You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Borchgrevink v. State (9/17/2010) ap-2276

                             NOTICE
     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:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ESTIN W. BORCHGREVINK,             
                                   
                    Appellant,       Court of Appeals No. A-10234
                                    Trial Court No. 3KN-06-879 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.       No. 2276    September 17, 2010
End of Caption                     
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Peter G. Ashman, Judge.

          Appearances:   Beth G. L. Trimmer,  Assistant
          Public   Advocate,  Anchorage,   and   Rachel
          Levitt,  Public Advocate, Anchorage, for  the
          Appellant.   Terisia K. Chleborad,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Daniel S. Sullivan, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Estin W. Borchgrevink appeals his convictions for first-
degree  assault (infliction  of
serious physical injury) and for a merged count of first-
degree  sexual assault and first-degree sexual abuse of  a  minor
(non-consensual sexual penetration of a child under  the  age  of
13).1  The issue on appeal is whether the  State  should
have  been  allowed to introduce evidence at Borchgrevinks  trial
concerning  an  out-of-court statement  made  by  the  2-year-old
victim when she was examined at the hospital by an emergency room
physician and nurse.  
          At  the time of this examination, the victim, E.P., had
obvious  injuries  to  her head and to her  vaginal  opening  and
perineum.   The doctor pointed to E.P.s head and asked  who  hurt
her.   E.P. replied, Daddy [i.e., Borchgrevink] did this or Daddy
did  this  to me.  The doctor then pointed to E.P.s genitals,  or
the  area of her diaper, and again asked who hurt her.  E.P. once
more replied, Daddy did this.  
          At  Borchgrevinks trial, the emergency room  physician,
the  emergency room nurse, and E.P.s mother (who was also present
during  the  examination) were allowed to  give  hearsay
testimony describing E.P.s statements.  
          However,  as  we explain in more detail later  in  this
opinion, the trial judge granted a defense motion to declare E.P.
incompetent  to  be a witness, and thus E.P. did not  testify  at
Borchgrevinks trial.   
          At trial, Borchgrevink conceded that he was the one who
caused  the  injuries to E.P.s head.  Because of this concession,
the admissibility of E.P.s statement identifying Borchgrevink  as
          the one who inflicted her head injuries is a moot issue.
However,  Borchgrevink denied that he was the one  who  inflicted
the  injuries  to  E.P.s genitals and perineum, and  he  actively
objected to the admission of E.P.s statement identifying  him  as
the one who inflicted these injuries.  
          For  the reasons explained in this opinion, we conclude
that the admission of the testimony describing E.P.s out-of-court
statements  was  not  reversible error, and we  therefore  affirm
Borchgrevinks convictions.   
The   litigation   of  this  issue  in   the   superior
court

          Two    days     before
Borchgrevinks  trial began, the trial  judge  (Superior
Court Judge pro tempore Peter G. Ashman) held a hearing
to address the admissibility of this evidence.
          The prosecutor argued that this testimony was
admissible  under two different theories:  first,  that
it was a first complaint of sexual assault for purposes
of  the  first  complaint doctrine  recognized  by  the
Alaska  Supreme  Court in Greenway v. State,  626  P.2d
1060  (Alaska 1980); and second, that it was admissible
under   Alaska  Evidence  Rule  803(4)  because   E.P.s
statements were made for purposes of medical  diagnosis
or treatment.
          With  respect to the States theory that E.P.s
statements  constituted  a first  complaint  of  sexual
assault  under Greenway, Borchgrevinks attorney  argued
that  first  complaint evidence should  be  limited  to
evidence  that the victim reported that they  had  been
subjected to a sexual assault (or to sexual abuse)  and
that  the first complaint rule does not allow the State
to  introduce evidence of the victims identification of
the perpetrator.
          Similarly, with respect to the States  theory
that E.P.s statements were admissible under the medical
diagnosis  or treatment exception codified in  Evidence
Rule  803(4),  Borchgrevinks attorney argued  that  the
medical diagnosis or treatment exception does not allow
the   State   to   introduce  out-of-court   statements
concerning the identity of the person who inflicted the
patients injuries.
          In   the   alternative   (i.e.,   under   the
assumption  that  Evidence  Rule  803(4)  might  permit
evidence  of  a sexual abuse victims identification  of
their assailant), the defense attorney argued that E.P.
was  so young when she spoke to the doctor (she was two
and   a  half  years  old)  that  she  would  not  have
understood  that  the  doctors inquiry  concerning  the
identity  of  her  assailant had anything  to  do  with
medical diagnosis or treatment.
          After  hearing  the parties arguments,  Judge
Ashman  took the matter under advisement.   Later  that
afternoon,  he  called the parties back  to  court  and
announced his decision.
          With  regard  to  whether E.P.s  out-of-court
statements  were  admissible under the  Greenway  first
complaint rule, Judge Ashman noted that this Court  had
issued   seemingly  contradictory  statements  on   the
question  of  whether  evidence  of  a  victims   first
complaint   can  include  an  identification   of   the
perpetrator  of  the sexual assault  or  sexual  abuse.
After  declaring  that he could  not  find  a  unifying
rationale  to  fully  explain or  reconcile  our  prior
statements on this issue, Judge Ashman ruled that E.P.s
out-of-court  identification  of  Borchgrevink  as  her
assailant  was  admissible under  the  first  complaint
rule.
          With  regard  to  whether E.P.s  out-of-court
statements were admissible under the medical  diagnosis
or treatment hearsay exception, Judge Ashman found that
when  the emergency room physician questioned E.P.,  it
was obvious that she had suffered genital injuries, but
it was not clear whether those injuries were the result
of  a  sexual assault, and (if so) whether that assault
was  performed with an adult males penis or  with  some
other  object.  Judge Ashman concluded that the doctors
inquiry was pertinent to medical diagnosis or treatment
because,   if  E.P.s  injuries  resulted  from   sexual
penetration  by an adult males penis, this  information
was  relevant  to the doctors decisions concerning  the
course of treatment.
          (Judge  Ashmans  assessment  of  the  medical
relevance  of  this information for treatment  purposes
was  corroborated by the testimony of another physician
at  Borchgrevinks trial  i.e., not the  emergency  room
doctor,  but another doctor who later supervised  E.P.s
treatment.   This  second  physician  testified   that,
because  E.P.s  injuries were  reported  to  have  been
caused by sexual penetration by an adult male, E.P. was
treated  with antibiotics in case she had been infected
with  a  sexually  transmitted disease,  and  E.P.  was
screened   for   HIV,  syphilis,  and  other   sexually
transmitted diseases.)

Whether  evidence that E.P. identified Borchgrevink  as
her  assailant was admissible under the Greenway  first
complaint evidence rule

          As  we  explained  earlier, Borchgrevink  was
charged  with both physical assault on E.P.  (resulting
in the injuries to her head) and sexual assault on E.P.
(resulting   in  the  injuries  to  her  genitals   and
perineum).
          In  his  testimony at his trial, Borchgrevink
conceded that he was the one who inflicted the injuries
to  E.P.s  head, and that these injuries were inflicted
on  March  16,  2006, while E.P.s mother was  at  work.
(E.P. was taken to the doctor late in the afternoon  of
March 16th.)
          However, Borchgrevink denied that he was  the
one  who  inflicted the injuries to E.P.s genitals  and
perineum.   Borchgrevink asserted that  these  injuries
were  inflicted one or possibly two days earlier  i.e.,
late   on   March  14th,  or  on  March   15th    while
Borchgrevink was at work and E.P. was in  the  care  of
others   (namely,  her  mother  and  her  grandparents,
Kristine and Richard Squire).
          As  we  have  explained, before Borchgrevinks
trial   began,  the  State  asked  for  permission   to
introduce testimony regarding the statements that  E.P.
made   at   the  hospital,  in  which  she   identified
Borchgrevink as the person who inflicted her  injuries.
The State argued that this testimony was admissible  as
a  first complaint under Greenway, and the trial  judge
agreed.
          On   appeal,  Borchgrevink  argues  that  the
admission  of  this testimony was error.   Borchgrevink
notes that, traditionally, testimony admitted under the
first  complaint rule was limited to the fact that  the
victim had reported being sexually assaulted or abused;
the testimony was not to include the victims statements
about   the  details  of  the  assault  or  abuse    in
particular,   the   victims   identification   of   the
perpetrator.   See Greenway, 626 P.2d  at  1061  n.  4,
citing John Henry Wigmore, Evidence in Trials at Common
Law (Chadbourn rev. 1972),  1136, Vol. 4, p. 306.
          Borchgrevink  acknowledges  that  this  Court
has,  at times, upheld the admission of first complaint
testimony  concerning  the  victims  identification  of
their  assailant  or abuser.  See,  e.g.,  Strumsky  v.
State,   69  P.3d  499,  502-03  (Alaska  App.   2003);
Nusunginya v. State, 730 P.2d 172, 173-74 (Alaska  App.
1986); Nitz v. State, 720 P.2d 55, 58, 63 (Alaska  App.
1986).   (We also note that, at least once, we declared
this  aspect  of  a  victims  first  complaint  to   be
inadmissible.   D.G.  v. State,  754  P.2d  1128,  1129
(Alaska App. 1988).)
          But  Borchgrevink  argues that  even  if  the
victims   identification   of   the   perpetrator    is
potentially   admissible  under  the  first   complaint
evidence  rule, such identity testimony  is  admissible
only  if  the  identity  of  the  perpetrator  is   not
disputed,  and then only if the victim takes the  stand
at trial.

  (a)   The   debate  as  to  whether  first  complaint
  evidence  may  include the victims identification  of
  the perpetrator

          Borchgrevinks  first  objection   that  first
complaint  evidence  should  not  include  the  victims
identification of the perpetrator  has been the subject
of  a  long  judicial debate.  This was the  aspect  of
Borchgrevinks argument that gave Judge Ashman the  most
trouble,  and  understandably  so   because,  as  Judge
Ashman  pointed out, Alaska appellate decisions provide
uncertain guidance on this point of law.
          In  footnote 4 of the Greenway decision  (626
P.2d  at  1061),  our supreme court stated  that  first
complaint  evidence is traditionally  confined  to  the
fact  of  the  complaint,  and  that  [t]estimony   ...
pertaining  to  details  of the  victims  complaint  is
generally not admissible.  However, the authority  that
the  supreme court cited for this proposition, Wigmores
Evidence in Trials at Common Law (Chadbourn rev. 1972),
 1136, actually states a somewhat different rule.
          Wigmore  does  indeed  say  that  the   first
complaint  rule  authorizes admission of  the  fact  of
[the]  complaint ... only (emphasis in  the  original),
but  then Wigmore explains that, for this purpose,  the
fact  of  the complaint includes the victims statements
concerning the time and place of the assault,  so  that
the  trier  of fact can identify [that] time and  place
with  that of the [offense] charged.  Id., Vol.  4,  p.
307.
          It  is  true that the traditional formulation
of   the   first  complaint  rule  precluded  testimony
concerning  a victims identification of the perpetrator
of  the  assault, and several courts still follow  this
rule.  See People v. Ware, 751 N.E.2d 81, 86 (Ill. App.
2001);  State  v. Grady, 183 N.W.2d 707,  715-16  (Iowa
1971);  State  v.  Krieger, 803 A.2d  1026,  1031  (Me.
2002);  Sanchez  v. State, 569 S.E.2d  363,  365  (S.C.
2002);  State  v. Fleming, 621 P.2d 779, 782-83  (Wash.
App.  1980).  See also People v. Brown, 883  P.2d  949,
958-960   (Cal.   1994)  (disavowing   the   common-law
rationale  for  admitting  this  evidence,  but   still
limiting  the evidence to (1) the fact of  the  victims
complaint  and  (2) the circumstances  surrounding  the
victims making of the complaint).
          Nevertheless,  as  the  facts   of   Greenway
demonstrate,  there sometimes may be little  meaningful
difference  between testimony that relates the  victims
description of the time and place of the assault (which
is  admissible under the traditional rule as stated  by
Wigmore)   and  testimony  that  relates  the   victims
identification of the perpetrator.
          The  defendant  in Greenway  was  accused  of
raping  his teenage stepdaughter while the two of  them
were  staying at Greenways summer fish camp.  626  P.2d
at   1060.    Under   these  circumstances,   testimony
concerning  the stepdaughters description of  the  time
and place of the sexual assault would be tantamount  to
an  assertion that Greenway was the one who perpetrated
the crime.
          Similarly,  when a case involves  the  sexual
abuse  of a young child, the childs description of  the
time   and  place  of  the  sexual  abuse  will   often
effectively  amount to an assertion that  a  particular
caretaker was the abuser.  As this Court noted in  Nitz
v.  State, 720 P.2d 55 (Alaska App. 1986), there  often
may  be [little] utility [in] attempting to conceal the
identity  of  the person accused in the  victims  first
complaint  where the victim is a child  who  accuses  a
parent  or step-parent of sexual assault  because  even
the  least astute of jurors will readily be capable  of
surmising  that the victims complaint was  directed  at
the  parent who has been charged with the offense.  Id.
at 63.
          Thus, even under the first complaint doctrine
as  traditionally applied, the trier of fact will know,
or  will be able to easily guess, the identity  of  the
person  whom the victim named as the perpetrator,  even
when  this  information is not explicitly presented  in
court.   Perhaps  because of this,  there  has  been  a
modern  trend  to broaden the scope of first  complaint
evidence  to  include the victims  identification.   As
this Court noted in Nitz:
     
     [T]here  has  been  a  marked  trend   toward
     relaxation  of  the traditional  restrictions
     governing  admission  of  evidence   of   the
     victims   first   complaint.   More    recent
     decisions      have      recognized       the
     appropriateness, within the reasonable limits
     of  the  trial courts discretion, of allowing
     details  of  a  first  complaint  of   sexual
     assault  to  be admitted for the  purpose  of
     enabling   the   jury  to   obtain   a   fair
     understanding  of  the  circumstances   under
     which   the   complaint   was   made.    Even
     jurisdictions   that   continue   to   forbid
     revealing   the  identity  of  the  assailant
     recognize  that  [the]  admission   of   such
     evidence  amounts  to  harmless  error  where
     identity is not contested.
     
     Nitz, 720 P.2d at 63 (citations omitted).
          As    stated   in   the   preceding
paragraph  from  Nitz, several  jurisdictions
have expanded the first complaint doctrine to
include  the  victims identification  of  the
perpetrator.  See State v. Troupe,  677  A.2d
917,  928-29 (Conn. 1996); Nelson  v.  State,
768  A.2d  738,  744 n. 2  (Md.  App.  2001);
Commonwealth v. Licata, 591 N.E.2d  672,  674
(Mass. 1992), as modified in Commonwealth  v.
King,  834 N.E.2d 1175, 1197-98 (Mass. 2005);
State v. Blohm, 281 N.W.2d 651, 652-53 (Minn.
1979);  Commonwealth v. Krick, 67  A.2d  746,
749-750  (Pa. App. 1949); State  v.  Twyford,
186 N.W.2d 545, 548-550 (S.D. 1971); State v.
Sanders,  691  S.W.2d 566, 568  (Tenn.  Crim.
App.  1984).   See also State  v.  Cook,  187
S.E.2d  104, 109 (N.C. 1972) (the victim  did
not know her assailant, but the court allowed
first   complaint  evidence  of  the  victims
description of her assailant).
          This   Court  has  issued   several
decisions  in which we upheld first complaint
evidence  that included the victims assertion
of  the  perpetrators identity.  Our decision
in  Nitz is one example:  the first complaint
evidence   in   Nitz  included  the   victims
identification of the perpetrator, Nitz,  720
P.2d  at  58,  and this Court held  that  the
evidence was admissible.  Id. at 63.
          But  the Nitz decision presented  a
problem  for future cases because this  Court
seemingly  offered differing  rationales  for
our decision.
          First, the Nitz decision offers the
view  that  descriptions of a  victims  first
complaint  might as well include the  victims
identification of the perpetrator,  since  it
is   so   often  pointless  to  enforce   the
contrary, traditional rule.  As we  noted  in
Nitz,   there   is  [little]   utility   [in]
attempting  to  conceal the identity  of  the
person  accused because even the least astute
of   jurors   will  readily  be  capable   of
surmising  that  the  victims  complaint  was
directed  at the parent who has been  charged
with the offense.  Id. at 63.
          Second,  the  Nitz decision  states
that  there  appears to be  little  need  for
artificial limits on a witness account of the
circumstances under which the victims initial
report  of  sexual assault [was]  made.   The
jury   should   generally  be  permitted   to
consider these circumstances in assessing the
weight  to  be given to the prior  statement.
Id. at 62-63.
          But  the Nitz decision also  states
that  evidence  of the victims identification
of  the  perpetrator poses no danger  because
[i]dentity  will seldom be an issue  in  such
cases.    Id.   at  63.   As   Judge   Ashman
apparently   perceived  when  he   tried   to
ascertain  what  rule the Nitz  decision  was
actually  endorsing, this aspect of  Nitz  is
really  a harmless error analysis  as opposed
to  the  view that the victims identification
of  the perpetrator is a proper component  of
first complaint evidence.
          In  Nitz,  all of these  rationales
apparently  led to the same  result   so  the
tension  between them was muted.   But  Judge
Ashman  was confronted with a case where  the
identity of the perpetrator was disputed,  so
he was forced to choose between the differing
rationales.  He adopted the view  that  first
complaint  evidence can properly include  the
victims identification of the perpetrator.
          This is, indeed, the rule suggested
by  this Courts subsequent decisions on  this
issue.  In Nusunginya v. State, 730 P.2d  172
(Alaska   App.  1986),  two  witnesses   (the
victims  ten-year-old cousin and the  victims
aunt)  testified about a childs complaint  of
sexual abuse by her father.  Id. at 173.   We
upheld the admission of the victims statement
to her cousin under the first complaint rule,
noting that the challenged testimony did  not
provide  any significant detail,  apart  from
establishing that [the victim] had identified
Nusunginya as her assailant.  Ibid. (emphasis
added).    We   added  that  the   challenged
testimony helped provide a context  in  which
the  [victims] complaint could be viewed  and
[t]hus,    applying   the   first   complaint
exception, ... the trial court did not err in
allowing  [the  cousin] to testify.   Id.  at
174.
          Similarly, in Kosbruk v. State, 820
P.2d  1082 (Alaska App. 1991), another sexual
abuse   of  a  minor  case,  we  upheld   the
admission  of  first complaint evidence  that
included  the victims identification  of  the
perpetrator.  We declared that the challenged
testimony  was brief and did not provide  any
significant detail.  Id. at 1084.
          See  also  Thompson v.  State,  769
P.2d 997 (Alaska App. 1989), where this Court
held  that  evidence  of  the  victims  first
complaint  was  admissible  even  though  the
challenged  testimony  included  the  victims
identification  of the perpetrator.   Id.  at
998,  1001,  1002-03.   Accord:   Murray   v.
State, 770 P.2d 1131, 1133, 1137 (Alaska App.
1989);  Horton v. State, 758 P.2d 628, 630-31
(Alaska App. 1988).
          It is true that, in both Nusunginya
and  Kosbruk, this Court suggested  that  our
ruling hinged, at least in part, on the  fact
that the identity of the perpetrator was  not
at  issue.   Judge  Ashman declared  that  he
could  not understand the relevance  of  this
fact,  and  we agree that he had a reasonable
basis for his perplexity.
          There   may  be  cases  of   sexual
assault or sexual abuse where the identity of
the  perpetrator truly is not at  issue   for
example,  where the defendant  openly  admits
the   act   of  sexual  contact   or   sexual
penetration,  but  asserts  that  the  sexual
activity  was consensual (in the case  of  an
adult)   or   that  the  sexual  contact   or
penetration was performed for the purpose  of
administering a recognized and lawful form of
treatment  that  is  reasonably  adapted   to
promoting  the physical health of the  person
being treated.  AS 11.81.900(b)(59)(B).
          But   in   Nitz,  Nusunginya,   and
Kosbruk, the defendants did not concede  that
they  were  the  ones who engaged  in  sexual
activity  with  the  children.   Rather,  the
defendants  denied  that they  had  done  the
things   the   children  accused   them   of.
Identity may not have been actively litigated
at  the defendants trials; nevertheless,  the
identity of the perpetrator was disputed  (as
a legal matter).  If, for instance, there had
been  some  physical evidence  that  arguably
corroborated  the  victims claims  of  sexual
activity, the defendants in Nitz, Nusunginya,
and Kosbruk might well have argued  perfectly
consistently   that  (a) no  sexual  activity
occurred,  but if it did, (b) they  were  not
the  one  who engaged in the sexual  activity
with the victim, and the victim was lying  or
was   mistaken  about  the  identity  of  the
perpetrator.
          This  may have been the reason  why
Judge  Ashman  ultimately  concluded  that  a
victims identification of the perpetrator can
be  a  proper  component of  first  complaint
evidence,  and that the issue of whether  the
identity  of  the  perpetrator  was  actively
disputed  at  trial was not the determinative
factor in this Courts prior decisions on this
subject.

(b)  The  limited admissibility of first complaint
evidence   and  why we conclude that  the  limited
purpose of this evidence provides an answer to the
question  of whether first complaint evidence  can
include   the   victims  identification   of   the
perpetrator

     At  this  point in our analysis,  it  may  be
helpful  to  stand back for a moment and  consider
whether  this  entire debate   i.e.,  the  ongoing
controversy about whether first complaint evidence
should   include  information  about  the  victims
identification of the perpetrator  might be viewed
as  academic, in the pejorative sense of having no
practical or useful significance to the litigation
of  criminal cases in the real world.  The  reason
why  the  resolution of this debate  may  have  no
practical  significance is  that  first  complaint
evidence  is  not admitted for the  truth  of  the
matters   asserted.   Rather,  this  evidence   is
admitted  for  the  limited  purpose  of   lending
corroboration  to the victims in-court  testimony,
by  establishing  that  the  victim  did  in  fact
complain of the sexual assault or sexual abuse  at
an earlier time.
          This  rationale, and the limited purpose  for
which   first  complaint  evidence  is  admitted,   are
discussed  in  1135-36 of Wigmore (the same portion  of
Wigmore  that  was  cited  by  our  supreme  court   in
Greenway).   Wigmore explains that the laws traditional
proscription  of  the  details of the  victims  earlier
complaint was intended to deter the jury from  treating
the   victims  out-of-court  statement  as  a   hearsay
assertion.   In other words, it was intended  to  deter
the  jury  from viewing the out-of-court  statement  as
substantive  proof  of  the matters  asserted  in  that
statement   as  independent evidence of the  defendants
guilt.  Wigmore,  1136, Vol. 4, p. 307.
          First  complaint evidence is intended  solely
to  corroborate the victims testimony.  As  this  Court
recognized  in Nitz, the [first complaint] doctrine  is
founded  on the assumption that evidence of the victims
first   complaint  is  necessary  to   counteract   the
inference ... that might otherwise be drawn   in  other
words,  the  inference that the victim said nothing  at
the  time, and (thus) that nothing happened.  Nitz, 720
P.2d  at  62 (citing Wigmore).  For this reason,  first
complaint evidence is not technically hearsay:   it  is
not  admitted for the truth of the matters asserted  by
the victim in the out-of-court statement.2
          Thus,   there   may   be   little   practical
significance  whether  first  complaint  evidence   can
properly   include   information  about   the   victims
identification  of the perpetrator  because  (1)  first
complaint  evidence is admissible only  if  the  victim
testifies at the trial, see Wigmore,  1136, Vol. 4, pp.
307-311;  and (2) it is error for the jury to  rely  on
the victims out-of-court statement as substantive proof
of the matters asserted.
          See  State v. Samuels, 871 A.2d 1005, 1011-12
(Conn.  2005);  Fitzgerald v. United States,  443  A.2d
1295, 1303-04 (D.C. App. 1982); Commonwealth v. Licata,
          591 N.E.2d 672, 674-75 (Mass. 1992), as modified in
Commonwealth  v. King, 834 N.E.2d 1175, 1197-98  (Mass.
2005);  People v. Straight, 424 N.W.2d 257, 261  (Mich.
1988).
          (This  limitation  does not  apply  when  the
victims  statement  is  offered  as  hearsay  under  an
exception  to the hearsay rule, such as the  exceptions
for  excited  utterances, Alaska Evidence Rule  803(2),
prior  inconsistent  statements, Alaska  Evidence  Rule
801(d)(1)(A),  or  prior consistent statements,  Alaska
Evidence   Rule  801(d)(1)(B).   If  the   out-of-court
statement  is  admissible under  an  exception  to  the
hearsay  rule,  then the jury can rely on  it  for  the
truth  of  the matters asserted.  See People v.  Brown,
883  P.2d 949, 950 n. 1; 35 Cal.Rptr.2d 407, 408  n.  1
(Cal. 1994).)
          For  these reasons, it may ultimately be more
profitable to view the controversy about whether  first
complaint   evidence   should   include   the   victims
identification  of the perpetrator as,  in  essence,  a
debate about how Evidence Rule 403 should be applied to
this situation.
          Evidence Rule 403 authorizes a trial judge to
exclude  relevant  evidence if the probative  value  of
that evidence is outweighed by the likelihood that  the
jury  will  use  the evidence for an improper  purpose.
Here,   the   proper  purpose  of   the   evidence   is
corroboration  of the victims in-court  testimony;  the
danger  is  that  the jury will view  the  evidence  as
independent, substantive proof of the matters  asserted
in the victims out-of-court statement.
          The laws traditional ban on the inclusion  of
details in first complaint evidence appears to be based
on  the perception that, the more detailed the witnesss
description of the victims out-of-court statement,  the
greater  the  likelihood that the jury will  treat  the
witnesss   first  complaint  testimony  as  substantive
evidence,  separate  from  (and  independent  of)   the
victims in-court testimony.
          A closely analogous problem is presented when
expert  witnesses testify under the authority of Alaska
Evidence  Rule 703 about conclusions they have  reached
based  on underlying information or data that they  did
not  collect  or  observe themselves.  Alaska  Evidence
Rule   703   allows  experts  to  testify  about   this
underlying   information  or  data  even  though   this
testimony, if offered independently, could not  survive
a  hearsay  challenge  or  a  challenge  based  on  the
witnesss  lack  of  personal knowledge.3   Technically,
this  testimony is not hearsay  in other words,  it  is
not  offered for the truth of the matter asserted,  but
rather  for the limited purpose of explaining  how  the
expert reached their conclusions.4
          But  as this Court recently noted in Vann  v.
State,  229 P.3d 197, 208-09 (Alaska App. 2010),  there
          are times when (1) there is no other admissible
evidence of the underlying information or data, and (2)
as  a  practical matter, there is a substantial  danger
that  the jury will assume the truth of some or all  of
this  underlying information or data.  For this reason,
Evidence  Rule  705(c)  authorizes  a  trial  judge  to
prohibit the expert witness from testifying about these
underlying  matters  if the danger  that  [the  experts
testimony concerning these matters] will be used for an
improper  purpose outweighs their value as support  for
the experts opinion.
          The Commentary to Alaska Evidence Rule 705(c)
explains  that  the improper purpose that  Rule  705(c)
refers  to  is the possibility that the jury might  ...
use  the  facts or data as the basis for an independent
judgment on issues in [the] case.  In other words,  the
danger is that the jury will take the experts testimony
as  independent  proof  of  these  underlying  matters.
Vann, 229 P.3d at 209; Guerre-Chaley v. State, 88  P.3d
539, 543-44 (Alaska App. 2004).
          This is essentially the same danger presented
by  first complaint evidence if it is so detailed  that
it  practically amounts to out-of-court testimony  that
is,  if it is so detailed that it might prompt the jury
to  resolve  questions of fact based on the content  of
the  victims out-of-court statement rather than on  the
live  testimony  and  physical  evidence  presented  in
court, or if it might prompt the jury to resolve issues
of  credibility by treating the out-of-court  statement
as the equivalent of a separate corroborating witness.
          With  particular  regard to the  question  of
whether   first   complaint  evidence  should   include
information  about  the victims identification  of  the
perpetrator, we stand by what we said in  Nitz:   as  a
general  rule,  there appears to  be  little  need  for
artificial  limits  on a witnesss  description  of  the
general  content  of  the victims statement.   It  will
often  be  obvious who the victim named  or  described.
And,  particularly in cases where a young child reports
being  assaulted  or  abused by a family  member  or  a
caretaker  who  is  well known  to  the  child,  it  is
potentially   misleading   to   delete    the    childs
identification  of the perpetrator   because  the  jury
might  assume that the child would naturally  name  the
perpetrator if the child knew the perpetrator, and thus
the jury might mistakenly conclude that the child named
someone  other  than the defendant, or  was  unable  to
identify their assailant.
          On  the other hand, a trial judge should have
the    discretion   to   redact   this   identification
information from the first complaint witnesss testimony
if  there  is a substantial danger that the  jury  will
view  this  information  as independent  proof  of  the
defendants guilt.  As we discussed in Nitz, this danger
can  be significant if a parade of witnesses is allowed
to   offer   evidence  of  [the  victims]   prior   ...
statements, 720 P.2d at 70, or if the identification of
the  defendant as the perpetrator of the crime is based
on  the  testimony  of ... [a] relatively  inarticulate
child,  bolstered  by  the testimony  of  a  series  of
articulate adult witnesses, id. at 71.
          With this analysis in mind, we return to this
Courts decisions in Nitz, Nusunginya, and Kosbruk.   As
we  have explained, all three of these decisions upheld
the admission of first complaint evidence that included
the  victims identification of the perpetrator, but all
three  decisions discuss the fact that the identity  of
the  defendant  as  the perpetrator  was  not  actively
disputed  at  trial  (and that the issue  litigated  at
trial was, instead, whether any crime occurred).
          For  the  reasons we have explained  in  this
section  of  our  opinion, we  do  not  construe  Nitz,
Nusunginya, and Kosbruk as standing for the rule that a
lack  of  dispute about the identity of the perpetrator
is  an unvarying foundational requirement that must  be
satisfied before first complaint evidence can  properly
include information about the victims identification of
the perpetrator.  Rather, we view Nitz, Nusunginya, and
Kosbruk  as  saying  that  if  the  identity   of   the
perpetrator  is not actively disputed,  then  there  is
considerably less danger that the jury will  treat  the
victims  out-of-court identification of the perpetrator
as  substantive evidence  and, conversely, that if  the
identity of the perpetrator is actively disputed,  this
is  a significant factor that a trial judge should take
into  account  when deciding, under  the  authority  of
Evidence  Rule  403, whether there is  good  reason  to
redact   the   information   concerning   the   victims
identification  of the perpetrator from  any  testimony
describing the victims first complaint.

  (c)  The  significance of the fact that E.P. did  not
  testify at Borchgrevinks trial

          By  this  point in our discussion,  attentive
readers  already will have perceived that the admission
of  the first complaint evidence at Borchgrevinks trial
presents a serious legal problem  because E.P. did  not
testify.
          As  we explained in the preceding section  of
this  opinion,  first complaint evidence is  admissible
only  if  the victim testifies at the trial.  Moreover,
it is error for the jury to rely on the victims out-of-
court  statement   here,  E.P.s out-of-court  assertion
that Daddy did this  as substantive proof of the matter
asserted.
          In   Borchgrevinks  case,  this  problem   is
compounded  by  the  manner in  which  this  issue  was
litigated in the superior court.
          As  we  explained  earlier, the  question  of
whether  the emergency room doctor and nurse  would  be
allowed  to testify about E.P.s out-of-court  statement
(in  particular, her identification of Borchgrevink  as
her   assailant)   was  litigated   two   days   before
Borchgrevinks trial began.  When Judge Ashman was asked
to  make a ruling on this issue, it appeared that  E.P.
was  going to testify at Borchgrevinks trial.   No  one
discussed the possibility that E.P. might not  testify.
More  specifically, the defense attorney  never  argued
that   E.P.  was  incompetent  to  testify,  and   that
therefore  it  would  be improper to  admit  any  first
complaint evidence.
          The  issue  of  E.P.s  unavailability  as   a
witness did not arise until several days later, in  the
middle  of  Borchgrevinks trial, when the State  called
E.P.  to  the  stand (outside the jurys  presence)  and
attempted to establish her competency as a witness.
          At  the time of Borchgrevinks trial, E.P. was
four  years  old.  It soon became clear  that  she  was
apparently  competent to be a witness  under  the  test
established in Evidence Rule 601  i.e., she was capable
of  communicating concerning the matter  so  as  to  be
understood  by  the  court  and  jury.   E.P.  answered
preliminary  questions in a coherent and understandable
manner  (although, unsurprisingly,  the  tenor  of  her
answers was characteristic of a young child).
          However,  E.P. either would not or could  not
give   meaningful   answers  to  any  questions   about
Borchgrevink  when  she  was  sitting   in   court   in
Borchgrevinks  presence.  Judge Ashman described  E.P.s
reaction:
     
     The   Court:   Ill  put  [this]  on  the
record:   ...   [T]he  first  person   [E.P.]
looked  at [when she came] into the courtroom
was Mr. Borchgrevink, [and] she continued  to
turn  and look at him.  She continued to  ...
squirm into ... her stepmoms side [while she]
look[ed]  at  Mr. Borchgrevink.   She  peered
around  to  look  at [him], all  [the]  while
saying [that] she didnt know who Estin was or
who  Daddy was, and that no one else had ever
lived [at the house with her and her mother].

     And  it struck [me that this is]  not  a
memory  issue[.]   ... [I]ts  something  else
going on.

          Borchgrevinks attorney asked  Judge
Ashman  to  declare  E.P.  incompetent  as  a
witness, arguing that E.P. [was] not oriented
to   time,   space,  [or]  self.   Over   the
prosecutors  objection, Judge Ashman  granted
the defense attorneys request.
          In   his   ruling,   Judge   Ashman
declared that [E.P.] may be competent [to  be
a  witness at the present time], but  if  she
is,  we  dont  have  a  real  record  of  her
competence  as  it relates to  the  time  and
place  of the alleged assault.  ...  We  have
her  remembering going to the hospital, [but]
thats it.
          Judge   Ashman   also   offered   a
separate rationale for keeping E.P.  off  the
stand.   He  declared that he  was  concerned
about Borchgrevinks right of confrontation as
defined  in the United States Supreme  Courts
decision in Crawford v. Washington, 541  U.S.
36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004):

     The  Court:  My concern is this:  If  we
present  [E.P.]  to the jury ...  ,  assuming
that  she behaves as she has behaved  in  the
courtroom ... this morning, all the jury will
see  is  [E.P.] withdrawing, which in and  of
itself is not probative [of anything].   [But
the  jury  might  view her  silence  and  her
withdrawal    as]   evidence   against    Mr.
Borchgrevink ... .

     [T]he   most  critical  piece  of   [my]
analysis  is the [in]ability [of Borchgrevink
and  his  attorney]  to fairly  cross-examine
[E.P.].   The  right  of  confrontation,  the
Crawford issue here, is the defendants  right
to  confront and cross-examine the [witness].
And if [E.P.] withdraws, there is nothing the
defense   can   do   to  cross-examine   that
reaction.  There is no way for the defense to
confront  the inference that the State  would
seemingly  be  asking the jury to  make  from
that  withdrawal.  So I wont permit [E.P.  to
testify].

          (We express no opinion on the legal
merits  of  Judge Ashmans ruling; rather,  we
simply describe the ruling because it  is  an
important aspect of the procedural history of
Borchgrevinks case.)5
          Once   Judge  Ashman  granted   the
defense  attorneys request to bar  E.P.  from
taking  the  stand, it was obvious  that  the
State   could  no  longer  meet   a   crucial
foundational   requirement  for   introducing
evidence  of  E.P.s  out-of-court  statements
under    Greenway.   However,   Borchgrevinks
attorney did not ask for a mistrial, nor  did
he  ask  Judge Ashman to strike  the  earlier
testimony   describing   E.P.s   out-of-court
statements, nor did he seek any other  relief
          pertaining to the already-admitted first
complaint testimony.
          Conceivably,  one  might   try   to
excuse  the  defense  attorneys  inaction  by
arguing  that, since Judge Ashman also  ruled
that   E.P.s   out-of-court   statement   was
admissible  under  the medical  diagnosis  or
treatment  hearsay  exception,  the   defense
attorney  had nothing to gain by calling  the
judges   attention  to  the  fact  that   the
Greenway   first  complaint   rationale   for
admitting this evidence was no longer  valid.
However, as we have already explained, and as
we  explain again in more detail in the  next
section of this opinion, Judge Ashman did not
rule  that  E.P.s specific identification  of
Borchgrevink as her assailant was covered  by
the  medical  diagnosis or treatment  hearsay
exception.   Rather,  Judge  Ashman  declared
that  the pertinent information for diagnosis
and treatment purposes was the fact that E.P.
told  the  doctor that her assailant  was  an
adult male.  Thus, when Judge Ashman made his
ruling  on the admissibility of E.P.s out-of-
court statement, the judge relied on only one
rationale    the  Greenway  first   complaint
rationale  as legal authority for introducing
evidence   that  E.P.  expressly   identified
Borchgrevink as her assailant.
          Given   these   circumstances,   we
conclude that Borchgrevink failed to preserve
the  objection that first complaint  evidence
is admissible only if the victim testifies at
the defendants trial.
          We  are  therefore confronted  with
the  question of whether we should treat this
matter as plain error.
          Because  E.P. was not a witness  at
Borchgrevinks trial, the admission  of  first
complaint  evidence describing E.P.s  out-of-
court  identification of Borchgrevink as  her
assailant  is  an  obvious  error.   However,
under Alaska law, when a defendant presents a
claim  of  plain  error, the  defendant  must
negate  the possibility that their  attorneys
failure  to  make a timely objection  in  the
trial  court  was the product of  a  tactical
decision.6   Moreover,  when  the  record  is
silent or ambiguous on this point, we apply a
presumption that the defense attorneys action
(or,    more    precisely,   inaction)    was
tactical.7
          Here,  Borchgrevinks attorney could
reasonably   conclude  that   it   would   be
pointless  to  ask  Judge Ashman  to  give  a
          curative instruction to the jurors  i.e., an
instruction directing the jurors to disregard
the    evidence    that    E.P.    identified
Borchgrevink    as   her   assailant.     And
Borchgrevinks attorney had a plausible reason
for not seeking a mistrial.
          The   defense  attorney  had   been
successful in his effort to keep E.P. off the
stand,  on the ground of her incompetency  to
be  a  witness.   Judge Ashmans  decision  to
prohibit E.P. from taking the stand could  be
viewed  as  unexpectedly  favorable  to   the
defense  because the transcript of E.P.s voir
dire   shows  that  she  apparently   was   a
competent  witness when she was  asked  about
general topics.  Judge Ashman ruled that E.P.
was  incompetent based on the fact  that  she
either   could  not,  or  would  not,  answer
questions that involved Borchgrevink.
          If the defense attorney asked for a
mistrial under these circumstances, he  would
run  the  risk  that E.P.  would  testify  at
Borchgrevinks  second trial   either  because
she  would  be  older  and  more  mature,  or
because she might have received counseling to
help  her cope with what had happened to her,
or  because the trial judge might  not  adopt
the    same    view   of   what   constituted
incompetency  for purposes of  Evidence  Rule
601.
          If  E.P. testified at Borchgrevinks
second trial, the defense attorney would have
to  contend with the Greenway first complaint
evidence  all over again.  But  there  was  a
more serious risk to the defense case if E.P.
testified  at the trial.  First,  E.P.  might
directly   identify   Borchgrevink   as   her
assailant.    Second,  E.P.   might   declare
(either truthfully or not) that she no longer
remembered the sexual assault; in that  case,
E.P.s   out-of-court   statement   would   be
admitted  as  a prior inconsistent  statement
under   Alaska  Evidence  Rule  801(d)(1)(A).
See  United  States v. Owens, 484  U.S.  554,
559;  108  S.Ct.  838, 842;  98  L.Ed.2d  951
(1988); Natkong v. State, 925 P.2d 672,  677-
78  (Alaska App. 1996); Van Hatten v.  State,
666 P.2d 1047, 1051 (Alaska App. 1983).  And,
under    Alaska   law,   a   witnesss   prior
inconsistent   statements   are   substantive
evidence;  that  is, the  jury  may  consider
these statements for the truth of the matters
asserted.8
          Of  course, we do not know what was
running  through the defense  attorneys  mind
          after Judge Ashman granted the defense
attorneys request to declare E.P. incompetent
as  a  witness.  But there is  at  least  one
plausible tactical reason why an attorney  in
that  position would not ask Judge Ashman  to
declare a mistrial, and would instead  choose
to  let  the trial proceed.  This  being  so,
Borchgrevink  has  failed to  show  that  the
admission of the first complaint evidence was
plain error.

(d)  Summary of our decision regarding  the  first
complaint evidence

     We conclude that first complaint evidence may
include   a   victims   identification   of    the
perpetrator,  but we also conclude  that  a  trial
judge has the authority, under Evidence Rule  403,
to   exclude  this  facet  of  the  victims  first
complaint if it appears likely that the jury  will
use  this  information  for  an  improper  purpose
i.e.,  treat  it  as substantive evidence  of  the
defendants guilt.
     First complaint evidence is not admissible at
all  unless the victim testifies at the defendants
trial.   This  rule was violated in  Borchgrevinks
case, but not because of an erroneous decision  by
the  trial  judge.  When Judge Ashman  issued  his
ruling on the admissibility of the first complaint
evidence, it appeared that E.P. was going to be  a
witness  at  Borchgrevinks trial.  The problem  of
E.P.s  absence  as a witness did not  arise  until
several days later  when Judge Ashman granted  the
defense motion to declare E.P. incompetent to be a
witness.
          At  that  point,  the defense attorney  might
have  sought  a  mistrial (since the  challenged  first
complaint evidence had already been admitted).  But the
defense attorney did not seek a mistrial, or any  other
related relief, and the circumstances suggest that  the
defense  attorney  may  have had a  plausible  tactical
reason  for  letting the trial continue.  We  therefore
conclude  that,  even though E.P. did  not  testify  at
Borchgrevinks  trial,  the  admission  of   the   first
complaint evidence was not plain error.

Why  we  need  not  decide whether evidence  that  E.P.
identified Borchgrevink as her assailant was admissible
under  the medical diagnosis or treatment exception  to
the hearsay rule

          As   we   explained   earlier,   during   the
litigation  of  this  case in the superior  court,  the
State relied on two separate rationales for introducing
E.P.s  out-of-court statement identifying  Borchgrevink
as  her  assailant.  We have already discussed  one  of
these   rationales:   the  first  complaint   doctrine.
However, the State also relied on the theory that E.P.s
identification  of Borchgrevink was  admissible  as  an
exception  to  the hearsay rule under  Alaska  Evidence
Rule  803(4)  that is, as a statement made for purposes
of medical diagnosis or treatment.
          The  availability  or unavailability  of  the
declarant is irrelevant to the admissibility of an out-
of-court statement under Evidence Rule 803(4).  Indeed,
courts have admitted hearsay under this exception  even
when the person who made the out-of-court statement was
incompetent  to testify.  See Morgan v.  Foretich,  846
F.2d  941,  948-49  (4th Cir. 1988); United  States  v.
Nick, 604 F.2d 1199, 1201-02 (9th Cir. 1979).  However,
Borchgrevink  argues  that  the  medical  diagnosis  or
treatment hearsay exception was not a proper ground for
admitting evidence of E.P.s out-of-court identification
of Borchgrevink as her assailant.
          Borchgrevink points out that, normally,  this
hearsay   exception  does  not  extend  to  a  patients
identification  of  the person  who  hurt  them,  or  a
patients assertion of who was at fault in causing their
injury.9    But  in  recent  years,  there   has   been
significant judicial and academic discussion of whether
the  medical  diagnosis or treatment hearsay  exception
should  cover  a  young  childs out-of-court  statement
concerning   the  identity  of  the  person   who   has
physically  or  sexually abused them.   We  noted  this
controversy in Sluka v. State, 717 P.2d 394, 399 & n. 3
(Alaska App. 1986).
          The  courts  that have construed the  medical
diagnosis  or  treatment exception  to  cover  a  young
victims  identification of their assailant have  relied
on   the  concept  that  doctors  need  to  treat   the
psychological  and  emotional  consequences  of  sexual
abuse  and child abuse, and that doctors need  to  know
whether  it is safe to send a child home.   See  United
States  v. Balfany, 965 F.2d 575, 579 (8th Cir.  1992);
United States v. George, 960 F.2d 97, 99-100 (9th  Cir.
1992);  Morgan v. Foretich, 846 F.2d 941, 948-950  (4th
Cir.  1988); United States v. Lingle, 27 M.J. 704,  707
(Air  Force Ct. Military Rev. 1988); United  States  v.
Deland, 22 M.J. 70, 74-75 (C.M.A. 1986); United  States
v. Renville, 779 F.2d 430, 436-37 (8th Cir. 1985).
          See  also United States v. Joe, 8 F.3d  1488,
1494-95   (10th  Cir.  1993)  (relying  on  this   same
rationale  to  uphold  the  admission,  under   Federal
Evidence Rule 803(4), of an adult womans identification
of  her husband as the person who had subjected her  to
domestic abuse).
          The  courts that reject this expansion of the
medical  diagnosis or treatment hearsay exception  have
analyzed  the problem differently.  These  courts  note
that the underlying premise of the medical diagnosis or
treatment   exception  is  not  that  the   information
contained in the out-of-court statement is pertinent to
medical  diagnosis or treatment, but  rather  that  the
person   who   makes  the  out-of-court  statement   is
presumably  motivated to be truthful because  they  are
seeking medical treatment either for themselves or  for
someone  else  (their child, their spouse,  their  aged
parent,  et cetera).  Thus, the fact that the  identity
of a childs abuser may be pertinent to the diagnosis or
treatment   of  the  childs  medical  or  psychological
problems  is  irrelevant unless the  child  understands
that  this information is pertinent  so that they  will
be  motivated  to  be  truthful  when  they  give  this
information.  See State v. Hinnant, 523 S.E.2d 663, 668-
671  (N.C. 2000); Cassidy v. State, 536 A.2d 666,  678-
680 (Md. App. 1987).
          Borchgrevinks  case does not  require  us  to
resolve  this issue  because, under the facts  of  this
case,  the  issue  is moot.  A careful  examination  of
Judge  Ashmans decision regarding the admissibility  of
E.P.s  out-of-court statement shows that the judge  did
not  rule that E.P.s identification of Borchgrevink was
admissible  under Evidence Rule 803(4).  Rather,  Judge
Ashman ruled that E.P.s identification of her assailant
as an adult male was admissible under Rule 803(4).
          To  recapitulate our earlier  description  of
Judge  Ashmans ruling on this issue, Judge Ashman found
that when the emergency room physician questioned E.P.,
it  was obvious that she had suffered genital injuries,
but  it  was not clear whether those injuries were  the
result  of  a sexual assault, and (if so) whether  that
assault was performed with an adult males penis or with
some  other  object.   For this  reason,  Judge  Ashman
concluded  that the doctors inquiry Who hurt  you?  was
pertinent  to medical diagnosis or treatment   because,
if  E.P.s injuries resulted from sexual penetration  by
an  adult males penis, this information was relevant to
the   doctors  decisions  concerning  the   course   of
treatment.
          At  the  same time, Judge Ashman acknowledged
that the precise identity of E.P.s assailant might  not
have  been  pertinent to the diagnosis or treatment  of
E.P.s   injuries.   The  judge  stated  that  a  better
question  [for the doctor to ask] would have been,  How
did  this  happen?  .  However, Judge Ashman  concluded
that, to the extent the doctors question Who hurt  you?
elicited information about the mechanism by which  E.P.
suffered  the  injuries to her genitals  and  perineum,
E.P.s response was covered by the medical diagnosis  or
treatment hearsay exception:
     
          The Court:  [The question] Who hurt you?
     could  [elicit the response], I hurt  myself,
     or  Another kid hurt me  which would  suggest
     [that  the]  injury  [was  inflicted  by]  an
     object of some kind.  [E.P.s statement]  that
     the  assailant was an adult male, Daddy, gave
     the  doctor information that was relevant  to
     the  diagnosis [and treatment] of the injury,
     because [that type of] sexual assault carries
     with  it  medical consequences  which  differ
     from ... other kinds of traumatic injury  [to
     the genitals].
     
               Thus,  Judge  Ashman did  not  rule
     that E.P.s identification of Borchgrevink was
     admissible   under  Evidence   Rule   803(4).
     Rather,   he   concluded  that  Rule   803(4)
     authorized  the admission of a  circumscribed
     aspect of E.P.s out-of-court statement:   her
     identification of her assailant as  an  adult
     male.
               The limited nature of Judge Ashmans
     ruling  on the medical diagnosis or treatment
     question  seems  to have  been  lost  in  the
     shuffle,    perhaps   because    the    judge
     simultaneously     ruled      that      E.P.s
     identification of Borchgrevink was admissible
     under  the  first  complaint  evidence  rule.
     Thus, the more limited admissibility of E.P.s
     out-of-court statement under Rule 803(4)  may
     not have appeared to be significant.
          But,  for  present  purposes,   the
limited  nature  of Judge Ashmans  ruling  is
significant:  it means that the  legal  issue
which the parties ask us to resolve was never
decided  in the superior court.  Even  though
Judge  Ashman allowed the State to  introduce
evidence that E.P. identified Borchgrevink as
her  assailant, the judge did  not  base  his
ruling  on  a statement for medical diagnosis
or  treatment  theory.   Judge  Ashman  never
reached the question of whether evidence of a
childs   out-of-court  statement,  made   for
purposes  of medical diagnosis or  treatment,
may     properly    include    the     childs
identification of their abuser.  Accordingly,
Borchgrevinks appeal does not require  us  to
resolve that question.
          Borchgrevink    raises     another,
broader  issue  in  this appeal.   He  argues
that,  because E.P. was only two and  a  half
years old when she suffered her injuries  and
was taken to the hospital, E.P. was too young
to  be aware that the questions put to her by
the  doctor were being asked for purposes  of
medical  diagnosis or treatment   and,  thus,
the  State  failed to lay the foundation  for
admitting  any  of  E.P.s statements  to  the
doctor.
          In raising this issue, Borchgrevink
faces  the procedural problem that his  trial
attorney  did  not present this  argument  to
Judge Ashman.
          We  acknowledge  that  the  defense
attorney  did argue that E.P.s identification
of  Borchgrevink was not admissible under the
medical   diagnosis   or  treatment   hearsay
exception  because  E.P. did  not  understand
that  information concerning the identity  of
her  assailant would help the doctor and  the
nurse  in  their evaluation and treatment  of
her  injuries.  But Judge Ashman twice  asked
the  defense attorney if he intended to  make
the  broader argument that E.P. was too young
to understand that any of the information she
gave  to  the doctor and the nurse was  being
furnished  for purposes of medical  diagnosis
or  treatment  and, both times,  the  defense
attorney   declined  to  make  that   broader
argument:

     The Court:  Well, the two-prong[ed] test
is  that the [declarant] has to know that the
statements   are   important   for    medical
diagnosis   or  treatment,  and   that   [the
statements] are reasonable for the  physician
to rely on.  Your position is [that] the two-
year-old would not know that she was making a
statement for purposes of medical treatment?

     Defense Attorney:  Well, shes making  an
identification  that is [not]  necessary  for
medical treatment, and ...

     The Court:  Your position is that [this]
exception to the hearsay rule exists  because
we  believe  that people will  not  fabricate
statements  when [the statements  are]  being
made for medical diagnostic purposes, because
theyd  have such a strong interest in  giving
accurate  information.  So your  position  is
[that] the child couldnt have known what  was
going on?

     Defense  Attorney:  Well, she could  not
know  [that] the identification promoted [or]
furthered her medical treatment.

(Emphases added)
          Thus,     the     argument     that
Borchgrevink   now  makes  on   appeal    the
argument that E.P. was too young to be  aware
that any of the information she furnished  to
the doctor was intended for medical diagnosis
or  treatment  is not preserved  for  appeal.
If  Borchgrevink is to prevail on this claim,
he must show plain error.
          In  his brief, Borchgrevink asserts
that  there was no direct evidence  presented
to  the  superior court that E.P.  understood
the  nature  or purpose of her visit  to  the
hospital.   If that is so, it is because  the
defense attorney did not raise this issue  or
ask Judge Ashman to make any findings on this
issue.
          Moreover, even though E.P. may  not
have   been   asked  directly   whether   she
understood that she had been brought  to  the
hospital  so that she could receive treatment
for   her  injuries,  there  was  plenty   of
circumstantial  evidence  to   support   this
inference.
          The  injuries  to E.P.s  head  were
obvious;   it  was  the  presence  of   those
injuries that prompted E.P.s mother  to  take
her  to  be  examined  by  her  pediatrician,
Dr.  Ray  Carlson.  Dr. Carlson was concerned
that E.P. might have a skull fracture, so  he
told E.P.s mother to take her directly to the
hospital emergency room.
          The  emergency  room nurse,  Rachel
Verba,  took E.P. to the bathroom  to  get  a
urine sample, but E.P. was unable to urinate:
she  cried  and  said that  it  hurt  her  to
urinate.  At that point, Nurse Verba observed
blood  in  E.P.s  diaper,  so  she  took  her
straight   in  to  see  the  emergency   room
physician, Dr. Robert Ledda.  Based on  Nurse
Verbas report, Dr. Ledda examined E.P.s labia
and  vaginal  opening  where he found  dried,
crusted  blood.   Prompted by this  discovery
and  by  the obvious injuries to E.P.s  head,
Dr.  Ledda asked E.P. who had hurt her in the
head,  and  who had hurt her in  the  genital
area.
          Given  these circumstances,  it  is
reasonable to conclude that, even though E.P.
was less than three years old, she understood
that  she  was being examined by health  care
professionals,  and that  these  health  care
professionals were interested in finding  out
about, and treating, her injuries.
          See  also  Broderick v.  Kings  Way
Assembly  of God Church, 808 P.2d 1211,  1220
n.  20  (Alaska 1991):  When a three[-]year[-
]old  girl  complains of sexual abuse  almost
immediately  upon being asked for  the  first
time   about   improper  touching,   such   a
complaint has indicia of trustworthiness.
          In    other    words,    even    if
Borchgrevinks  attorney had challenged  these
foundational   elements   of   the    medical
diagnosis  or treatment hearsay exception,  a
reasonable  judge  could  have  rejected  the
challenge.  Accordingly, Judge Ashman did not
commit   plain  error  when  he  ruled   that
evidence  of  E.P.s answers  to  the  doctors
questions  was admissible under  the  medical
diagnosis or treatment hearsay exception.

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
  1   AS   11.41.200(a)(2)   (4),  AS  11.41.410(a)(1),  and   AS
11.41.434(a)(1), respectively.

2  See  State v. Troupe, 677 A.2d 917, 922 n. 7 (Conn. 1996)
(Because [first complaint] testimony is admissible  only  to
assist the jury in evaluating the credibility of the alleged
victim and not to prove the truth of the facts recited,  the
doctrine,  strictly speaking, is not a hearsay  exception.);
State v. Grady, 183 N.W.2d 707, 713 (Iowa 1971) (The purpose
of  [first complaint] evidence is not to show the  truth  of
the  matter  asserted  in the utterance,  but  only  that  a
complaint was uttered by the [victim]. The hearsay  rule  is
not  involved.); State v. Blohm, 281 N.W.2d 651, 652  (Minn.
1979)  ([First complaint evidence is] not even hearsay under
Rule  801(c), Rules of Evidence, since it [is] not  admitted
for   the  purpose  of  proving  the  truth  of  the  matter
asserted.).

3 See Vann v. State, 229 P.3d 197, 208-09 (Alaska App. 2010);
Guerre-Chaley v. State, 88 P.3d 539, 542 (Alaska App. 2004);
Commentary  to  Alaska Evidence Rule 703,  fifth  and  sixth
paragraphs.

4 See Broderick v. Kings Way Assembly of God, 808 P.2d 1211,
1216 (Alaska 1991); Vann, 229 P.3d at 208-09; Guerre-Chaley,
88 P.3d at 541-42.

5Compare United States v. Owens, 484 U.S. 554, 559; 108 S.Ct.
838,  842;  98  L.Ed.2d 951 (1988)  (holding  that  the
confrontation clause was not violated by the  admission
of an out-of-court identification made by the victim of
an  assault who, when called as a witness at trial, was
unable to remember the occurrence due to brain injury);
and Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska
App. 1983) (upholding the admission of a witnesss prior
statement  as a prior inconsistent statement after  the
witness   the defendants stepdaughter  took  the  stand
and  falsely  asserted that she had no  memory  of  the
events in question).

6Vann v. State, 229 P.3d 197, 212 (Alaska App. 2010).

7Ibid.

8Beavers v. State, 492 P.2d 88, 94 (Alaska 1971); State v.
Batts, 195 P.3d 144, 158 (Alaska App. 2008); Commentary
to Alaska Evidence Rule 801(d)(1)(A), third paragraph.

9 See Johnson v. State, 579 P.2d 20, 22 (Alaska 1978); Clark
v. State, 199 P.3d 1203, 1205-06 (Alaska App. 2009).

Case Law Statutes, Regs & Rules Constitutions Miscellaneous

IT Advice, Support, Data Recovery & Computer Forensics. (907) 338-8188 Please help us support these and other worthy organizations: Law Project for Psychiatraic Rights Soteria-alaska Choices AWAIC