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Davison v. State (7/26/2013) ap-2396

Davison v. State (7/26/2013) ap-2396


        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: 

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DENNIS DAVISON,                                 ) 

                                                )         Court of Appeals No. A-10228 

                            Appellant,          )         Trial Court No. 2NO-07-155 CR 


             v.                                 ) 

                                                )                   O P I N I O N 

STATE OF ALASKA,                                ) 


                            Appellee.           ) 

                                                )           No.   2396 - July 26,  2013 

                Appeal     from   the  Superior    Court,   Second    Judicial  District, 

                Nome, Ben Esch, Judge. 

                Appearances:      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: Mannheimer, Chief Judge, Allard, Judge, and Bolger, 

                Supreme Court Justice.* 

                Judge ALLARD. 

    *   Sitting   by   assignment    made    pursuant    to  article  IV,  section  16   of  the  Alaska 

Constitution and Administrative Rule 24(d). 

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

                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 about oral and digital penetration 

because he was acquitted of those charges. 

                The superior court denied the motion to strike.  Because it appears that the 

presentence report procedures under Alaska Criminal Rule 35.1(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. R.D. 

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.                    R.D. 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. 

                                                   2                                             2396

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

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.          R.D. affirmed that she 

told the SART doctor that Davison "put his penis inside [her]," 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 803(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 

                                                    3                                              2396

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

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 Davison'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 remanded 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 

presentence report often becomes the "official version" of the defendant's crime, and 

    1   Davison v. State , Mem. Op. & J. No. 5589, 2010 WL 1729170, at *2-*4 (Alaska App. 

Apr. 28, 2010) aff'd and remanded, 282 P.3d 1262 (Alaska 2012) (hereinafter Davison I). 

    2   Davison v. State , 282 P.3d 1262, 1267-70   (Alaska 2012), reh'g denied  (Aug. 30, 

2012) (hereinafter Davison II). 

    3   Id. 

    4    Cragg v. State, 957 P.2d 1365, 1367-68 (Alaska App. 1998); see also  Thurlkill v. 

State, 551 P.2d 541, 544 (Alaska 1976). 

    5    Thurlkill, 551 P.2d at 544. 

                                                     4                                                 2396

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

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 32.2 govern the preparation and litigation 

of presentence 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 32.1(f)(5) 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 

    6   Alaska R. Crim. P. 32.1(d)(5). 

    7    Cragg, 957 P.2d at 1367; Alaska R. Crim. P. 32.1(f)(5). 

    8   Alaska R. Crim. P. 32.1(f)(5). 

    9   Id.;   see   also  Christian    v.  State,   276   P.3d   479,   483-484     (Alaska    App.   2012) 

(sentencing   judge   has   a   duty   to   delete   contested   unproved   factual   allegations   from   the 

presentence report even if the judge disregarded those allegations when he sentenced the 

defendant); Cleveland v. State, 258 P.3d 878, 886 (Alaska App. 2011) (when the defendant 

raises a genuine dispute about facts in a presentence report, and the judge decides not to 

resolve that dispute because the facts are not relevant to the sentencing decision, the judge 

must delete the factual assertions from the report). 

                                                      5                                                 2396

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Court   noted     in Cragg     v.  State,  a   sentencing     judge's   duty   to  strike  controverted 

allegations from the presentence report extends not only to "'[a]llegations that the judge 

finds are not established' but also to allegations 'that the judge determine[s] will not be 


                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. 

                In our original decision, we emphasized that the acquittals did not establish 

that Davison was factually innocent of these allegations; all they established was that the 

State had failed to prove the allegations beyond a reasonable doubt.11                  We noted that 

Davison had never taken the stand and made a testimonial denial of these allegations - 

a statement which implied that, without such a testimonial denial, the trial court was 

entitled to rely on the truth of these statements for inclusion in the presentence report. 

                But as our recent decision in  Cleveland v. State11  clarifies, a testimonial 

denial is not always   required to trigger the procedural protections of Criminal Rule 

32.1(f)(5).    A defendant can raise a genuine factual dispute through other evidentiary 

means,   including   trial   testimony   casting   doubt   on   the   assertions   of   the   presentence 


                In  Cleveland, the defendant was convicted of several crimes committed 

    10  957 P.2d at 1367-68 (quoting former Criminal Rule 32.2(a)(3), now incorporated into 

Criminal Rule 32.1(f)(5)). 

    11  Davison I , 2010 WL 1729170 at *5. 

    11  258 P.3d 878. 

    12  Id. at 886. 

                                                    6                                               2396

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

against one victim, M.J., but acquitted of the charges against a second victim, V.B.13  The 

presentence report contained a detailed statement V.B. gave to the police alleging that 

Cleveland committed crimes against her.14                  Cleveland objected to this portion of the 

presentence report on the ground that she had been acquitted of these charges. 15                     The trial 

judge stated that he would not rely on these statements in sentencing Cleveland, but 

declined to strike the material from the report.16 

                  On appeal, we found that Cleveland's reliance on the trial testimony that 

led to the jury's acquittals on the V.B. charges was the equivalent of an offer of proof 

based on a testimonial denial. 17         We noted that "[w]hen the defendant makes an offer of 

proof that is adequate to raise a genuine dispute, a sentencing judge must take the action 

required   by   Rule   32.1(f)." 18       We   therefore   remanded   the   case   to   the   trial   court   to 

"determine whether V.B.'s police statement is true, not true, or irrelevant," and to take 

the appropriate action under Rule 32.1(f)(5).19 

                  Here,   as   in  Cleveland, Davison   raised   a   genuine   factual   dispute   about 

whether any oral or digital penetration occurred by pointing to the evidence at trial that 

led to his acquittal on those charges - in particular, R.D.'s failure to assert at trial that 

those acts occurred.          The trial court was therefore obligated to   enter findings   under 

     13  Id. at 885. 

     14  Id.

     15  Id. at 885-86.

     16  Id. at 885.

     17  Id.

     18  Id . at 886.

     19  Id.

                                                        7                                                  2396

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Criminal Rule 35.1(f)(5) as to whether these allegations were true, untrue, or irrelevant. 

Because it is unclear which of these findings the trial court made, if any, we remand 

Davison's case to the superior court for further proceedings consistent with this decision. 


              We REMAND the case to the superior court to clarify its ruling regarding 

the presentence report.  On remand, the superior court should determine whether R.D.'s 

hearsay statements alleging oral and digital penetration are true, untrue, or irrelevant. 

If the disputed allegations are found to be either irrelevant to the sentencing decision or 

untrue, the statements shall be struck from the presentence report and the court shall 

issue a corrected copy of the presentence report under Criminal Rule 32.1(f)(5). 

                                             8                                         2396

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