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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals No. A-10228
Trial Court No. 2NO-07-155 CR
No. 2396 â 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.*
Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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.
Davisonâs presentence report contained R.D.âs 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 âinserted his fingers into her vagina and put his tongue on her vagina.â 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 Davisonâs case to
the superior court for further findings.
Factual background and prior proceedings
On March 10, 2007, Dennis Davisonâs wife returned from a short trip. R.D.
told her mother that her father had sexually assaulted her while she was away. R.D.âs
mother contacted the village physicianâs assistant, who in turn contacted the Alaska State
Troopers. R.D.âs mother told the troopers what R.D. had told her. R.D.âs 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 Womenâs 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.âs mother.
The doctor then asked R.D. if the trooperâs version was âpretty much on target?â and
R.D. responded, âYeah.â 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 âput his penis inside [her],â 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 Davisonâs 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 âinserted his fingers into her vagina and put his tongue on her vagina.â 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
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.âs 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 âsummarizingâ the information from the trooper reports and grand
Following his sentencing, Davison appealed his conviction, arguing that the
trial court erred in admitting R.D.âs hearsay statements to the doctor and in refusing to
strike the statements from the presentence report. This Court affirmed the superior
The Alaska Supreme Court granted Davisonâs petition for hearing and held
that it was error (albeit harmless error) to admit R.D.âs hearsay statements under
Evidence Rule 803(4) because R.D.âs SART examination was conducted primarily to
gather evidence against Davison, and not for purposes of medical treatment.2 The
supreme court then remanded Davisonâs case to this Court for reconsideration of whether
R.D.âs 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, âcare
must be taken to ensure that [presentence] reports are as accurate as possible.â4
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 âofficial versionâ of the defendantâs crime, and
Davison v. State, Mem. Op. & J. No. 5589, 2010 WL 1729170, at *2-*4 (Alaska App.
Apr. 28, 2010) affâd and remanded, 282 P.3d 1262 (Alaska 2012) (hereinafter Davison I).
Davison v. State, 282 P.3d 1262, 1267-70 (Alaska 2012), rehâg denied (Aug. 30,
2012) (hereinafter Davison II).
Cragg v. State, 957 P.2d 1365, 1367-68 (Alaska App. 1998); see also Thurlkill v.
State, 551 P.2d 541, 544 (Alaska 1976).
Thurlkill, 551 P.2d at 544.
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 âany information upon which the defendant intends to rely to
refute the objected-to information.â6
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 âconcludes 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,â then the court must delete the assertion
from the report.7 âAny assertion that has been proved only in part shall be modified in
If the sentencing judge âdetermines 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.â9 As this
Alaska R. Crim. P. 32.1(d)(5).
Cragg, 957 P.2d at 1367; Alaska R. Crim. P. 32.1(f)(5).
Alaska R. Crim. P. 32.1(f)(5).
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).
Court noted in Cragg v. State, a
sentencing judgeâs duty to strike controverted
allegations from the presentence report extends not only to ââ[a]llegations that the judge
finds are not establishedâ but also to allegations âthat the judge determine[s] will not be
Here, the presentence report contained R.D.âs 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 â
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
957 P.2d at 1367-68 (quoting former Criminal Rule 32.2(a)(3), now incorporated into
Criminal Rule 32.1(f)(5)).
Davison I, 2010 WL 1729170 at *5.
258 P.3d 878.
Id. at 886.
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 Clevelandâs reliance on the trial testimony that
led to the juryâs acquittals on the V.B. charges was the equivalent of an offer of proof
based on a testimonial denial.17 We noted that â[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).â 18 We therefore remanded the case to the trial court to
âdetermine whether V.B.âs police statement is true, not true, or irrelevant,â 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 â in particular, R.D.âs failure to assert at trial that
those acts occurred. The trial court was therefore obligated to enter findings under
Id. at 885.
Id. at 885-86.
Id. at 885.
Id. at 886.
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
Davisonâs 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.âs
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).