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.[*]
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. 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 ...