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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Davison v. State (8/10/2012) sp-6702

Davison v. State (8/10/2012) sp-6702

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



DENNIS DAVISON,                                 ) 

                                                )        Supreme Court No. S-13877 

                Petitioner,                     )        Court of Appeals No. A-10228 

                                                ) 

        v.                                      )        Superior Court No. 2NO-07-00155 CR 

                                                ) 

STATE OF ALASKA,                                )        O P I N I O N 

                                                ) 

                Respondent.                     )       No. 6702 - August 10, 2012 

                                                ) 



                Petition for Hearing from the Court of Appeals of the State of 

                Alaska, on appeal from the Superior Court of the State of 

                Alaska,    Second Judicial District, Nome, Ben Esch, Judge. 



                Appearances:       Brooke Berens, Assistant Public Advocate, 

                and     Rachel     Levitt,   Public    Advocate,      Anchorage,      for 

                Petitioner.     Kenneth     M.    Rosenstein,     Assistant    Attorney 

                General, Anchorage, and John J. Burns, Attorney General, 

                Juneau, for Respondent. 



                Before:       Carpeneti,     Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices.     [Christen, Justice, not participating.] 



                STOWERS, Justice. 


----------------------- Page 2-----------------------

I.      INTRODUCTION 



               Dennis Davison was convicted of sexually abusing his fourteen-year-old 

daughter, R.D.1     At trial, the doctor who performed a Sexual Assault Response Team 



(SART)      examination     of  R.D.   testified  to  statements    R.D.   had  made    during   the 



examination.     Davison argues that the doctor's testimony regarding R.D.'s statements 



was   not   admissible   under   Alaska   Evidence   Rule   803(4),   the   hearsay   exception   for 



statements made for the purpose of medical treatment, because the examination was 



conducted primarily to gather evidence against him and not for purposes of medical 



treatment.     Davison     also  argues   that  the  trial  court  erroneously    included    in  his 



presentence   report   statements   R.D.   had   made   during   the   sexual   assault   exam   that 



pertained to offenses he was charged with but acquitted of at trial. 



               We agree that the doctor's hearsay testimony was not admissible under 



Rule 803(4), but hold this error was harmless with respect to Davison's conviction.  We 



remand the sentencing issue to the court of appeals to consider whether the hearsay 



statements were sufficiently verified for inclusion in Davison's presentence report. 



II.     FACTS AND PROCEEDINGS 



        A.     Facts 



               In 2007, Dennis Davison and his wife Tracy lived in Elim with their four 



daughters.    Their oldest daughter, R.D., was 14 years old.         Tracy was away from Elim 



on March 9,   2007.      When Tracy returned home on March 10, R.D. told Tracy that 



Davison had sexually assaulted her while Tracy was away. 



               Tracy immediately contacted the village physician's assistant, who then 



contacted the Alaska State Troopers. Trooper Honie Abercrombie telephoned Tracy and 



Tracy repeated R.D.'s sexual assault allegations to the trooper. 



        1      We use initials to protect the privacy of the minor. 



                                                -2-                                             6702 


----------------------- Page 3-----------------------

                R.D.  spent that night at the village clinic with her mother and sisters.  She 



received some basic medical attention while there. 



                The next day, Trooper Abercrombie arranged a SART examination at the 



hospital in Nome.   The trooper met the family at the Nome airport and took them to the 



hospital. 



                At   the   hospital,   Dr.   Deborah   Flint-Daniel   conducted   the   SART   exam. 



Three other people were present during the exam: Trooper Abercrombie, a nurse, and an 



advocate from the Bering Sea Women's Group.  Dr. Flint-Daniel explained that Trooper 



Abercrombie had requested the SART exam: "[T]he exam . . . . has to be requested by 



this officer here.    You guys have already talked about that and she's asked that we go 



ahead and do this exam today." The doctor also read R.D. a consent form explaining that 



the information gathered from the medical exam would be used for evidentiary purposes: 



                [H]ere, let me read [this consent form] with you.             That you 

                authorize [the hospital] to give information to - in this case 

                it would be Alaska State Troopers. . . . And the information 

                will be used or disclosed for an investigation and prosecution 

                of any crime that may have been committed . . . . 



                It   says   you   understand   that   the   health   care   providers   are 

                required to report to law enforcement agencies cases in which 

                medical care is sought when injuries have been inflicted upon 

                any person in violation of state law. . . . I understand that a 

                separate      medical    examination       for  evidence      of  sexual 

                assault . . . can be conducted by   a   health care provider to 

                discover and preserve evidence of assault.  If conducted the 

                report of the examination and any evidence obtained will be 

                released to law enforcement authorities. I understand that the 

                exam may include the collection of reference specimens. . . . 

                Knowing   this,   I   consent   or   give   permission   to   a   medical 

                examination for evidence of sexual assault. 



                                                   -3-                                             6702
 


----------------------- Page 4-----------------------

The form expressly described the examination as a forensic exam: "In order to facilitate 



services   it   is   understood   that   the   agencies   involved   in   the   team   will   be   exchanging 



information about the forensic examination . . . and the interview." 



                Dr. Flint-Daniel then proceeded to collect a verbal history from R.D.  R.D. 



had a very difficult time answering questions about the sexual assault and responded 

with silence to many of the doctor's questions.2           After several unsuccessful attempts to 



question R.D. about the assault, Trooper Abercrombie offered to relay what Tracy had 



told her about the incident.      After the trooper told the doctor what Tracy had reported, 



Dr. Flint-Daniel asked R.D., "[I]s that pretty much on target?"  R.D. responded, "Yeah." 



Dr. Flint-Daniel then proceeded to ask R.D. a series of more detailed yes or no questions 



about the incident, to which R.D. responded.            Later, over Davison's objection at trial, 



Dr.   Flint-Daniel summarized what R.D. had told her:               someone came into her room 



        2	      The following exchange is a representative sample from the transcript: 



                Q:	      And then what happened?  You said you went to bed 

                        what, 1:30 or something like that? 

                A:	      (inaudible) 

                Q:	      Then what happened?
 

                        (silence)
 

                Q:	      Did you (indiscernible)?
 

                        (silence)
 

                Q:	      Who shares your bedroom with you?
 

                        (silence)
 

                Q:	      Did someone come into your room?
 

                        (silence)
 

                Q:	      Hard to talk about?
 

                        (silence)
 

                Q:	      What can you tell me [R.D.]? 

                A:	      I don't know. 



                                                  -4-	                                            6702
 


----------------------- Page 5-----------------------

while   she   was   sleeping,   touched   her   breasts   and   genitals,   licked   her   genitals,   and 



penetrated her vagina with a finger and penis. 



                After     concluding      the   verbal   history    portion    of   the  SART      exam, 



Dr. Flint-Daniel performed a physical exam.  The physical exam showed that R.D. had 



two healing abrasions in her genital region.  The doctor also obtained swabs from inside 



her mouth and genital area to test for various sexually transmitted diseases. 



        B.      Proceedings 



                The State charged Davison with three counts of first-degree sexual assault, 

three counts of first-degree sexual abuse of a minor, and three counts of incest.3                   The 



three counts for each type of crime corresponded to digital, oral, and penile penetration. 



                At trial, in response to leading questions, to which no objection was made, 



R.D. testified to penile penetration.  She first affirmed that she had told her mother that 



Davison "put himself inside [her]."   When asked if what she said to her mother was true, 



she responded, "Yes."  She then affirmed that she had told Dr. Flint-Daniel that Davison 



"put his penis inside [her] vagina."  When asked if what she said to the doctor was true, 



she responded, "Yes." R.D. also testified that she did not remember whether she had told 



the doctor that Davison performed oral sex on her or inserted his fingers into her vagina. 



                The State called Dr. Flint-Daniel as a witness and asked her to summarize 



the   medical   history   that   R.D.   provided   during   the   SART   exam.     Davison   objected, 



arguing that this testimony did not fit within the medical treatment hearsay exception 



under Alaska Evidence Rule 803(4).   The trial court allowed Dr. Flint-Daniel to testify 



to R.D.'s statements, noting that Davison had an "ongoing objection" to her testimony. 



Dr. Flint-Daniel testified that R.D. said her assailant had penetrated her digitally, orally, 



        3       Alaska Statute 11.41.410(a)(1) (first-degree sexual assault); Alaska Statute 



11.41.434(a)(2) (first-degree sexual abuse of a minor); Alaska Statute 11.41.450(a)(1) 

(incest). 



                                                   -5-                                                6702 


----------------------- Page 6-----------------------

and with his penis.  The doctor also testified that her physical exam of R.D. revealed two 



healing abrasions in the genital region and that the results of the physical exam were 



consistent with R.D.'s report of sexual assault.           Finally, Dr. Flint-Daniel testified that 



"[l]ab work is routinely obtained," but the lab work she obtained "was sent away" and 



she had "not seen those reports." 



                The jury convicted Davison of one count each of first-degree sexual assault, 



sexual abuse of a minor, and incest. All of the verdicts were based on penile penetration. 



The jury acquitted Davison of the charges based on digital and oral penetration. The trial 



court merged the convictions because they were all based on the same underlying act of 



penetration. 



                The trial court sentenced Davison to 30 years of imprisonment with 10 



years   suspended.     The   presentence   report   included   a   summary   of   the   SART   exam, 



including R.D.'s statements alleging digital and oral penetration.               Davison objected to 



the inclusion of these statements in the report, arguing that the jury had acquitted him of 



all counts related to digital and oral penetration.         The trial court declined to redact the 



statements. 



                Davison      appealed,     arguing    in  part  that   the  trial  court   erroneously: 



(1) admitted Dr. Flint-Daniel's testimony regarding statements that R.D. made during the 



SART   exam;   and   (2)   failed   to   redact   R.D.'s   statements   regarding   digital   and   oral 

penetration from the presentence report.4          The court of appeals affirmed.5         We granted 



Davison's petition for hearing on these issues. 



        4       Davison v. State , Mem. Op. & J. No. 5589, 2010 WL 1729170, at *1, 3-5 



(Alaska App., Apr. 28, 2010). 



        5        Id. at *6. 



                                                   -6-                                               6702 


----------------------- Page 7-----------------------

III.	   STANDARD OF REVIEW 



               We    review   the  trial  court's  admission   of  evidence   for  an  abuse   of 

discretion.6  Erroneously admitted evidence is harmless if it "did not appreciably affect 



the jury's verdict."7  We also review a trial court's decision to include disputed factual 



allegations in a presentence report for an abuse of discretion.8 



IV.	   DISCUSSION 



       A.	     Hearsay Statements From The SART Exam Were Not Admissible As 

               Statements      Made     For   The   Purpose     Of   Medical     Diagnosis    Or 

               Treatment, But The Error Was Harmless As To The Conviction. 



               Hearsay - an out-of-court statement offered to prove the truth of the matter 

asserted in that statement - is not admissible at trial.9      Alaska Evidence Rule 803(4) 



creates an exception to this rule for statements made for the purpose of medical diagnosis 



or treatment: 



               The following are not excluded by the hearsay rule . . . . 



               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. 



This exception is based on the rationale that patients have a strong motivation to be 



truthful when their own health and well-being are at stake, and that a fact reliable enough 



       6       Jeffries v. State , 169 P.3d 913, 924 (Alaska 2007). 



       7       Id . (quoting Love v. State , 457 P.2d 622, 634 (Alaska 1969)). 



       8       See Cragg v. State, 957 P.2d 1365, 1366 (Alaska App. 1998). 



       9       Alaska R. Evid. 801(c), 802. 



                                               -7-	                                        6702
 


----------------------- Page 8-----------------------

for a physician to base treatment on is also reliable enough to be admitted as evidence.10 



In accordance with this rationale, we adopt the two-part test articulated by the court of 



appeals   in  Sluka   v.   State   to   determine   whether   this   hearsay   exception   applies   to   a 



particular statement: " '[F]irst 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.' "11 



                 Davison argues that the circumstances surrounding R.D.'s SART exam 



demonstrate       her  statements     were    not  made    for  the   purpose    of  obtaining    medical 



treatment.    The circumstances he relies on include the following:                (1) Dr. Flint-Daniel 



emphasized the exam's evidence-gathering purposes when explaining   the process to 



R.D.;    (2)   Trooper     Abercrombie       arranged     the  exam     and   actively   participated     in 



questioning R.D.; (3) R.D. had already received some medical treatment at the clinic in 



Elim; and (4) Dr. Flint-Daniel did not prescribe any additional treatment or examine the 



results of the lab tests that she ordered. 



                 The   State   argues   that   Davison's   objection      at   trial   was   insufficient   to 



preserve this issue for review on appeal.  The State also argues that other circumstances 



demonstrate R.D. understood the medical purpose of the SART exam - namely, the 



exam   took   place   in   a   hospital with   a   doctor   -   and   that   none   of   the   circumstances 



        10       See Sluka v. State, 717 P.2d 394, 399 (Alaska App. 1986) ("Statements 



made to facilitate medical diagnosis and treatment are likely to be truthful and reliable 

because declarants are unlikely to fabricate where their own health and wellbeing is at 

stake; and a fact reliable enough to serve as a basis for diagnosis and treatment is also 

reliable enough to escape hearsay proscription.") (citing United States v. Iron Shell, 633 

F.2d 77, 83-84 (8th Cir. 1980)); see also Commentary to Alaska Rule of Evidence 803(4) 

("Even      those   few   jurisdictions    which    have   shied    away    from   generally    admitting 

statements of present condition have allowed them if made to a physician for purposes 

of diagnosis and treatment in view of the patient's strong motivation to be truthful."). 



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



                                                    -8-                                              6702
 


----------------------- Page 9-----------------------

Davison relies on establish her motivation in answering Dr. Flint-Daniel's questions was 

for a purpose other than seeking medical treatment.12 



                1.      Davison properly preserved his objection. 



                To preserve an issue for appeal, a party must clearly state the grounds for 

his objection "so that the [superior] court may intelligently rule upon the objection."13 



 The State argues that Davison failed to object on the specific basis that R.D.'s statements 



were not made for the purpose of obtaining medical treatment, and that this deprived the 



State of the opportunity to lay a specific foundation on that issue at trial. 



                Davison objected to Dr. Flint-Daniel's testimony on the grounds that R.D.'s 



statements from the SART exam were not admissible as statements made for purposes 



of medical diagnosis or treatment, arguing that the process as a whole was tainted by the 



evidentiary purpose of the exam and the trooper's active role in the exam: 



        12      The State also argues that R.D.'s statements from the SART exam were not 



hearsay     because   her   statements   regarding   penile   penetration   were   prior   consistent 

statements under Evidence Rule 801(d)(1)(B), and her statements regarding digital and 

oral penetration were prior inconsistent statements under Evidence Rule 801(d)(1)(A). 

Because the State expressly abandoned this argument at oral argument, and we do not 

rely on R.D.'s prior statements in affirming Davison's conviction, we do not address 

these arguments more fully here.         However, we note R.D.'s prior statements regarding 

penile penetration were admissible as prior consistent statements under Evidence Rule 

801(d)(1)(B), which provides a statement is not hearsay if the statement is "consistent 

with the declarant's testimony [at trial] and is offered to rebut an express or implied 

charge   against   the   declarant   of   recent   fabrication   or   improper   influence   or   motive." 

R.D.'s prior statement to Dr. Flint-Daniel regarding penile penetration was consistent 

with R.D.'s testimony at trial, and Davison argued at trial that she was motivated to 

fabricate the sexual assault allegations due to her troubled relationship with her father 

and her desire to move away from Elim. 



        13      Williams v. State, 629 P.2d 54, 62 (Alaska 1981) (quoting State v. Miller, 



440 P.2d 792, 795 (N.M. 1968)). 



                                                  -9-                                             6702
 


----------------------- Page 10-----------------------

                 [O]ne of the problems with the SART interview is that the 

                 advocate   and   the   police   officer   take   the   lead  role   in   the 

                 questioning. . . . So I think the Court has to wade through the 

                 transcript and parse out what this witness can and can't testify 

                 to.     But   the   whole    process     of  the   SART      exam     gets 

                 compromised   when   .   .   .   what   happened   in   this   case   takes 

                place [and] compromises the process for evidentiary reasons. 



Davison      requested     that   the  trial  court    review    the  transcript    prior   to  admitting 



Dr. Flint-Daniel's testimony.  The court refused to review the transcript and allowed the 



State to continue questioning Dr. Flint-Daniel, noting that Davison had an "ongoing 

objection" to her testimony.14 



                 Although Davison's verbal objection at trial did not articulate the finer 



points of his argument on appeal, it was sufficient to call into question the issue of 



whether R.D.'s statements constituted statements for the purpose of medical diagnosis 



and   treatment   in   light   of   the   exam's   evidentiary   purpose     and   the   trooper's   active 



involvement.      Davison has preserved this issue for appeal. 



                 2.	     R.D.'s hearsay statements were not admissible under the medical 

                         treatment exception. 



                 Under the two-part test described above, we first consider whether R.D. 



was motivated by a desire to seek medical diagnosis and treatment when giving her 



history   during   the   SART   exam.      We   have   not   yet   addressed   the   application   of   the 



        14       Although no Alaska case or court rule specifically permits or prohibits 



continuing objections, the practice has been widely adopted by trial counsel and trial 

courts.  See, e.g., Vaska v. State, 135 P.3d 1011, 1028 (Alaska 2006) ("Defense counsel 

made a 'continuing objection' to [the mother's] testimony 'so as to not interrupt' that 

testimony . . . .").   We note that error preservation issues often arise when parties are not 

required to make specific objections and explain their grounds for objecting each time 

allegedly inadmissible evidence is introduced. Best practices suggest a trial judge should 

grant a continuing objection only when the basis for the objection has been clearly stated 

on the record. 



                                                   -10-	                                             6702
 


----------------------- Page 11-----------------------

medical treatment hearsay exception for statements made during a SART exam; Davison 



and   the   State   rely   on   cases   from   other   jurisdictions   addressing   the   admissibility   of 



statements made under similar circumstances. 



                In State v. Mendez the New Mexico Supreme Court rejected a bright-line 



rule    that  a  child's   statements    to  a  nurse   during    a  sexual   assault   exam    must    be 

categorically excluded where the examination's purpose was primarily forensic.15                     The 



Mendez court reasoned that a categorical exclusion based on the primary purpose of the 



exam would create an artificial distinction between medical and forensic examinations 



that fails to take into account the patient's motivation when making the statement: 



                 [A] declarant could make a statement for entirely medical 

                purposes even if the primary purpose of the interview has 

                become forensic.   The converse is also true.  Even during an 

                initial encounter for medical purposes, the declarant could 

                make a statement entirely unrelated to medical diagnoses or 

                treatment,     thus   failing   to  satisfy  [the   medical    treatment 

                exception].[16] 



The court also observed: 



                We must not lose sight of the fact that [medical treatment 

                exception]      questions     in  the  criminal    context    frequently 

                involve a victim being treated for injuries sustained as a result 

                of   an   alleged   criminal   act,   and   police   as   well   as   medical 

                personnel often become involved in the investigation.               That 

                 should not categorically exclude a victim's statements from 

                evidence.[17] 



                In State v. Butcher the Ohio Court of Appeals established a multi-factor test 



for determining whether a child's statements to a physician were made for the purpose 



        15      242 P.3d 328, 335, 339 (N.M. 2010). 



        16      Id . at 337. 



        17      Id . at 339 (internal citations omitted). 



                                                   -11-                                               6702 


----------------------- Page 12-----------------------

of medical diagnosis and treatment.18            The court explained "statements made by a child 



to a medical professional are not automatically excluded simply because the child did not 



possess the initial motivation to seek diagnosis or treatment, but rather [was] directed 

there   by   an   adult."19  But   because   children,   unlike   adults,   "may   not   appreciate   the 



medical   significance   of   an   interview   with   a   doctor,"   trial   courts   must   consider   the 



circumstances surrounding the exam to determine whether the child's statements were 

made for the purpose of medical diagnosis or treatment.20                 "Such circumstances include 



'the   type   of   environment   the   child   was   placed   in,   the   attire   of   the   interviewer,   the 



presence of other medical professionals, or any other circumstance which would heighten 



the child's awareness that the questions asked were for the purpose of medical diagnosis 

or   treatment.'   "21   The  Butcher   court   concluded   that   if   the   trial   court   does   not   find 



sufficient factors indicating the child's statements were made for the purpose of medical 

diagnosis or treatment, then the statements must be excluded.22 



                 The Butcher  court then held that the record in that case did not contain 



sufficient evidence indicating that the five and six-year-old   victims' statements to a 



doctor at a child advocacy center were made for the purpose of medical diagnosis or 



         18      866 N.E.2d 13, 24-25 (Ohio App. 2007).  The Butcher court examined this 



issue in the context of determining whether the defendant was denied effective assistance 

of   counsel   when   his   trial   counsel   failed   to   object   to  a   doctor's   testimony   regarding 

statements that the victims made during a sexual abuse exam.  Id . at 22. 



         19      Id . at 24 (quoting In re Corry M. , 730 N.E.2d 1047, 1052 (Ohio App. 



1999)). 



         20      Id . 



         21      Id .  at  24-25    (quoting  State      v.  Griffith,  No.    2001-T-0136,      2003     WL 



22994540, at *9 (Ohio App. Dec. 22, 2003) (unpublished)). 



         22      Id . at 25. 



                                                     -12-                                               6702
 


----------------------- Page 13-----------------------

treatment because: (1) the children had already received medical attention from a private 



doctor; (2) a police officer directed their mother to take them to the child advocacy center 



for   a  second     examination;     (3)  a   social  worker     was   present    during   the   second 



examination; and (4) the doctor's primary purpose for the examination appeared to be 

collecting evidence.23     The court noted, however, that its holding "does not challenge the 



admission of a child's statements made to a medical provider if it is demonstrated that 

the statement was made for the purpose of medical treatment or diagnosis . . . ."24 



                Davison relies heavily on Trooper Abercrombie's participation in the SART 



exam, citing several unreported cases that rely on the presence or absence of a law 



enforcement officer during the exam when determining whether the child's statements 



were made for the purpose of medical diagnosis and treatment.  These cases do not focus 



solely on a law enforcement officer's participation; rather, they illustrate the variety of 



factors a trial court might consider when determining whether a child's statements are 



made for the purpose of seeking medical treatment. 



                In State v. Woods the Ohio Court of Appeals held that a child's hearsay 



statements were not admissible under the medical treatment exception when the child 



was interviewed by a social worker who was employed by the county, a detective helped 



coordinate the interview, and the detective "was either present during the interview or 

observed the interview."25       In contrast, in State v. Ferguson the Ohio Court of Appeals 



held   that   a   child's   hearsay   statements   were   admissible   under   the   medical   treatment 



exception when the child was interviewed by a social worker who was employed by a 



        23      Id . at 17, 25-26. 



        24      Id . at 26 (emphasis in original). 



        25      No.    82789,    2004   WL    1172077,     at  *3-4   (Ohio   App.    May    27,  2004) 



(unpublished). 



                                                  -13-                                            6702
 


----------------------- Page 14-----------------------

hospital, the purpose of the interview was to aid medical personnel in testing and treating 



the child, police officers watched the interview over a closed-circuit television from 



another room, and the social worker testified that the police did not control her interview 

with the child and she did not alter her questions because police officers were watching.26 



And   in   West   v.   State  the   Texas   Court   of   Appeals   held   that   a   14-year-old   victim's 



statements to a sexual assault nurse examiner were properly admitted under the medical 



treatment exception when no family members or law enforcement officers were present 



during   the   exam,   her   statements   were   made   while   receiving   medical   treatment   in   a 



hospital, the nurse had little prior information about what had happened, and the victim's 



statements "guided the medical examination and assisted [the nurse] in knowing what 

to look for, where to look, and what tests to conduct."27 



                We decline to adopt a bright-line rule for determining whether a sexual 



assault victim's statements during an exam that has both medical and forensic purposes 



are   admissible   under     the  medical   treatment   exception.      Rather,   we   adopt   the    test 



articulated in Sluka, that the trial court must determine whether "the declarant's motive 



[is]   consistent   with   the  purpose     of  [Evidence    Rule    803(4)]"    and   whether    "it  [is] 

reasonable for the physician to rely on the information in diagnosis and treatment."28 



This   test   properly   focuses   on   the   victim's   motivation   when   making   the   statements, 



regardless of the forensic purpose of the exam. 



        26      No.   07AP-999,   2008   WL   5265893,   at   *8   (Ohio   App.   Dec.   18,   2008) 



(unpublished). 



        27      No.     03-05-00371-CR,         2008    WL     4899189,      at  *1,    4  (Tex.    App. 



Nov. 14, 2008) (unpublished). 



        28      Sluka v. State, 717   P.2d 394, 399 (Alaska App. 1986) (quoting  United 



States. v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)). 



                                                  -14-                                             6702
 


----------------------- Page 15-----------------------

                We also hold that a trial court must consider the circumstances surrounding 



the   exam   to   determine   whether   a   child's   statements   were   made   for   the   purpose   of 



medical diagnosis and treatment.           Relevant factors may include, but are not limited to, 



where the interview was held, who conducted the interview, the child's age, whether the 



child received prior medical treatment, the presence and participation of law enforcement 



officers or non-medical personnel, whether the exam's primary purpose was forensic or 



medical,   whether   that   purpose   was   expressly   conveyed   to   the   child,   and   whether   it 



appears that the child's responses were actually relied upon for diagnosis and treatment. 



No   single   factor   is   dispositive.  The   circumstances   must   be   examined   as   a   whole. 



                Here, the SART exam was conducted by a doctor, in a hospital, and R.D. 



was 14 years old.        Davison   concedes that at 14 years old R.D. was "old enough to 



understand that information she provided could affect the treatment she would receive 



at a medical exam."  But many other factors cause us to question whether her statements 



were made for the purpose of medical diagnosis or treatment:                    (1) R.D. had already 



received some prior medical treatment at the clinic in Elim; (2) Trooper Abercrombie 



arranged the interview, met R.D. and her mother at the airport, and drove them to the 



hospital; (3) the trooper and a women's advocate were present during the exam; (4) the 



trooper took an active role in questioning R.D. and prompted the responses that R.D. 



eventually gave; (5) Dr. Flint-Daniel emphasized the forensic purpose of the exam to 



R.D.; and (6) Dr. Flint-Daniel did not actually view and follow-up on the results of the 



lab tests she had ordered.   These facts all suggest the exam was primarily forensic rather 



than medical. On balance, we cannot conclude that R.D.'s statements to Dr. Flint-Daniel 



regarding   the   assault   were   made   for   the   purpose   of   medical   diagnosis   or   treatment. 



Consequently,   they   lack   the   guaranty   of   trustworthiness   underpinning   the   medical 



treatment exception and were not admissible under Evidence Rule 803(4). 



                                                   -15-                                             6702
 


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                 3.	     The error was harmless as to the conviction. 



                 The error in admitting R.D.'s hearsay statements was harmless for purposes 



of   Davison's   conviction.       Erroneously   admitted   evidence   is   harmless   if   it   "did   not 

appreciably affect the jury's verdict."29         At trial, R.D. testified to sexual assault based on 



penile penetration but did not testify to digital or oral penetration.                  Dr. Flint-Daniel 



testified that R.D. had stated her assailant also penetrated her digitally and orally.  The 



jury convicted Davison of the charges based on penile penetration but acquitted him of 



the charges based on digital and oral penetration. Because it appears the jury did not rely 



on   R.D.'s   hearsay   statements   regarding   digital   and   oral   penetration   in   reaching   its 



verdict,   and   Davison's   conviction   for   penile   penetration   is   adequately   supported   by 



R.D.'s     trial  testimony,     the  error   in  admitting     R.D.'s    hearsay    statements     did   not 



appreciably affect the jury's verdict and was therefore harmless. 



         B.	     A   Remand   Is   Necessary   So   The   Court   Of   Appeals   May   Consider 

                 Whether        The   Hearsay      Statements      From     The    SART      Exam      Were 

                 Sufficiently Verified For Inclusion In The Presentence Report. 



                 Davison also argues that the trial court should have redacted the allegations 



of   digital   and   oral   penetration   from   his   presentence   report.   The   presentence   report 



summarized R.D.'s statements from the SART exam, including her statements alleging 



digital and oral penetration.   Davison objected to the inclusion of these statements in the 



report, arguing the jury had acquitted him of all counts related to those allegations.  The 



trial   court   declined   to   redact   the   statements,   stating   it   would   allow   them   to   remain 



because the report was merely "summarizing" the State's evidence.                      When sentencing 



Davison, the court did not refer to or expressly rely on the allegations of digital and oral 



penetration. 



         29      Jeffries v. State , 169 P.3d 913, 924 (Alaska 2007) (quoting Love v. State , 



457 P.2d 622, 634 (Alaska 1969)). 



                                                    -16-	                                                6702 


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                 The court of appeals held that the trial court did not abuse its discretion by 



declining to strike the hearsay allegations from the presentence report because "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," and because "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."30                     As the court 



of appeals observed, "Davison never made a testimonial denial."31                      We agree with this 



portion of the court of appeals' analysis.32 



                 Absent   a   testimonial   denial,   a   trial   court   may   rely   on   any   allegations 

supported   by   verified   information         in   the   record.33  "Verified   information   includes 



information that is 'corroborated or substantiated by supporting data or information.' "34 



The     court   of   appeals   concluded      that   R.D.'s   hearsay    statements     were    "sufficiently 



         30      Davison   v.   State ,   Mem.   Op.   &   J.   No.   5589,   2010   WL   1729170,   at   *5 



(Alaska App., Apr. 28, 2010) (unpublished). 



         31      Id . 



         32      See Hess v. State, 20 P.3d 1121, 1125 (Alaska 2001) ("We agree that a 



defendant's acquittal of one charge is generally not relevant to prove factual innocence 

of the facts underlying that charge . . . . because it proves only that the [S]tate did not 

prove   every   element   of   the   crime   beyond   a   reasonable   doubt.")   (internal   citations 

omitted); Hinson v. State , 199 P.3d 1166, 1173 (Alaska App. 2008) ("[A]t sentencing, 

the   State   can   rely   on   hearsay    allegations   of   a   defendant's   misconduct,   unless   the 

defendant   takes   the   stand,   denies   the   allegations,   and   submits   to   cross-examination 

regarding the matter."). 



         33      See Hinson, 199 P.3d at 1173 ("Absent [the defendant's] testimonial denial, 



[the   trial   court]   was   authorized     to   rely   on   'verified'   information   supporting   these 

allegations."). 



         34      Id.   at  1173-74      (quoting   Nukapigak        v.  State ,  562   P.2d   697,    701   n.2 



(Alaska 1977), aff'd on reh'g, 576 P.2d 982 (Alaska 1978)). 



                                                     -17-                                                6702
 


----------------------- Page 18-----------------------

verified" because Dr. Flint-Daniel's testimony regarding those statements was properly 

admitted at trial.35 Because we have concluded that this testimony was not admissible 



under the medical treatment exception, we cannot affirm this portion of the court of 



appeals' analysis.   Accordingly, we remand to the court of   appeals for that court to 



consider whether the allegations of digital and oral penetration were sufficiently verified 



for inclusion in Davison's presentence report. 



V.     CONCLUSION 



              We AFFIRM the conviction and REMAND the sentencing issue to the 



court of appeals for consideration. 



       35     Davison , 2010 WL 1729170, at *5. 



                                            -18-                                        6702 

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