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Savely v. State (4/18/2008) ap-2159

Savely v. State (4/18/2008) ap-2159

                             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@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


REX REGAN SAVELY, )
) Court of Appeals No. A-9838
Appellant, ) Trial Court No. 3KN-02-1859 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2159 April 18, 2008
)
          Appeal  from the District Court,  Third  Judi
          cial District, Kenai, David S. Landry, Judge.

          Appearances:   S.  Joseph  Montague  (opening
          brief)   and  Josie  Garton  (reply   brief),
          Assistant   Public  Defenders,  and   Quinlan
          Steiner, Public Defender, Anchorage, for  the
          Appellant.    Kelly   J.  Lawson,   Assistant
          District  Attorney, and June Stein,  District
          Attorney,   Kenai,  and  Talis  J.   Colberg,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Rex  Regan Savely was convicted of contributing to  the
delinquency  of  a  minor for having sexual  intercourse  with  a
fourteen-year-old girl, A.M..  As part of his plea  bargain  with
the  State, Savely agreed to pay restitution in an amount  to  be
later determined pursuant to Criminal Rule 32.6(c)(2).
          At   the   restitution  hearing,  the  State  presented
testimony  from  A.M.s mother, A.M.s mental  health  provider  (a
psychologist),  and  a  physicians assistant  who  was  providing
medical  services  to A.M. in connection with a venereal  disease
(herpes).   This  testimony addressed A.M.s past  counseling  and
medical  expenses,  and  also  her anticipated  future  need  for
psychological  counseling and medical treatment.  Based  on  this
testimony and supporting documents, the State asked the  district
court to award approximately $15,900 for A.M.s expenses, plus  an
additional amount for future medical expenses.
          District Court Judge David S. Landry eventually awarded
slightly more than $40,000 in restitution.  Of this amount, $3000
was for A.M.s past expenses and $37,000 was for A.M.s anticipated
future expenses over the next ten years.
          In   this   appeal,  Savely  argues  that   there   was
insufficient  evidence that he was responsible for  A.M.s  herpes
infection, and therefore the district court erred when it awarded
restitution  for medical expenses and counseling  expenses  (both
past and future) connected with this disease.
          In  particular,  Savely points out that  A.M.  did  not
testify  at  the restitution hearing, and that A.M.s psychologist
was  the  only witness who directly asserted that A.M. contracted
herpes from her sexual contact with Savely.  Savely contends that
the  district  court  should not have relied  on  this  testimony
because  it  was  obviously hearsay.   But  hearsay  evidence  is
admissible  if there is no objection,1 and Savelys  attorney  did
not object at the time to the psychologists hearsay testimony.
          In  fact,  Savely now affirmatively relies  on  another
portion  of  the  psychologists testimony that was  also  clearly
hearsay:   the  psychologists assertion that  A.M.  was  sexually
active  prior  to  her contact with Savely.   On  appeal,  Savely
argues  that,  because A.M. was previously sexually  active,  and
because  there was no evidence that Savely himself  was  infected
with  herpes,  the  district court could not reasonably  conclude
that A.M. contracted this venereal disease from Savely.
          There  was,  however,  significant  other  evidence  to
support  a  finding  that  A.M. contracted  herpes  from  Savely.
Savely had sexual intercourse with A.M. on or about September 21,
2002.   A.M.s  herpes infection was preliminarily  diagnosed  and
treated  nine days later, on September 30, 2002.  At  that  time,
A.M.  was  running a fever; she was pale and was shivering.   She
was  also weak, sore, and could walk only with difficulty.  A.M.s
mother testified that her daughter had never been sick like  that
before, and that they did not know what was the matter with  her.
Thus,  the  timing of Savelys sexual contact with  A.M.,  coupled
with  the  time of onset of her symptoms, support the  conclusion
that Savely transmitted the herpes virus to A.M..
          It  is  true that the State presented no evidence  that
Savely was infected with herpes.  On the other hand, there was no
evidence  that  Savely  was  not  infected  with  herpes.    And,
regarding  A.M.s prior sexual activity, there was no evidence  of
the  timing  of  that activity, nor was there any  evidence  that
A.M.s prior sexual partner was infected with herpes.
          Taking  the  record  as a whole, we conclude  that  the
evidence  is sufficient to support the district courts conclusion
that Savely was responsible for infecting A.M. with herpes.
          However, we agree with Savely that the district  courts
          award of restitution for anticipated future counseling and
medical expenses is problematic.
          The  psychologist who testified about A.M.s anticipated
need   for   counseling  made  this  estimate  well  before   the
restitution  hearing.   At that time, the psychologist  predicted
that  A.M.  would need monthly counseling throughout high  school
(i.e.,  for another 3 years), for a total of 42 monthly sessions.
The  psychologist  also  predicted that A.M.  would  need  weekly
counseling  for three months at each of six future  junctures  in
her life (for example, when A.M. seriously contemplated marriage,
or when she had a child), for a total of another 72 sessions.
          But  by  the  time of the restitution hearing,  it  was
clear  that  the  psychologists predictions  were  not  accurate.
Rather  than  having monthly counseling sessions throughout  high
school,  A.M.  was  seeing  the psychologist  only  occasionally.
During  the  three years between October 2002 and  October  2005,
A.M.  and her parents had only thirteen counseling sessions  with
the psychologist  and eight of those sessions were in October and
November 2002.
          Moreover,   the   psychologist  testified   on   cross-
examination that it was not certain whether A.M. would ever  have
to  deal with all six of the life experiences that, according  to
the psychologist, would trigger the need for further counseling.
          Thus, the evidence does not support the district courts
award of restitution for future counseling expenses.
          We  note, moreover, that the district court appears  to
have  awarded  double  restitution for A.M.s counseling  expenses
during the period May 2004 through October 2005.
          The district court issued its restitution order in July
2006.   In  that order, the court awarded restitution  for  A.M.s
actual  counseling  expenses  through  October  2005  under   the
category   of   past  expenses.   That  is,  the  court   awarded
restitution for the relatively small number of sessions that A.M.
and  her  parents actually attended between May 2004 and  October
2005.   But  in addition, under the category of future  expenses,
the   district  court  separately  awarded  restitution  for  the
psychologists  mistakenly  high  prediction  of  the  number   of
sessions  that  would be required during this  same  period.   In
other words, the district court awarded restitution for the  past
expense  of the few counseling sessions that actually took  place
during  this  eighteen-month period,  and  the  court  separately
awarded  restitution  for the so-called  future  expense  of  the
predicted eighteen monthly counseling sessions that were supposed
to have been needed during this same period, but which never took
place   other  than  the few sessions for which  restitution  had
already been awarded as a past expense.
          The  district  courts award of restitution  for  future
medical  expenses  suffers from a similar  problem:   a  lack  of
supporting  evidence.  Although testimony was  presented  at  the
restitution  hearing regarding the cost of the  medications  that
are  needed to keep the herpes virus in check (there is no cure),
there  was  also  testimony  that no one  can  predict  with  any
certainty  exactly how frequently a person infected  with  herpes
will have outbreaks of that disease.
          It is true that, at the hearing, evidence was presented
that  A.M. had had to receive suppression therapy because of  the
frequency  of her outbreaks.  However, the evidence  also  showed
that  A.M. would be re-evaluated annually to see if her outbreaks
were   becoming  less  frequent   thus  allowing  her  to  forego
suppression  therapy in favor of episodic treatment, a  treatment
option that is significantly less costly.
          In  its  order, the district court split the difference
by  ordering Savely to pay for five years of suppression  therapy
and five more years of episodic therapy.  But the record does not
provide a reasoned basis for this decision.
          In  Lawrence  v. State, 764 P.2d 318, 322 (Alaska  App.
1988), we stated that when a sentencing court determines that  an
award  of  restitution  should  be made  for  anticipated  future
expenses,  [the  law] require[s] that these  expenses  be  firmly
established.  Here, the problem is that, even though it is firmly
established that A.M. will need future medical treatment for  her
herpes  infection,  the  nature and cost  of  that  treatment  is
uncertain.
          The  Alaska Supreme Court addressed this issue in Pluid
v. B.K., 948 P.2d 981 (Alaska 1997).  Pluid involved a tort claim
brought  by  the child victim of a sexual assault.   The  supreme
court  held that once the childs entitlement to compensation  had
been  proved  to  a reasonable probability, the  amount  of  such
[compensation]  ... need only be proven to such a  degree  as  to
allow the finder of fact to reasonably estimate the amount.   Id.
at 984 (emphasis in the original).
          To   formulate  a  reasonable  estimate  in  the   case
presented  here,  the  district  court  would  have  to  consider
evidence regarding A.M.s prognosis  both evidence of her  current
condition  and  expert testimony regarding the chances  that  she
would  continue  to  need suppression therapy or,  alternatively,
that  she  would  be able to switch to episodic  treatment.   The
district  court  would  then  have  to  consider  this  prognosis
evidence  in  combination with evidence concerning the  cost  and
expected duration of the various treatment methods that would  be
required, depending on A.M.s condition.
          For  these  reasons,  we  AFFIRM  the  district  courts
decision  that Savely is responsible for A.M.s herpes  infection,
and  we AFFIRM the district courts award of past damages, but  we
VACATE  the district courts award of future damages.   We  direct
the  district  court to re-assess those damages in light  of  our
discussion here.
          We do not retain jurisdiction of this case.

_______________________________
  1  See  Rusenstrom  v. Rusenstrom, 981 P.2d  558,  560  (Alaska
1999);  Bird v. Starkey, 914 P.2d 1246, 1248 n. 1 (Alaska  1996);
Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007); Cassell  v.
State, 645 P.2d 219, 220-21 (Alaska App. 1982); see also John  W.
Strong, McCormick on Evidence (4th ed. 1992),  55, Vol. 1, p. 221
(failure to object to hearsay is a waiver of the objection).

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