Brandon Michael Dale McGuffey v. State of Alaska

NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRANDON MICHAEL DALE
MCGUFFEY,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14384
Trial Court No. 1KE-22-00625 CR
O P I N I O N
No. 2824 — February 27, 2026
Appeal 	from 	the 	Superior 	Court, 	First 	Judicial 	District,
Ketchikan, Katherine H. Lybrand, Judge.
Appearances: Nathan H. Lockwood, Attorney at Law, under
contract with the Public Defender Agency, and Terrence Haas,
Public Defender, Anchorage, for the Appellant. Kayla H.
Doyle, 	Assistant 	Attorney 	General, 	Office 	of 	Criminal
Appeals, Anchorage, and Stephen J. Cox, Acting Attorney
General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Judge WOLLENBERG.

– 2 – 	2824
Pursuant to a plea agreement, Brandon Michael Dale McGuffey pleaded
guilty to one count of possession of child pornography.1 In exchange, the State
dismissed ten counts of distribution of child pornography and fourteen counts of
possession of child pornography. At the time of his offense, McGuffey was on probation
for a previous conviction for distribution of child pornography.2
The plea agreement left McGuffey’s probation conditions open to the
superior court, and at sentencing, the court imposed a number of general and special
probation conditions.
McGuffey 	now 	raises 	two 	challenges 	to 	his 	probation 	conditions.
McGuffey acknowledges that because he did not object to these conditions in the
superior court, he must show plain error.3
First, McGuffey challenges Special Condition No. 6. This condition
provides that, if recommended by his sexual offense treatment provider, McGuffey shall
not “knowingly enter places where children under the age of 16 congregate such as
parks, playgrounds, public pools, public locker rooms, or school grounds” and shall not
live within 500 feet of such places, “without written permission of [his] probation
officer.”
McGuffey acknowledges that, in Aketachunak v. State, we upheld a
similar condition against a challenge that the condition was overbroad and vague.4 But
he argues that the inclusion of “parks” in the list of potentially prohibited places renders
1 	Former AS 11.61.127(a) (2022). In 2024, the legislature amended this statute to
change the term “child pornography” to “child sexual abuse material.” SLA 2024, ch. 11,
§ 12.
2 	Former AS 11.61.125(a) (2014).
3 	See State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018).
4 	Aketachunak v. State, 2025 WL 880617, at *2 (Alaska App. Mar. 19, 2025)
(unpublished summary disposition).

– 3 – 	2824
the condition unconstitutionally overbroad and therefore distinguishable from the
condition considered in Aketachunak. He notes that parks are “ubiquitous throughout
the state,” and he argues that the condition could restrict his ability to reside in some
communities and prohibit him from entering state parks, national parks, or public places
where adults engage in the “free exercise of expressive activities.”5 McGuffey also
argues that the addition of “parks” renders the condition unconstitutionally vague
because the term “parks” provides insufficient notice as to which places are prohibited
and encourages arbitrary enforcement of the restriction.6
We decline to find plain error. As the State acknowledges, when read in
the context of the illustrative list of places where children are likely to congregate,
“parks” does not mean state parks, national parks, or public places where adults gather
to engage in expressive activities. Rather, it refers to children’s parks — public areas
that are intentionally set aside for recreation where children “typically gather as a
group.”7 Moreover, the condition only takes effect upon the sex offender treatment
provider’s recommendation and includes a scienter requirement, prohibiting McGuffey
from “knowingly” entering a park where children commonly congregate.8 Finally, the
5 	United States v. Grace, 461 U.S. 171, 177 (1983) (recognizing parks as “‘public
places’ historically associated with the free exercise of expressive activities”).
6 	See Oyoghok v. Municipality of Anchorage, 641 P.2d 1267, 1269-70 (Alaska
App. 1982).
7 	Aketachunak, 2025 WL 880617, at *2 (noting that similar condition “does not
prevent [the probationer] from being in any place where children can possibly be present;
rather, it prevents him from ‘knowingly’ being in a place where children under the age of
sixteen typically gather as a group”); see also State v. Bouchard, 228 A.3d 349, 365
(Vt. 2020) (upholding, against a vagueness challenge, a probation condition prohibiting
defendant from accessing places where children congregate, including “parks,” and noting
that the condition “does not . . . prohibit defendant from accessing a state park or a dog
park,” but only the portions of parks where children congregate).
8 	See United States v. Hamilton, 986 F.3d 413, 424 (4th Cir. 2021).

– 4 – 	2824
condition has a safety valve that authorizes the probation officer to approve certain
parks for McGuffey’s use. Given this safety valve and the narrowing construction
discussed above, we see no plain error.9
Second, McGuffey challenges three conditions containing the phrase
“sexually explicit material.” The first two of these conditions — Special Conditions
Nos. 12 and 13 — bar McGuffey from possessing “sexually explicit material” and
authorize warrantless searches of McGuffey’s person and property for the presence of
“sexually explicit material.” Special Condition No. 18 — the crux of McGuffey’s
challenge — defines “sexually explicit material” to include not only children engaged
in conduct listed in AS 11.41.455(a),10 but also adults engaged in that conduct if
(1) McGuffey is engaged in sex offender treatment and (2) the treatment provider
recommends this expanded definition. The condition requires that McGuffey be given
notice of the treatment provider’s recommendation and authorizes McGuffey to seek
clarification or modification of the provider’s recommendation from the court if he
believes 	the 	recommendation 	“unreasonably 	expands 	the 	definition 	to 	[include]
depictions of adults.”
McGuffey argues that the inclusion of adults in the definition of “sexually
explicit material” in Special Condition No. 18 fails to withstand special scrutiny
because there is no evidence that “his criminality is reasonably related to viewing
9 	See, e.g., State v. Wallmuller, 449 P.3d 619, 622-24 (Wash. 2019) (en banc)
(rejecting vagueness challenge to probation condition barring the defendant from “places
where children congregate” and noting that federal courts have uniformly upheld similar
conditions).
10 	Alaska Statute 11.41.455(a) — the crime of unlawful exploitation of a minor —
refers to the following actual or simulated conduct engaged in by a child under eighteen
years of age: (1) sexual penetration; (2) the lewd touching of another person’s genitals,
anus, or breast; (3) the lewd touching by another person of the child’s genitals, anus, or
breast; (4) masturbation; (5) bestiality; (6) the lewd exhibition of the child’s genitals; or
(7) sexual masochism or sadism.

– 5 – 	2824
sexually explicit material depicting only adults.” In support of his argument, McGuffey
relies on two prior cases in which we either vacated or remanded for further
consideration conditions that prohibited the possession of sexually explicit materials
depicting adults engaged in conduct set out in AS 11.41.455(a).11
But in those two cases, the condition prohibiting the possession of
sexually explicit material involving adults implicated the defendants’ First Amendment
rights without a case-specific justification and thus did not withstand special scrutiny.12
The provision in this case, with its primary focus on sexually explicit material involving
children, directly relates to McGuffey’s crime of conviction. We note that the court
found that McGuffey would need “significant monitoring” while on probation “given
his criminal history” and the fact that he reoffended while on probation for a similar
offense involving images of child pornography, including images depicting acts of
sexual abuse by adults against children.
Moreover, the provision barring possession of sexually explicit material
involving adults is only triggered if McGuffey is in sex offender treatment and his
treatment provider recommends it.13 The definition then provides a mechanism for
11 	See Galindo v. State, 481 P.3d 686, 693-94 (Alaska App. 2021); LaChappelle v.
State, 2023 WL 5607861, at *4-5 (Alaska App. Aug. 30, 2023) (unpublished).
12 	See Galindo, 481 P.3d at 693-94 (noting that the defendant had been “convicted of
a crime against an adult” and that “there is no evidence currently in the record that [his]
rehabilitation would be hampered by possessing or viewing the type of mainstream media
or images that the broad definition of ‘sexually explicit material’ in these conditions
seemingly includes” and therefore remanding for reconsideration); LaChappelle, 2023 WL
5607861, at *5 (directing the court on remand to strike the portion of a condition
prohibiting possession of sexually explicit materials involving adults and to reconsider
provision involving conduct depicting minors, noting that “the current record does not
suggest that [the defendant’s] offense was fueled by or otherwise related to viewing child
pornography”).
13 	See Whiting v. State, 2014 WL 6713200, at *2-3 (Alaska App. Nov. 26, 2014)
(unpublished) (vacating the portion of a condition that prohibited probationer from
possessing sexually explicit materials depicting adults or children and remanding with

– 6 – 	2824
McGuffey to challenge the restriction if he believes it is unwarranted or applied over
broadly. Thus, as the State notes, if the treatment provider cannot identify a link to
McGuffey’s actual needs or imposes a definition that does not provide sufficient notice
of what is prohibited, McGuffey can challenge the restriction at that time to ensure it is
no broader than necessary to facilitate McGuffey’s rehabilitation and the protection of
the public. These restrictions further distinguish this probation condition from the
conditions that we disapproved of in our prior cases. Under these circumstances, we
find no plain error.
For these reasons, the judgment of the superior court is AFFIRMED.
directions to make the prohibition conditional “on a sex offender treatment provider’s
recommendation”).