Davison v. State

307 P.3d 1, 2013 WL 3864468, 2013 Alas. App. LEXIS 83
CourtCourt of Appeals of Alaska
DecidedJuly 26, 2013
DocketNo. A-10228
StatusPublished
Cited by2 cases

This text of 307 P.3d 1 (Davison v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davison v. State, 307 P.3d 1, 2013 WL 3864468, 2013 Alas. App. LEXIS 83 (Ala. Ct. App. 2013).

Opinion

OPINION

Judge ALLARD.

Following a jury trial, Dennis Davison was convicted of sexually assaulting his fourteen-year-old daughter, R.D., based on penile penetration. Davison was acquitted of related sexual assault charges based on oral and digital penetration.

Davison's presentence report contained R.D.'s hearsay statements to the doctor who performed the sexual assault response team (SART) examination of R.D. The doctor stated that R.D. told her that Davison put his penis inside her vagina and that Davison also "inserted his fingers into her vagina and put his tongue on her vagina." At sentencing, Davison moved to strike the statements [2]*2about oral and digital penetration because he was acquitted of those charges.

The superior court denied the motion to strike. Because it appears that the presen-tence report procedures under Alaska Criminal Rule 85.1(F)(5) were not followed in this case, and that the superior court has not yet resolved whether the allegations of oral and digital penetration are true, untrue, or irrelevant, we remand Davison's case to the superior court for further findings.

Factual background and prior proceedings

On March 10, 2007, Dennis Davison's wife returned from a short trip. RD. told her mother that her father had sexually assaulted her while she was away. R.D.'s mother contacted the village physician's assistant, who in turn contacted the Alaska State Troopers. R.D.'s mother told the troopers what R.D. had told her. R.D.'s mother then took R.D. to the village health clinic, where she received basic medical attention.

The following day, the troopers arranged for R.D. and her mother to fly to Nome for a SART examination. Present at the exam was a doctor, a nurse, the investigating trooper, and an advocate from the Bering Sea Women's Group. RD. had difficulty answering any questions about the sexual assault, often responding with silence. The trooper told the doctor what the trooper had learned from R.D.'s mother. The doctor then asked R.D. if the trooper's version was "pretty much on target?" and R.D. responded, "Yeah." The doctor then asked R.D. a series of detailed yes-or-no questions about the sexual assault. Many of her responses were indiscernible.

Davison was charged with three counts of first-degree sexual assault, three counts of first-degree sexual abuse of a minor, and three counts of incest, based on three distinct acts of penile, digital, and oral penetration.

At trial, R.D. testified only to penile penetration. RD. affirmed that she told the SART doctor that Davison "put his penis inside [herj," and that this was a true statement. - She testified that she did not remember if she told the doctor that Davison had orally or digitally penetrated her. R.D. was not asked whether these sexual acts occurred.

Over Davison's objection, the SART doctor was allowed to testify that R.D. told her that Davison penetrated her vagina with his penis and that she also stated that he "inserted his fingers into her vagina and put his tongue on her vagina." Superior Court Judge Ben Esch ruled that these statements were admissible under Alaska Evidence Rule 808(4), the hearsay exception for statements made for the purpose of medical treatment.

The jury convicted Davison of one count each of sexual assault, sexual abuse of a minor, and incest, each based on penile penetration. The jury acquitted Davison of the charges based on digital and oral penetration.

The presentence report included a summary of the SART exam, including R.D.'s hearsay statements to the SART doctor. Davison moved to strike the statement regarding digital and oral penetration because he had been acquitted of those charges. The court declined to redact the statement from the presentence report, stating that the report was merely "summarizing" the information from the trooper reports and grand jury transcripts.

Following his sentencing, Davison appealed his conviction, arguing that the trial court erred in admitting R.D.'s hearsay statements to the doctor and in refusing to strike the statements from the presentence report. This Court affirmed the superior court's rulings.1

The Alaska Supreme Court granted Davi-son's petition for hearing and held that it was error (albeit harmless error) to admit R.D.'s hearsay statements under Evidence Rule 803(4) because R.D.'s SART examination was conducted primarily to gather evidence against Davison, and not for purposes of medical treatment.2 The supreme court then [3]*3remanded Davison's case to this Court for reconsideration of whether R.D.'s hearsay statements to the SART doctor alleging oral and digital penetration should have been struck from the presentence report.3

Why we conclude that a remand to the superior court is needed

As both this Court and the Alaska Supreme Court have recognized, "care must be taken to ensure that [presentence] reports are as accurate as possible." 4 Originally designed to assist the trial court in sentencing a defendant, these reports now follow a defendant through parole and probation and are often used in legal proceedings far removed from the original sentencing.5 The version of events contained in the presen-tence report often becomes the "official version" of the defendant's crime, and future decisions (including sex offender treatment decisions) are sometimes made in direct reliance on the factual accuracy of the report.

Alaska Criminal Rules 32.1 and 82.2 govern the preparation and litigation of presen-tence reports, - Under Criminal Rule 32.1(d)(5), the defendant must provide notice of any objections to the information contained in the presentence report. If the objection is to the factual accuracy of the information, the defendant must include an offer of proof explaining "any information upon which the defendant intends to rely to refute the objected-to information."6

Criminal Rule requires the trial court to take action regarding any disputed factual assertions in the presentence report. If the trial court "concludes either that an assertion of fact is not based on sufficiently verified information, or (if based on verified information) that it has not been proved," then the court must delete the assertion from the report.7 "Any assertion that has been proved only in part shall be modified in the report." 8

If the sentencing judge "determines that the disputed assertion is not relevant to its sentencing decision so that resolution of the dispute is not warranted, the court shall delete the assertion from the report without making any findings.9 As this Court noted in Cragg v. State, a sentencing judge's duty to strike controverted allegations from the presentence report extends not only to " '[all-legations that the judge finds are not established but also to allegations 'that the judge determine{s] will not be considered. "10

Here, the presentence report contained R.D.'s hearsay statements to the SART doctor alleging that Davison had engaged in oral and digital penetration of R.D. in addition to the penile penetration for which he was convicted. Davison objected to these statements on the ground that the jury had acquitted him of those charges.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Davison v. Houser
D. Alaska, 2023
Smith v. State
Court of Appeals of Alaska, 2016

Cite This Page — Counsel Stack

Bluebook (online)
307 P.3d 1, 2013 WL 3864468, 2013 Alas. App. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davison-v-state-alaskactapp-2013.