a
deficiency that would, if the distinction determined the outcome, justify us
in summarily rejecting the claim. See Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to rule
on issues an appellant "neglected . . . to cogently argue, and present
relevant authority, in support" thereof). But, this "as applied" challenge
makes up the core of Llamas's appea1, 3 and a determination of the
constitutional nuances he ignores is not required because, assuming that
strict scrutiny applies and that its narrow tailoring requires strict
necessity (assumptions that work in Llamas's favor), his as-applied
challenge still fails.
Imposing NRS 176A.410(1)(1) on Llamas served a compelling
state interest. As the district court noted, the purpose in imposing the
condition was to give "Parole and Probation. . all of the leeway that they
need to ensure that the defendant has no contact with . . . the other
3 It
does not appear that Llamas advances a facial challenge to the
statute, rather than "as applied." Assuming he does, we reject the
challenge based on Edwards, inasmuch as he does not cogently argue or
support the claim.
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victims, children that were involved in this actual incident." It is well-
established that the government has a "compelling interest in protecting
the physical and psychological well-being of minors." Sable Commc'ns of
Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989); see also Herring v. State, 100
So. 3d 616, 625 (Ala. Crim. App. 2011); State V. Evenson, 33 P.3d 780, 784
(Ariz. Ct. App. 2001); Jones v. State, 640 So. 2d 1084, 1086 (Fla. 1994)
(compelling interest in protecting children from threat of sexual
exploitation); Sparks v. Sparks, 65 A.3d 1223, 1232 (Me. 2013) (compelling
interest in protecting children from harm or threat of harm); In re
Dependency of T.C.C.B., 158 P.3d 1251, 1254 (Wash. Ct. App. 2007); In re
Zachary B., 678 N.W.2d 831, 836 (Wis. 2004) (compelling interest in
protecting children from unfit parents).
As to whether NRS 176A.410(1)(1), as applied to Llamas, is
narrowly tailored to serve that interest, and again, assuming that narrow
tailoring requires strict necessity, it seems that the section satisfies the
test—Llamas pled guilty (without admitting his guilt, an apparently
common phenomenon in the realm of sex offenses, see State v. Smutlen,
571 A.2d 1305, 1306 (N.J. 1990) (indicating that defendants charged with
sex offenses are hesitant to elaborate on factual basis of plea); Jeffrey A.
Klotz et. al., Cognitive Restructuring Through Law: A Therapeutic
Jurisprudence Approach to Sex Offenders and the Plea Process, 15 U.
Puget Sound L. Rev. 579, 591 n.53 (1992) (discussing "anecdotal evidence
that sex offenders are hesitant to admit guilt at guilty plea hearings")) to
sexually exploiting the half-brother of one of the girls with whom he now
presses his constitutional right to associate, when the boy was only 12
years old and living under the same roof. The parole condition imposed by
NRS 176A.410(1)(1) does not prohibit him entirely from visiting either of
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his daughters. To the contrary, the district court expressly disavowed its
intention to impose such a prohibition, saying "I'm not going to cut
[Llamas] off and I'm not going to direct them to not have access to his
biological children, but there [are] going to be some restrictions." Instead,
the condition only requires that his parole and probation officer approve
said visitations. This serves, first, to ensure that Llamas will not have
any contact with the victim; a necessary safeguard, despite that the boy no
longer lives with his mother, because both Llamas and Sarah, with whom
Llamas lives, now deny the sexual abuse and therefore cannot be trusted
to protect the boy from contact with Llamas on their own accord. Second,
though Llamas states that he "is not a danger to his own children"—thus
suggesting that his biological children should have been excluded from the
probation condition's requirements—whether this is the case is not
entirely clear inasmuch as he pled guilty, without admitting guilt, to a
sexual offense against a young child with whom he lived and to whom he
appears to have been a quasi-parental figure. See Brandi L. Joffrion,
Sacrificing Fundamental Principles of Justice for Efficiency: The Case
Against Alford Pleas, 2 U. Deny. Crim. L. Rev. 39, 53 (2012) (discussing a
study that "found that seven out of eight sex offenders who entered Alford
pleas reoffended within five years of his or her release, a rate two to five
times higher than the general recidivism rate of sex offender") (internal
citations omitted); Patrick A. Langan, Erica L. Schmitt, Matthew R.
Durose, Dep.t of Justice, NCJ 198281, Recidivism of Sex Offenders
Released From Prison in 1994, 30, 36 (2003) (report by Department of
Justice statisticians stating that the rate of men previously convicted of a
sexual offense against a child who then commit a second offense against a
child is high compared to the rate for non sex-offenders and that, "[a]mong
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cases where the victim was under 18, the boy or girl was the [maul's own
child (16%), stepchild (16%), sibling or stepsibling (2%), or other relative
(13%) in nearly half of all child victim cases (46%)").
To counter the apparent necessity of this condition, Llamas
points, again, to Wolf Child, wherein the Ninth Circuit suggested that a
parole condition denying Wolf Child access to his children was not
necessary for their protection. See Wolf Child, 699 F.3d at 1094
(criticizing the federal district court's failure to "explain why the fact that
Wolf Child might pose a risk to certain minors demonstrates that he poses
a risk to his own children"). But Wolf Child, then 22-years-old, was
accused of assaulting an inebriated 16-year-old girl at a party. Id. at
1088. And in this way, his case is importantly different from Llamas's-
denying Wolf Child access to his children was not at all necessary to
prevent the victim of his offense from having to encounter him again, and
therefore did nothing to protect her. Further, the character of Wolf Child's
offense and his plea, which was not made via Alford, may also have made
his contact with his own children less risky for them. See Joffrion, 2 U.
Deny. Crim. L. Rev. at 53; Langan, supra at 31 (noting that "sex offenders
with a prior arrest for child molesting were more likely to be arrested for
child molesting than [other sex offenders1").
Thus, even assuming the tier of scrutiny most protective of
Llamas's rights, and giving the strictest possible interpretation to the
tailoring element thereof, the probation condition imposed by NRS
176A.410(1)(1) is constitutional as applied to him. The condition serves
the compelling interest of protecting his minor victim from further contact
with the man who pled guilty to sexually abusing him. And, in contrast to
the condition at issue in Wolf Child, this condition is needed to provide the
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victim that protection, else he would face the threat of seeing his alleged
abuser any time he wished to visit his biological mother.
Even accepting arguendo NRS 176A.410(1)(1)'s
constitutionality, Llamas presses that the district court abused its
discretion in applying the section to him. But see Igbino via v. State, 111
Nev. 699, 707, 895 P.2d 1304, 1309 (1995) ("[A] district court judge enjoys
wide discretion under grants of authority to impose such [probation]
conditions."). NRS 176A.410(1)(1) mandates that a district court impose
the condition in question when a "defendant is convicted of a sexual
offense and the court grants probation or suspends the sentence," see NRS
176A.410(1) ("the court shall. . . order as a condition of probation or
suspension of sentence" the various conditions outlined by subsections (a)-
(r)), circumstances Llamas does not dispute occurred, unless "the court
finds that extraordinary circumstances are present and the court enters
those extraordinary circumstances in the record." NRS 176A.410(6).
Thus, despite that Llamas makes no mention of NRS 176A.410(6), his
argument on this point is essentially that extraordinary circumstances
exist such that the district court's imposition of the probation term
required by NRS 176A.410(1)(1) was neither required nor justified. On
appeal Llamas points to no specific circumstances that are, in his view,
"extraordinary," but in the court below he claimed that his having a
biological child with whom he resides qualified as such.
In terms of the meaning of "extraordinary circumstances"—
the interpretation of which we undertake de novo, State v. Catanio, 120
Nev. 1030, 1033, 102 P.3d 588, 590 (2004)—ordinarily the phrase would
suggest events that are "out of course .. . beyond what is usual, regular, or
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customary." Merriam-Webster's Collegiate Dictionary 444 (11th ed. 2007).
And NRS 176A.410(6)'s legislative history likewise supports this—a
proponent of the bill that enacted the section explained that "the
court [has] discretion in extraordinary circumstances to not impose
some of the [probation] conditions. However, for the most part the
conditions must be imposed." Hearing on S.B. 325 Before the Senate
Judiciary Comm., 69th Leg., 1547 (Nev., May 1, 1997) (emphasis added).
The State denies that Llamas's status as a live-in father is at
all unusual—la sex offender] having his own biological children and
wanting access to them would not constitute an extraordinary condition.
That's probably the case for many sex offenders." And the district court
agreed, stating, "the fact that [Llamas] has biological children, I don't
think •is an extraordinary condition." Though the State apparently
provided no source for its assertion that "many sex offenders have their
own kids," neither has Llamas provided any counter (beyond continuing to
cite to Wolf Child as a case wherein a man convicted of an entirely
disparate sexual offense was permitted access to his biological children).
And, though there are aspects of Llamas's circumstances that, taken
together, might be out of course for sexual offense cases—for example, that
Llamas may have been black-out drunk, that Sarah has since withdrawn
the accusation and sustains a romantic relationship with him, that he
maintained his innocence via an Alford plea, and that the alleged victim
had no memory of the event—Llamas made no such argument based upon
them before the district court, nor does he discuss that possibility on
appeal. Thus, we reject his claim that the district court abused its
discretion in applying NRS 176A.410(1)(1) to him.
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We therefore ORDER the judgment of the district court
AFFIRMED.
, C.J.
Hardesty
Parraguirre
ce 0 J.
Douglas
J.
Gibbons
cc: Hon. James M. Bixler, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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