DAVISON v. STATE, A-10228 (Alaska App. 4-28-2010)

DENNIS DAVISON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10228.Court of Appeals of Alaska.
April 28, 2010.

Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge, Trial Court No. 2NO-07-155 CR.

Daniel Bair, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Dennis Davison was convicted of sexually assaulting his daughter, R.D., who was fourteen at the time of the assault. On appeal, Davison argues that the trial judge, Superior Court Judge Ben Esch, erred in admitting R.D.’s statements which shePage 2
made to the examining physician during a physical examination — these statements alleged that she had been sexually assaulted. Davison argues that Judge Esch erred in admitting these statements as statements for purposes of medical diagnosis or treatment under Alaska Evidence Rule 803(4). We uphold that ruling. Davison also argues that Judge Esch committed plain error by allowing evidence of incriminatory statements which Davison made to his wife during a conversation which she surreptitiously recorded under the authority of a Glass warrant. We do not find plain error.

Factual and procedural background

Dennis Davison and his wife, Tracy, lived in Elim in 2007. R.D., their oldest daughter, was fourteen years old at the time. Tracy was out of town on business on March 9, 2007. When Tracy returned to Elim on March 10, R.D. immediately told her mother that Davison had sexually abused her. Tracy called the village health aide and was soon contacted by Alaska State Trooper Honie Abercrombie. Tracy took R.D. to the health clinic, where R.D. was given medication in case she had been exposed to a sexually transmitted disease.

On March 11, Tracy took R.D. to Nome for a sexual assault examination. This was the first substantial questioning of R.D. The examination was conducted by Dr. Deborah Flint-Daniel. Three other people — Trooper Abercrombie, a nurse, and a women’s advocate — were also present.

Dr. Flint-Daniel explained to R.D. that the exam had two purposes — to ensure her health and to gather evidence of the sexual assault. During the interview, R.D. had difficulty answering any questions related to the sexual abuse. Trooper Abercrombie asked some questions of R.D. during the examination. Dr. Flint-Daniel testified that, during the examination, R.D. stated that, while she was asleep, “someonePage 3
came into her room and began fondling her genitals. There was licking of the genitals, there was fondling of breasts. [R.D.] reported that there was [a] penis inserted into her vagina.”

Trooper Abercrombie obtained a Glass warrant to record a conversation between Tracy and Davison. On March 12 (the day after R.D.’s physical examination), Tracy and Trooper Abercrombie returned to Elim. Trooper Abercrombie gave Tracy a recorder but did not instruct her on the kinds of questions to ask.

Tracy picked Davison up at a friend’s house. Davison was armed and intoxicated. They spoke for about an hour and twenty minutes. Tracy recorded this conversation. (The recording of this conversation was admitted into evidence and played for the jury without objection.)

After his conversation with Tracy, Davison turned himself in to Trooper Abercrombie. The State indicted Davison on three counts each of first-degree sexual assault, [fn1] first-degree sexual abuse of a minor, [fn2] and incest[fn3] (each based on three distinct acts of penile, digital, and oral penetration).

Davison did not testify at trial. R.D. testified. In response to leading questions, R.D. affirmed that she had told her mom that her father had touched her in a bad way and that she told her mom that Davison had “put himself inside [her].” R.D. stated that she had told her mom the truth. She said that she tried to make her dad stop by pushing him away, but that this didn’t work. R.D. also testified about the sexual assault physical examination. She stated that the doctor had asked her whether her dadPage 4
had put his penis inside her vagina. She answered, “Yeah.” She was asked whether what she said to the doctor was true. She answered, “Yes.” She stated that she did not remember whether she told the doctor that her dad had performed oral sex on her or whether he had put his fingers inside her vagina. She was never asked whether these sexual acts had actually occurred.

The jury convicted Davison on one count each of sexual assault in the first degree, sexual abuse of a minor in the first degree, and incest. All of the verdicts were based on the theory that Davison penetrated R.D. with his penis. The jury acquitted Davison on the charges which were based on the theory that Davison had engaged in digital or oral penetration. Judge Esch merged the three convictions because all of them were based on the same underlying act of penetration.

Judge Esch did not err in ruling that R.D.’s statements to Dr. Flint-Daniel were admissible as statements made for medical diagnosis or treatment

Alaska Evidence Rule 803(4) allows hearsay evidence of:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The commentary to the Alaska Rules of Evidence explains that the rationale behind Rule 803(4) is primarily based on the trustworthiness of these statements.

Even those few jurisdictions which have shied away from generally admitting statements of present condition have allow ed them if made to a physician for purposes of diagnosis and treatment in view of the patient’s strong motivation to be truthful. The same guarantee of trustworthiness extends toPage 5
statements of past conditions and medical history, made for purposes of diagnosis or treatment. It also extends to statements as to causation, reasonably pertinent to the same purposes.

We apply a two-part test to determine whether a statement falls under this exception: “First, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis and treatment?”[fn4] Thus, the guarantees of trustworthiness stem from the patient’s own self-interest, and the fact that a physician would find the statement reliable enough to base treatment on.[fn5]

At trial, the State called Dr. Flint-Daniel to testify about her forensic examination of R.D., including the statements which R.D. made to her during the examination. Davison raised a hearsay objection to Dr. Flint-Daniel’s testimony. He argued that many of the questions which were asked during the examination were asked by the trooper and the women’s advocate who were present during the examination. He argued that the court needed to examine the statements before it could rule on whether R.D.’s statements were for the purpose of medical diagnosis. Davison conceded that he was not alleging that the doctor had asked any questions that were not for a medical purpose. But he argued that the examination was compromised by the presence and participation of the women’s advocate and a police officer. Judge Esch overruled the objection.

On appeal, Davison expands on the objection he made at trial. He argues that the sexual assault examination in Nome was not conducted for purposes of medical diagnosis and treatment but was actually conducted to gather evidence for trial. HePage 6
argues that the “presence of law enforcement personnel in the examination room would be enough to eradicate the incentive for honesty on which the hearsay exception is based.” Davison relies on two cases where courts have found that statements made during a physical examination of a sexual assault victim did not qualify as statements made for purposes of medical diagnosis or treatment.

Davison first relies on State v. Butcher.[fn6] But in that case, the court concluded that the “primary function [of the examination] was to collect evidence to support a conviction.”[fn7] The court relied on the fact that the examination was conducted at least two months after the alleged rapes of the victims and that the victims had already been examined by another physician.[fn8] The court concluded that the doctor was “a `manufactured witness’ for the State.”[fn9]

Davison also relies on State v. Ortega.[fn10] But in that case, the court concluded that the purpose of the physical examination had been “primarily intended to establish past facts rather than for purposes of medical treatment.”[fn11]

Davison points out that R.D. had received some sort of treatment at the clinic before she was examined by Dr. Flint-Daniel. And he points to the presence and participation of the trooper and the women’s advocate at the examination. But the record does not show what sort of treatment R.D. received at the clinic before she saw Dr. Flint-Daniel,Page 7
apparently because Davison never raised this point in the trial court. And Davison conceded that the questions that Dr. Flint-Daniel asked were for a medical purpose. His argument in the trial court was simply that the presence and participation of the trooper and the advocate undermined any medical nature of the physical examination.

At the beginning of the examination, Dr. Flint-Daniel explained to R.D. that the purpose of the examination was to insure her health. But she also indicated that a purpose of the examination was to gather evidence. As the court recognized in Webster v. State, [fn12] it is common for a physical examination conducted after a sexual assault to be both for medical and forensic purposes.[fn13] The question under the evidence rule is whether “the declarant’s motive [was] consistent with the purpose of the rule; and [whether] it is reasonable for the physician to rely on the information in diagnosis and treatment.”[fn14]

In her testimony, Dr. Flint-Daniel explained the medical reasons why it was important to obtain a “history” from a sexual assault patient — that is, obtain the patient’s description of what happened to her. Dr. Flint-Daniel testified that she questioned R.D. about the details of the sexual assault for these medical purposes, and the doctor recounted R.D.’s answers to her questions.

As we have explained, Davison did not dispute that Dr. Flint-Daniel’s questions were asked for the purposes of medical diagnosis and/or treatment. And, although the record indicates that R.D. knew that her answers to these questions wouldPage 8
likely be used to develop a criminal case, the record also indicates that R.D. understood that she was being asked these questions for medical purposes. Judge Esch could therefore reasonably conclude that R.D.’s answers to the doctor’s questions were admissible under Evidence Rule 803(4).

In addition, as we have already noted, R.D. took the stand at Davison’s trial and offered her personal account of the sexual assault. In particular, when R.D. was asked whether she told Dr. Flint-Daniel that Davison inserted his penis into her body, R.D. affirmed that she said this to the doctor — and that it was true. Because the State presented the victim’s live testimony on this issue, any possible error in allowing Dr. Flint-Daniel to give a hearsay account of R.D.’s description of this crime was harmless.

Judge Esch did not commit plain error by admitting the recordingof the conversation between Davison and Tracy

Trooper Abercrombie obtained a Glass warrant authorizing Tracy to record a conversation with Davison. Tracy recorded a conversation which she had with Davison. During the conversation, Davison asked Tracy what kind of sentence he was facing. Tracy told him two years. Davison actually faced a presumptive term of twenty to thirty years ofimprisonment.[fn15] Later, at trial, Tracy explained that she had simply guessed about the penalty Davison faced.

Davison argues that Tracy’s statement that he faced two years of imprisonment was a promise of leniency. In addition, he argues that Tracy made other comments which, considering the totality of the circumstances, worked to overbear his will — for example, she made promises that he could maintain contact with hisPage 9
daughters. She referred to their close marital relationship and promised to help get him medical care. Davison points out he was intoxicated at the time of this interview and therefore was particularly vulnerable to Tracy’s statements. Davison argues that his statements were therefore involuntary.

Davison concedes that he never objected to the admission of his recorded statement into evidence. He therefore must establish plain error. There is no indication that Davison had any reason to believe that Tracy had any authority to offer him leniency or that she was doing anything other than guessing what kind of penalty he faced. Furthermore, there is no evidence that Davison made any admissions based upon any inducements. Davison was very circumspect in the statements that he made to Tracy. He never directly admitted his guilt. He did state that he would be going to jail for two years. And he stated, “I hurt my kid.” And, in response to Tracy’s question whether he had “ever touched any of the other kids,” he responded, “No.” These statements were selected from an hour and twenty minutes of conversation. Although the State could certainly argue that Davison’s statements were inconsistent with innocence, Davison never admitted the offense. Under these circumstances, Davison has not established that admission of his statements constituted plain error because the statements were involuntary.[fn16]
Judge Esch did not err in failing to redact R.D.’s statement inthe presentence report

The presentence report sets out the background of Davison’s offense. It describes R.D.’s statement to Dr. Flint-Daniel in which R.D. stated that “the defendantPage 10
inserted his penis into her vagina. She also stated that he inserted his fingers into her vagina and put his tongue on her vagina.”

Davison asked Judge Esch to redact R.D.’s statement that Davison “inserted his fingers into her vagina and put his tongue on her vagina.” Davison argued that because he was acquitted on the charges which alleged digital and oral penetration, R.D.’s statements could not properly remain in the presentence report.

Alaska Criminal Rule 32.1(f)(5) requires the trial court to resolve disputed assertions in the defendant’s presentence report and to delete unproven assertions from the report. But a jury’s verdict of acquittal does not prove the defendant’s factual innocence; it only establishes that the State failed to prove the charge beyond a reasonable doubt.[fn17]
And, the trial court may rely on sufficiently verified hearsay statements in the presentence report, unless the defendant makes a testimonial denial of the matter asserted.[fn18] Davison never made a testimonial denial.

Judge Esch observed both R.D.’s and Dr. Flint-Daniel’s testimony. R.D.’s statement to Dr. Flint-Daniel that Davison “inserted his fingers into her vagina and put his tongue on her vagina” was properly admitted at trial as a statement for medical diagnosis or treatment. Under these circumstances Judge Esch did not abuse his discretion in finding that the hearsay statement was “sufficiently verified” and refusing to strike it from the presentence report.[fn19]Page 11
The trial court did not err in formulating the judgment

The jury convicted Davison of the one count of sexual assault in the first degree, one count of sexual abuse of a minor in the first degree, and one count of incest. Davison points out that all three convictions arose from a single occurrence, Davison’s act of penetrating R.D.’s vagina with his penis. He argues that, in issuing his judgment, Judge Esch erred in having the judgment reflect that the jury had convicted him of sexual assault in the first degree and sexual abuse of a minor in the first degree, because “a judgment should list only one conviction when two offenses merge.” He also argues that Judge Esch erred in having the judgment reflect that the jury convicted Davison of incest, because incest is a lesser-included offense of sexual assault and thus Judge Esch should not have included it in the judgment.

We reject Davison’s argument. In Hurd v. State, [fn20] we indicated that when a jury convicts a defendant on two counts that are duplicative, a “ruling that [the] counts are duplicative casts no doubt on the validity of the jury’s fact-finding or its conclusion that the defendant is guilty of the conduct alleged in both counts.”[fn21] We held that the proper course of action in this circumstance was for the court to set out the offenses for which the jury convicted the defendant but to only enter a single conviction and sentence premised on the juryverdict.[fn22]

That is what the court did in this case. The judgment reflects the fact that the jury convicted Davison of sexual assault in the first degree, sexual abuse of a minorPage 12
in the first degree, and incest. But the judgment reflects that Davison was “convicted of a single combined count and [received] one sentence for this conviction.”

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.41.410(a)(1).

[fn2] AS 11.41.434(a)(2).

[fn3] AS 11.41.450(a)(1).

[fn4] Sluka v. State, 717 P.2d 394, 399 (Alaska App. 1986) (quotingUnited States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)).

[fn5] Id. at 399.

[fn6] 866 N.E.2d 13 (Ohio App. 2007).

[fn7] Id. at 26.

[fn8] Id. at 21, 25-26.

[fn9] Id. at 25-26.

[fn10] 175 P.3d 929 (N.M. App. 2007).

[fn11] Id. at 933.

[fn12] 827 A.2d 910 (Md. Ct. Spec. App. 2003).

[fn13] Id. at 920.

[fn14] Sluka, 717 P.2d at 399 (quoting Iron Shell, 633 F.2d at 84).

[fn15] AS 12.55.125(i)(1)(A)(ii).

[fn16] See Grandstaff v. State, 171 P.3d 1176, 1188-90 (Alaska App. 2007).

[fn17] Hess v. State, 20 P.3d 1121, 1125 (Alaska 2001).

[fn18] Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989).

[fn19] See Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977), aff’d onreh’g.

[fn20] 107 P.3d 314 (Alaska App. 2005).

[fn21] Id. at 322 (footnote omitted).

[fn22] Id.Page 1