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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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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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