BORCHGREVINK v. STATE OF ALASKA

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. A-10234.

Attorney(S)

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.

See more information ...

Smart Summary

Please sign up to generate summary.

Estin W. BORCHGREVINK, Appellant, v. STATE of Alaska, Appellee.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and reading for review in this civil rights case are: (1) a motion for summary judgment filed by Defendants Montgomery County Police Department, et al. (Paper 35) and (2) a motion to modify the scheduling order and extend time to respond to Defendants' motion for summary judgment (Paper 39). The issues have been fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendants' motion for summary judgment will be granted in part and denied in part and Plaintiff's motion to modify the scheduling order will be denied.

I. Background

A. Facts

The following facts are undisputed. As of October 2006, when the events relevant to this case occurred, Plaintiff Melissa Dent was a resident of Gaithersburg, Maryland. Defendants are the Montgomery County Police Department, Officer Adam Siegelbaum, Officer Kimberly Wilson, Officer John Mullaney, and Officer Jennifer Phoenix.

On October 7, 2006, Officers Siegelbaum, Wilson, Mullaney, and Phoenix (the "Officers") were dispatched to Plaintiff's home after Plaintiff's friend, Sabrina Gorham, called 911 for emergency assistance. (Paper 35, Ex. 1, Nos. 4, 7; Paper 43, Ex. A ¶ 16; Paper 43, Ex. B ¶ 6). Ms. Gorham told the 911 dispatcher that Plaintiff had taken some pills and asked for an ambulance. ( Id.). Officer Siegelbaum arrived at Plaintiff's house first. (Paper 35, Ex. 1, No. 7; Paper 43, Ex. A ¶ 17; Paper 43, Ex. B ¶ 9). Plaintiff, Ms. Gorham, and her husband Sean Gorham were inside Plaintiff's home. Officer Siegelbaum questioned Plaintiff about whether she was attempting to commit suicide and how many pills she took. (Paper 35, Ex. 1, No. 7; Paper 43, Ex. A ¶¶ 18-24; Paper 43, Ex. B ¶ 10-11, 17). Officer Siegelbaum told Plaintiff that she was going to be taken to the hospital. (Paper 35, Ex. 2, No. 4; Paper 43, Ex. A ¶ 26). Plaintiff refused to be taken to the hospital. (Paper 35, Ex. 1, No. 4; Paper 35, Ex. 3, No. 4; Paper 43, Ex. A ¶ 26). While this exchange took place, Officers Mullaney and Phoenix arrived, followed by Officer Wilson. (Paper 43, Ex. A ¶¶ 29-30; Paper 43, Ex. B ¶¶ 15). These Officers also asked Plaintiff and

her friends questions about whether Plaintiff was attempting to commit suicide and how many pills she took. (Paper 35, Ex. 1, No. 4; Paper 35, Ex. 2, No. 4; Paper 43, Ex. A ¶¶ 29-30; Paper 43, Ex. B ¶¶ 15).

Nearly all of the remaining facts are in dispute.

The Officers report the following facts: The Officers were dispatched to Plaintiff's house for a "suicide in progress." (Paper 35, Ex. 1, No. 4, 7). The Officers observed beer and pill bottles lying around the home. ( Id.). When the Officers arrived, they observed that Plaintiff had red, watery, bloodshot eyes and spoke in slurred speech. (Paper 35, Ex. 5, at 28). The Officers asked Plaintiff how many pills she had taken and she gave varying responses to the question, eventually responding that she had taken the "whole fucking bottle." (Paper 35, Ex. 1, No. 4). The Officers pleaded with Plaintiff for her to go with them for an emergency evaluation petition at the Shady Grove Adventist Hospital. (Paper 35, Ex. 1, Nos. 4, 7; Ex. 2; Ex. 3, No. 4; Ex. 4). Plaintiff refused to go with the Officers. Plaintiff became violent, combative, and agitated. (Paper 35, Ex. 1, Nos. 4, 7, 22; Ex. 2, Nos. 4, 22). The Officers were concerned about Plaintiff's health and safety and thought she had ingested drugs and alcohol. (Paper 35, Ex. 1, No. 7). The Officers thought that an overdose effect might occur. ( Id.).

The Officers told Plaintiff that they needed to handcuff her and take her to the hospital. (Paper 35, Ex. 2, No. 4). Plaintiff swung her lit cigarette at Officer Siegelbaum. (Paper 35, Ex. 1, No. 7). Officer Mullaney tried to grab Plaintiff's left arm for handcuffing, and Plaintiff actively resisted, kicked, and tried to bite the Officers. (Paper 35, Ex. 1, No. 7; Ex. 2, No. 4). The Officers instructed Plaintiff to stop resisting, calm down, and give them her hands. (Paper 35, Ex. 1, No. 7; Ex. 2, No. 4; Ex. 3, No. 4). Plaintiff responded with more physical resistance. (Paper 35, Ex. 1, No. 4; Ex. 2, No. 4; Ex. 3, No. 4; Ex. 4, No. 4). The Officers warned Plaintiff that she needed to cooperate or she would be Tased. (Paper 35, Ex. 3, No. 4). Officer Mullaney attempted to handcuff Plaintiff's left arm, Officer Siegelbaum attempted to handcuff her right arm, and Officer Wilson attempted to control Plaintiff's kicking legs. (Paper 35, Ex. 1, No. 7; Ex. 2, No. 4; Ex. 3, No. 4). Plaintiff kicked Officer Wilson in the inner thigh and bit Officer Siegelbaum. (Paper 35, Ex. 3, No. 4; Ex. 1, No. 16). Officer Wilson radioed for further backup. (Paper 35, Ex. 3, No. 4). Officer Siegelbaum and Officer Wilson Tased Plaintiff so that they could handcuff her. (Paper 35, Ex. 1, No. 4; Ex. 3, No. 4; Ex. 4, No. 4).

Emergency fire and rescue personnel were on the scene, but it was decided that Plaintiff would be transported to the hospital in the police cage car because of Plaintiff's violent behavior. (Paper 35, Ex. 2, No. 8; Ex. 3, No. 8). The Officers asked the fire and rescue personnel what symptoms of overdose they should watch for during transport and were warned about possible complaints of chest pain. (Paper 35, Ex. 2, No. 8). In route to the hospital, Plaintiff complained of chest pains. (Paper 35, Ex. 1, No. 8; Ex. 2, No. 8). Officer Siegelbaum pulled the car over at a fire station so Plaintiff could be transferred into an ambulance for the rest of the ride to the hospital. (Paper 35, Ex. 1, No. 18; Ex. 2, No. 18). Officer Mullaney rode with Plaintiff in the ambulance. (Paper 35, Ex. 1, No. 8; Ex. 2, No. 8). Officer Phoenix prepared an emergency evaluation petition and Plaintiff was evaluated at Shady Grove Adventist Hospital. (Paper 35, Ex. 8). Plaintiff's blood alcohol level was .284. (Paper 35, Ex. 9, at 7). Plaintiff was transferred to Potomac Ridge Behavioral Health, where she was admitted for three days. (Paper 35, Ex. 10).

Plaintiff's version of the facts is strikingly different. Plaintiff reports the following facts: On October 7, 2006, Plaintiff drank approximately four beers during the day in the company of two of her neighbors. (Paper 43, Ex. A ¶ 3, 4; Ex. C ¶ 3). That day, Plaintiff's children were at Ms. Gorham's home. (Paper 43, Ex. A ¶ 4; Ex. B ¶ 1). Plaintiff decided to go to bed early, and took one or two sleeping pills. (Paper 43, Ex. A ¶¶ 6-7). Before Plaintiff went to sleep, she called Ms. Gorham to make sure that everything was set for Plaintiff's children to stay overnight at the Gorhams' home. (Paper 43, Ex. A ¶ 9; Ex. B ¶ 2). Plaintiff told Ms. Gorham to tell Plaintiff's children that she said goodnight and that she loved them. (Paper 43, Ex. A at ¶ 11; Ex. B ¶¶ 2-3). Ms. Gorham expressed that Plaintiff sounded loopy or drowsy. (Paper 43, Ex. A ¶ 10; Ex. B ¶ 3). Plaintiff indicated that she was fine and that her sleeping pills made her drowsy. (Paper 43, Ex. A ¶ 10).

Shortly thereafter, Ms. and Mr. Gorham decided to check on Plaintiff to make sure that she was okay, so they let themselves into her house with a key. (Paper 43, Ex. A ¶ 13; Ex. B ¶ 4). Plaintiff was in her room, and Ms. Gorham asked Plaintiff to come downstairs and sit on the couch; she did so and began to smoke cigarettes. (Paper 43, Ex. A ¶ 14; Ex. B ¶ 5). There were no beer or pill bottles lying around the home. (Paper 43, Ex. A ¶ 37; Ex. B ¶¶ 12-13). Ms. Gorham called 911 and asked for an ambulance. (Paper 43, Ex. A ¶ 16; Ex. B ¶ 6). Ms. Gorham told the dispatcher that Plaintiff sounded a bit loopy and that she had taken a couple of pills. ( Id.). Ms. Gorham told the dispatcher that Plaintiff was not suicidal. (Paper 43, Ex. B ¶ 7). Ms. Gorham reported that Plaintiff seemed alert. ( Id.). The 911 dispatcher said that an ambulance would be sent to Plaintiff's house. ( Id.).

About ten minutes later, Officer Siegelbaum arrived. (Paper 43, Ex. A ¶ 17; Ex. B ¶ 9). Officer Siegelbaum repeatedly questioned Plaintiff and Ms. Gorham and accused Plaintiff of attempting suicide. (Paper 43, Ex. A ¶¶ 18-24; Ex. B ¶¶ 10-11, 17). Plaintiff told Officer Siegelbaum that she had taken one or two pills. ( Id.). Officer Siegelbaum told Plaintiff that she would be taken to the hospital. (Paper 43, Ex. A ¶ 26). Plaintiff did not want to go to the hospital in the custody of a police officer. ( Id.). Officer Siegelbaum continued to tell Plaintiff that she had attempted suicide and question her about the number of pills she took. (Paper 43, Ex. A ¶¶ 18-24; Ex. B ¶¶ 10-11, 17-18).

The other Officers arrived and questioned Plaintiff in an aggressive and hostile manner. (Paper 43, Ex. A ¶¶ 29-30; Ex. B ¶ 15). The emergency medical personnel waited outside of Plaintiff's home but were not permitted to enter. (Paper 43, Ex. A ¶ 28; Ex. C ¶¶ 7-9). No Officer asked Plaintiff if she would be willing to be seen by a paramedic or other emergency medical professional. (Paper 43, Ex. A ¶ 28). Officer Siegelbaum asked Ms. Gorham to retrieve the pill bottle for her sleeping pills, which she did. (Paper 43, Ex. A ¶ 37; Ex. B ¶ 14). Officer Siegelbaum called Poison Control, and the other Officers continued to question Plaintiff. (Paper 43, Ex. A ¶ 38). Plaintiff did not become aggressive with the Officers or verbally or physically threaten them. (Paper 43, Ex. A ¶¶ 27, 32-34; Ex. B at ¶¶ 18-22). When asked how many pills she took, Plaintiff did state, "Fuck it! I took one or two!" but did not say that she took "the whole fucking bottle." (Paper 43, Ex. A ¶¶ 35-36; Ex. B ¶¶ 11, 16). Plaintiff told the officers that she was not going anywhere and instructed them to get out of her house. (Paper 43, Ex. A ¶¶ 39-40).

Plaintiff reports that Officers Siegelbaum and Mullaney picked or dragged her up off the couch and slammed her face down on the floor. (Paper 43, Ex. A ¶¶ 40, 43-44; Ex. B ¶ 22). Officer Mullaney drove his knee into Plaintiff's back and grabbed her left arm and twisted it behind her back, and told her that he would break her other arm if she did not give it to her. (Paper 43, Ex. A ¶¶ 44-45; Ex. B ¶¶ 23-24). Officer Siegelbaum drove his knee into Plaintiff's and into her eye, causing it to become severely black and blue and swell shut. (Paper 43, Ex. A ¶¶ 46, 53; Ex. B ¶ 23; Ex. E). Officers Siegelbaum and Wilson proceeded to Tase Plaintiff several times on her back. (Paper 43, Ex. A ¶¶ 47-48; Ex. B ¶¶ 22-24). Plaintiff had twelve Taser burn wounds on her back. (Paper 43, Ex. F). Ms. Gorham pleaded with the officers to stop, and Officer Phoenix threatened to Tase Ms. Gorham. (Paper 43, Ex. A ¶ 50; Ex. B ¶ 25). Plaintiff had trouble breathing. (Paper 43, Ex. A ¶ 54).

Officer Siegelbaum led Plaintiff out of her home in handcuffs. (Paper 43, Ex. A ¶ 55; Ex. B ¶ 26; Ex. C ¶ 10). Plaintiff asked if she would be taken to the hospital, and Officer Siegelbaum responded that she would after he finished his paperwork. (Paper 43, Ex. A ¶ 56). Officer Siegelbaum placed Plaintiff in his patrol car, later stopped and placed her on a curb, and finally placed her in an ambulance that took her to the hospital. (Paper 43, Ex. A ¶ 57; Ex. C ¶ 10).

B. Procedural History

On April 14, 2008, Plaintiff filed a complaint in this court, which alleged deprivation of her civil rights and gross negligence against certain police officers and Montgomery County. (Paper 1). Plaintiff filed an amended complaint and later, on July 23, 2008, a second amended complaint. (Papers 8 and 14). Discovery ended on August 7, 2009. On September 8, 2009, Defendants filed a motion for summary judgment. (Paper 35). On October 15, 2009, Plaintiff filed a motion to modify the scheduling order and extend time to respond to Defendants' motion for summary judgment. (Paper 39).

II. Summary Judgment

Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4^th Cir. 2008). In other words, if there clearly exists factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4^th Cir. 2001).

When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 127 S.Ct. 1769, 1774 (2007); Emmett, 532 F.3d at 297. A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. Celotex Corp., 477 U.S. at 323. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254; Celotex Corp., 477 U.S. at 324. "A mere scintilla of proof, however, will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4^th Cir. 2003). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50. (citations omitted).

III. Analysis

A. Fourth Amendment Claims

Plaintiff's second amended complaint alleges that the Officers violated Plaintiff's Fourth Amendment rights by using excessive force against her and by forcing her go to the hospital for an emergency evaluation. Defendants argue that the Officers had probable cause to transport Plaintiff to the hospital for her own safety and that none of the officers used excessive force against her.

Defendants liken this case to three cases considered by the United States Court of Appeals for the Fourth Circuit that address detentions for emergency evaluation. See S.P. v. City of Takoma Park, 134 F.3d 260 (4^th Cir. 1998); Gooden v. Howard Cnty., Md., 954 F.2d 960 (4^th Cir. 1992); Vanderwaart v. Baltimore Cnty., Md., 836 F.2d 548 (Table), No. 87-2067, 1987 WL 30227, *1 (4^th Cir. 1987). Defendants note that it was reported to the Officers that Plaintiff had attempted to take her own life and the Officers saw empty beer and drug bottles in her home; as such, they thought she had the wherewithal to commit suicide. Defendants assert that "[b]ased on their training, investigation and observations, the officers reasonably believed Plaintiff had a mental disorder, and that there was a clear and imminent danger of her doing bodily harm to herself." (Paper 35, Attach. 1, at 13). Defendants also argue that they are entitled to immunity for their actions under Md. Code Ann., Cts. Jud. Proc. § 5-623.

Additionally, Defendants argue that the force used by the Officers was reasonable. Defendants assert that (1) Officer Phoenix had no hands-on contact with Plaintiff, (2) Officer Mullaney's physical contact with Plaintiff was limited to him grabbing her left arm and attempting to handcuff her, (3) Officer Siegelbaum's physical contact with Plaintiff was limited to grabbing her arm, placing her on the floor, and using a Taser on Plaintiff so that he could handcuff her, and (4) Officer Wilson's physical contact was limited to attempting to control Plaintiff's legs when she was on the floor and using a Taser on Plaintiff. ( Id. at 15-19).

Plaintiff counters that Defendants did not have probable cause to detain her for an emergency evaluation and that the force used against her was excessive. Plaintiff argues that, after talking with her and her friends, the Officers had no reason to believe that she had a mental disorder or that she was a danger to herself or others. (Paper 43, Attach. 1, at 11). Plaintiff also contends that Defendants are not entitled to immunity for detaining her under Maryland law because they did not act "in good faith and with reasonable grounds." ( Id. at 12). Plaintiff asserts that the cases that Defendants cite are inapposite because the plaintiffs in those cases had exhibited seriously psychotic or violent behaviour. Plaintiff instead likens this case to Bailey v. Kennedy, 349 F.3d 731 (4^th Cir. 2003), in which the Fourth Circuit found that officers did not have probable cause to detain the plaintiff for a psychiatric violation even though they had been informed that the plaintiff was suicidal. Id. at 740-41. Additionally, Plaintiff argues that the Officers used excessive force against her because (1) Officer Phoenix did not protest or attempt to stop the other Officers and threatened to Tase Ms. Gorham; (2) Officer Mullaney threw Plaintiff on the ground, kneed her, and assisted the other Officers in Tasing her; (3) Officer Siegelbaum dragged Plaintiff off of her couch, slammed her on the floor, kneed her in the back and eye, twisted her arms, and Tased her no less than six times; and (4) Officer Wilson bound Plaintiff and Tased her no less than six times. Plaintiff argues that summary judgment should be denied because of genuine disputes of material fact.

To prevail on a claim pursuant to Section 1983, a plaintiff must show that (1) the defendant deprived her of a right secured by the Constitution or the laws of the United States and (2) and the deprivation was achieved by the defendants acting under color of state law. Paul v. Davis, 424 U.S. 693, 696-97 (1976). There is no dispute that the police officers' actions constituted state action.

The first issue is whether Plaintiff's Fourth Amendment rights were violated when the officers made Plaintiff the subject of a petition for an emergency evaluation. The Maryland Health — General Code provides:

(a) A petition for emergency evaluation of an individual may be made under this section only if the petitioner has reason to believe that the individual:

(1) Has a mental disorder; and

(2) The individual presents a danger to the life or safety of the individual or of others.

Md. Code Ann., Health-Gen § 10-622. Furthermore, Md. Code Ann., Cts. Jud. Proc. § 5-624 provides:

(b) Any petitioner who, in good faith and with reasonable grounds, submits or completes a petition under Title 10, Subtitle 6, Part IV of the Health-General Article is not civilly or criminally liable for submitting or completing the petition.

(c) Any peace officer who, in good faith and with reasonable grounds, acts as a custodian of an emergency evaluee is not civilly or criminally liable for acting as a custodian.

Section 5-623(b) also provides that "A person who in good faith and with reasonable grounds applies for involuntary admission of an individual is not civilly or criminally liable for making the application under Title 10, Subtitle 6, Part III of the Health-General Article."

To seize an individual for an emergency medical evaluation, "an officer must have probable cause to believe that the individual posed a danger to herself or others before involuntarily detaining the individual." See S.P., 134 F.3d at 266.

In Bailey, 349 F.3d at 739, the Fourth Circuit explained:

Probable cause is a "practical, nontechnical conception" that addresses the "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S.ct. 2317 (1993) (quotation marks omitted). It is a "fluid concept" that cannot be "reduced to a neat set of legal rules." Id. at 232, 103 S.Ct. 2317. We have previously held that in the case of the law governing seizures for psychological evaluations, there is a "lack of clarity" as far as what constitutes probable cause. Gooden [], 954 F.2d [] [at] 968 [].

Viewing the facts in the light most favorable to Plaintiff, it cannot be determined as a matter of law that the officers had probable cause to seize Plaintiff for an emergency medical evaluation. Although Defendants assert that they were dispatched for a "suicide in progress," Plaintiff presented evidence that Defendants were informed multiple times that Plaintiff was not suicidal. Ms. Gorham reported that she told the 911 dispatcher that Plaintiff was not suicidal. When the officers arrived at Plaintiff's house, Plaintiff was sitting calmly on her couch. Plaintiff asserts that she told each of the officers that she had not attempted suicide and was not attempting to commit suicide. Plaintiff also contends that she told the officers that she had only taken one or two sleeping pills. Plaintiff, Ms. Gorham, and Plaintiff's neighbor Christine Nitterhouse testified that pills and beer bottles were not strewn about Plaintiff's house. Defendants' version of the facts, of course, contradicts Plaintiff's account and calls into question whether Plaintiff was acting violently during their interaction with her. Defendants particularly rely on the fact that the 911 call was coded as a "suicide in progress." However, as in Bailey, "[w]ithout more, the 911 report cannot bear the weight that the officers would place on it. The law does not permit `random or baseless detention of citizens for psychological evaluations.'" Bailey, 349 F.3d at 740 (quoting Gooden, 954 F.2d at 968). There are genuine issues of material fact as to whether Defendants had probable cause for detaining Plaintiff for an emergency medical evaluation and, in regard to the state law immunity defenses, as to whether Defendants acted "in good faith and with reasonable grounds" to petition for an emergency evaluation or involuntarily admit Plaintiff to the hospital. Therefore, summary judgment will be denied on Plaintiff's Fourth Amendment claim that she was involuntarily detained and forced to go to the hospital for an emergency evaluation.

The second issue is whether, even assuming there was probable cause to detain Plaintiff, the officers used excessive force against Plaintiff. The Supreme Court of the United States has clarified that courts must use a standard of "objective reasonableness" to determine whether force used by police officers was excessive in violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989). The question is whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force. Id. at 395. "A reviewing court must make `allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.'" Anderson v. Russell, 247 F.3d 125, 129 (4^th Cir. 2001), cert. denied, 534 U.S. 949 (2001) (quoting Graham, 390 U.S. at 397). "The court's focus should be on the circumstances at the moment force was used and on the fact that officers on the beat are not often afforded the luxury of armchair reflection." Anderson, 247 F.3d at 130 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4^th Cir. 1996) (citations omitted)).

There is a genuine dispute of material fact as to whether the force the officers used against Plaintiff was excessive. Plaintiff testified that she was not aggressive toward the officers and that she asked them to leave her home. Plaintiff recalls that the officers picked or dragged her off her couch and threw her to the floor, kneeing her in the back and eye before they used their Tasers on her at least six times.

On the other hand, the officers recount that Plaintiff acted with increasing levels of agitation and violence. Specifically, the officers testified that Plaintiff kicked Officer Wilson in the inner thigh and bit Officer Siegelbaum. The officers report that they warned Plaintiff that they would have to use their Tasers on her if she would not submit to being handcuffed and taken to the hospital.

The only officer who had no hands-on contact with Plaintiff was Officer Phoenix. Plaintiff asserts that Officer Phoenix threatened to Tase her friends, but the Gorhams are not parties to this suit. Because Plaintiff has not presented evidence that Officer Phoenix used force against her, Officer Phoenix entitled to judgment as a matter of law that he did not violate Plaintiff's Fourth Amendment rights by using excessive force against her. The remaining defendants, however, are not entitled to summary judgment as to Plaintiff's excessive force Fourth Amendment claim because there are genuine issues of material fact as to whether their actions were reasonable.

B. Fourteenth Amendment Claims

Plaintiff's complaint alleged that Defendants violated her Fourteenth Amendment rights when they displayed deliberate indifference to her medical needs and, according to her opposition brief, when the officers "attempted to rob Plaintiff of her liberty without legal justification . . . and attempted to handcuff Plaintiff and drag her out of her home at night. . . ." (Paper 1 ¶¶ 22, 42, 62, and 82; Paper 43, Attach. 1, at 24).

Defendants assert that Plaintiff was not deprived of any Fourteenth Amendment right because the officers did not display deliberate indifference to her medical needs. (Paper 35, Attach. 1, at 19). Plaintiff contends that her Fourteenth Amendment claims are not limited to the officers' deliberate indifference to her medical needs, but also include the officers' deprivation of her liberty without legal justification. (Paper 43, Attach. 1, at 24).

The Fourteenth Amendment provides that no state "shall deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. The due process clause of the Fourteenth Amendment "guarantees more than fair process" and "includes a substantive component that provides heightened protection against government interference with certain fundamental rights." Martin v. St. Mary's Dep't of Social Servs., 346 F.3d 502, 511 (4^th Cir. 2003). The core of substantive due process is to protect the individual against "arbitrary action of government." County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998).

"Only governmental conduct that `shocks the conscience' is actionable as a violation of the Fourteenth Amendment." Young v. City of Mount Rainer, 238 F.3d 567, 574 (2001) (quoting County of Sacramento, 523 U.S. at 846). "[C]onduct that amounts to `deliberate indifference' [] is viewed as sufficiently shocking to the conscience that it can support a Fourteenth Amendment claim." Young, 238 F.3d at 575 (citations omitted). "Deliberate indifference requires a showing that the defendants actually knew of and disregarded a substantial risk of serious injury to the detainee or that they actually knew of and ignored a detainee's serious need for medical care." Id. at 575-76 (citations omitted).

Plaintiff asserts that, after she was handcuffed, Officer Siegelbaum led her out of her home. Plaintiff asked if she would be taken to the hospital, and Officer Siegelbaum responded that she would after he finished his paperwork. Plaintiff has not presented evidence of how long she had to wait to be transported. Officer Siegelbaum placed Plaintiff in his patrol car, later stopped at a fire station when she complained of chest pain, and finally placed her in an ambulance that took her to the hospital. Plaintiff has not presented evidence that Defendants actually knew of and disregarded a substantial risk of serious injury to her or that they actually knew of and ignored her serious need for medical care. Therefore, Plaintiff has not presented sufficient evidence regarding deliberate indifference for a jury to return a verdict in her favor.

Additionally, as the Supreme Court explained in Graham v. Connor, 490 U.S. 386, 395 (1989), there is no separate due process claim for excessive force claims:

Today we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.

All of Plaintiff's claims regarding the deprivation of her liberty due to the officers' actions of handcuffing her and taking her out of her home must be analyzed under the Fourth Amendment.

Therefore, summary judgment will be granted in favor of Defendants on Plaintiff's Fourteenth Amendment claims because she has not presented sufficient evidence for her deliberate indifference claim and her excessive force claims will be evaluated under the Fourth Amendment.

C. Qualified Immunity

The doctrine of qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified immunity is `an immunity from suit, rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Scott v. Harris, 550 U.S. 372, 376 n. 2 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original)).

The Supreme Court of the United States recently revised the procedure for determining whether a defendant is entitled to qualified immunity. Pearson v. Callahan, 129 S.Ct. 808 (2009). Courts are no longer required to consider a rigid two prong analysis "in proper sequence," as directed in Saucier v. Katz, 533 U.S. 194, 200 (2001). Instead, courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 818. The first prong considers whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show [that] the officer's conduct violated a constitutional right[.]" Saucier, 533 U.S. at 201. If the evidence establishes a violation of a constitutional right, the second prong is to assess whether the right was "clearly established" at the time of the events at issue. Id.

The United States Court of Appeals for the Fourth Circuit set out the proper way to evaluate the separate Saucier issues:

The "answer to both Saucier questions must be in the affirmative in order for a plaintiff to defeat a . . . motion for summary judgment on qualified immunity grounds." Batten v. Gomez, 324 F.3d 288, 293-94 (4 ^th Cir. 2003). The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred. Bryant v. Muth, 994 F.2d 1082, 1086 (4 ^th Cir. 1993) ("Once the defendant raises a qualified immunity defense, the plaintiff carries the burden of showing that the defendant's alleged conduct violated the law"); see also Crawford-El v. Britton, 523 U.S. 574, 589, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (noting that the Court's qualified immunity holding in Harlow "related only to the scope of an affirmative defense" and did not change "the plaintiff's burden of proving a constitutional violation"); Carr v. Deeds, 453 F.3d 593, 608 (4 ^th Cir. 2006) (affirming summary judgment in qualified immunity appeal "because the plaintiff failed to bring forth admissible evidence from which the jury could conclude" that the officer used excessive force); Figg v. Schroeder, 312 F.3d 625, 642 (4 ^th Cir. 2002) (noting that a § 1983 plaintiff "must prove the illegality of the seizure"). The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity. Wilson v. Kittoe, 337 F.3d 392, 397 (4 ^th Cir. 2003) ("The burden of proof and persuasion with respect to a claim of qualified immunity is on the defendant official."); see also Bailey [], 349 F.3d [][at] 739 [](same); Tanner v. Hardy, 764 F.2d 1024, 1027 (4 ^th Cir. 1985) ("It is a well established principle that qualified immunity . . . is a matter on which the burden of proof is allocated to the defendants."); Logan v. Shealy, 660 F.2d 1007, 1014 (4 ^th Cir. 1981) ("the good faith immunity of individual police officers is an affirmative defense to be proved by the defendant"); cf. Dennis v. Sparks, 449 U.S. 24, 29, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (noting that in a § 1983 action "the burden is on the official claiming immunity to demonstrate his entitlement"); but cf. Harlow, 457 U.S. at 815 n. 24, 102 S.Ct. 2727, 73 L.Ed.2d 396 (explaining that the Court had not decided which party bears the burden of proof).

Henry v. Purnell, 501 F.3d 374, 377-78 (4^th Cir. 2007) (footnotes omitted).

In considering the second prong of the Saucier framework, the key issue is whether the law at the time the events in question occurred "gave the officials `fair warning' that their conduct was unconstitutional." Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4^th Cir. 2006). "[T]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). "[A]lthough the exact conduct at issue need not have been held to be unlawful in order for the law governing an officer's actions to be clearly established, the existing authority must be such that the unlawfulness of the conduct is manifest." Wilson v. Layne, 141 F.3d 111, 114 (4^th Cir. 1998), aff'd, 526 U.S. 603 (1999). If the right was not clearly established, the qualified immunity doctrine shields a defendant officer from liability.

Plaintiff has met her burden for showing that the officers' conduct violated her Fourth Amendment rights, both as to her right to be free of excessive force and to not be seized for an emergency medical evaluation without probable cause. Defendants have not met their burden of proof to demonstrate they are entitled to qualified immunity. First, the law is clearly established that individuals have a right to be free from excessive force during the course of a seizure, Turmon v. Jordan, 405 F.3d 202, 206 (4^th Cir. 2005) (finding the "general right to be free from unreasonable seizures is as old as the Fourth Amendment"). It is equally well established that police may not use a Taser on a compliant adult. Second, Defendants have failed to demonstrate as a matter of law that Plaintiff's right to be free from seizure for an emergency medical evaluation absent probable cause was not clearly established at the time of the incident. Defendants do not explain why the right is not clearly established after the Fourth Circuit's opinion in Bailey, 349 F.3d at 731, decided in 2003. Therefore, summary judgment will be denied as to Defendants' qualified immunity claim.

D. Maryland State Law Claims

1. Articles 24 and 26 of the Maryland Declaration of Rights

Article 24 of the Maryland Declaration of Rights protects substantive due process rights and Article 26 protects the right to be free from unreasonable searches and seizures. The provisions are construed in pari materia with the Fourteenth and Fourth Amendments of the United States Constitution, respectively. See Canaj, Inc. v. Baker Div. Phase III, 391 Md. 374, 424 (2006); see also Carter v. State, 367 Md. 447, 458 (2002); State v. Smith, 305 Md. 489, 513-514 (1986), cert. denied, 476 U.S. 1186 (1986). Summary judgment will be granted in favor of Defendants as to Plaintiff's Fourteenth Amendment claims so summary judgment will also be granted on Plaintiff's due process claims under Article 24.

Article 26 of the Maryland Declaration of Rights protects the right to be free from unreasonable searches and seizures. Maryland courts "have long recognized that Article 26 is in pari materia with the Fourth Amendment," Richardson v. McGriff, 361 Md. 437, 452-53, 762 A.2d 48, 56 (2000) (internal citations omitted). As such, the disposition of Plaintiff's § 1983 claim under the Fourth Amendment "dictates the same result on [her] Article 26 claim." Mazuz v. Maryland, 442 F.3d 217, 231 (4^th Cir. 2006). Just as summary judgment will be denied on Plaintiff's Fourth Amendment claims, with the exception of her Fourth Amendment excessive force claim as to Officer Phoenix, summary judgment will be denied as to Plaintiff's claims under Article 26. See id. ("Although, theoretically, the resolution of claims under the Fourth Amendment and Article 26 can differ, we discern no basis in this record or under Maryland law to support a different construction of these provisions.") (internal citation omitted)).

Article 26 provides: "That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted."

2. Municipal Liability

Defendants argue that Plaintiff's evidence against Montgomery County is insufficient under Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). (Paper 35, at 23-26). Plaintiff concedes that she cannot prove her municipal liability claim against Montgomery County without additional discovery. (Paper 43, Attach. 1, at 28). As discussed below, Plaintiff will not be permitted to conduct additional discovery. Therefore, summary judgment will be granted in favor of Montgomery County on Plaintiff's municipal liability claim.

3. Article III, § 40

Defendants move for summary judgment on Plaintiff's claim under Article III, § 40 of the Maryland Constitution because Plaintiff has not made any claim that her property was taken for public use. Plaintiff agrees to a dismissal of her Article III, § 40 claim. Therefore, Plaintiff's Article III, § 40 claim will be dismissed with prejudice.

E. Punitive Damages

Defendants move for summary judgment on Plaintiff's claim for punitive damages, asserting that she has no evidence that the officers acted with malice. (Paper 35, Attach. 1, at 30). Plaintiff counters that she has presented evidence that the officers acted in a hostile and violent manner without an objective basis for doing so. (Paper 43, Attach. 1, at 31).

Assuming that Plaintiff can establish entitlement to compensatory damages against the Defendant Officers, she may only recover punitive damages against them under Section 1983 if she can show their conduct "to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). Similarly, under Maryland law, "[p]unitive damages are available against individuals upon a showing of actual malice." Robles v. Prince George's County, 302 F.3d 262, 273 (4^th Cir. 2002) (citing Bowden v. Caldor, Inc., 350 Md. 4, 23, 710 A.2d 267, 276 (1998)). Plaintiff has provided evidence that the officers unnecessarily restrained, kneed, and Tased her and forced her to go to the hospital in response to her denial of trying to commit suicide and her request for them to leave her home. Viewing the facts in the light most favorable to Plaintiff, there are sufficient disputes of material fact for the jury to decide the question of malice.

IV. Motion to Modify the Scheduling Order and to Extend Time to Respond to Defendants' Motion for Summary Judgment

Plaintiff moves to modify the scheduling order to allow additional time for discovery. Plaintiff recounts the following case history:

Per the Court's Order of May 8, 2009, discovery closed and a status report was due on August 7, 2009 and dispositive motions were due on September 8, 2009. On August 7, 2009, through a joint status report, Plaintiff's former attorney apparently agreed that the parties had completed discovery. However, that same day, Plaintiff's former attorney filed a motion to withdraw his appearance. The Court granted the motion on September 1, 2009.

This motion also requested an extension of time to file a response to the motion for summary judgment. That aspect of the motion was granted and Plaintiff's response was filed December 4, 2009. See paper 42.

(Paper 39, Attach. 2, at 2). Plaintiff notes that she was not able to retain new counsel until October 2009, in part because her former attorney would not give her the case file. (Paper 41, at 4-5). Plaintiff now asserts that her former attorney neglected to complete discovery and asks for discovery to be reopened so that she may retain experts to offer opinions as to (1) whether the force used by the officers was reasonable, (2) whether the training offered by Montgomery County was reasonable, (3) what are the appropriate police procedures in cases like this one, and (4) what are the methods, reasonableness, and appropriateness of Taser usage in this case. (Paper 39, Attach. 2, at 3).

Defendants respond that discovery should not be reopened and that Plaintiff's opposition to their motion for summary judgment was untimely. (Paper 40, at 3-4). Defendants contend that Plaintiff has failed to establish "excusable neglect" by her former attorney under Fed.R.Civ.P. 6(b)(1)(B). ( Id. at 5).

Because the motion to extend time was filed after the deadline for Plaintiff's opposition brief had passed, Plaintiff's motion will be reviewed pursuant to Fed.R.Civ.P. 6(b)(1)(B). This Rule requires "excusable neglect" for a motion to extend time when the motion is made after the time for the moving party to act has already expired. "[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable neglect.'" Thompson v. E.I. DuPont de Nemours Co., Inc., 76 F.3d 530, 533 (4^th Cir. 1996). While Plaintiff had ample time to find a new attorney and respond to Defendants' motion for summary judgment, Plaintiff's delay in responding did not prejudice Defendants.

Fed.R.Civ.P. 16(b) governs the modification of a scheduling order. District courts have broad discretion to manage the timing of discovery, Ardrey v. United Parcel Service, 798 F.2d 679, 682 (4^th Cir. 1986), cert. denied, 480 U.S. 934 (1987), and the only formal limitation on this discretion with respect to consideration of motions to amend scheduling orders is that the moving party demonstrate good cause. Fed.R.Civ.P. 16(b)(4). "Good cause" is shown when the moving party demonstrates that the scheduling order deadlines cannot be met despite its diligent efforts. Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999) (quoting Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997), aff'd by unpublished opinion, 129 F.3d 116 (Table), 1997 WL 702267 (4^th Cir. 1997).

The parties have briefed the issue of excusable neglect under Rule 6(b)(1)(b) instead of good cause under Rule 16(b). Nevertheless, Plaintiff had ample time to conduct discovery. The discovery deadline was extended twice, from December 8, 2008 to February 23, 2009 and later August 7, 2009. Plaintiff's former attorney propounded written discovery on all four officers and Montgomery County. Plaintiff's new counsel has not shown why Plaintiff's former attorney lacked diligence in conducting discovery. Plaintiff will not be allowed to conduct additional discovery and the scheduling order will not be modified. Therefore, Plaintiff's motion will be denied as to her request for additional time for discovery.

V. Conclusion

For the foregoing reasons, Defendants' motion for summary judgment will be granted in part and denied in part and Plaintiff's motion to modify the scheduling order to allow further discovery will be denied. A separate Order will follow.

sonable 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 victim's 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 Court's 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 victim's 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 victim's 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 victim's 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 law's traditional proscription of the "details" of the victim's earlier complaint was intended to deter the jury from treating the victim's 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 defendant's guilt. Wigmore, § 1136, Vol. 4, p. 307.

"First complaint" evidence is intended solely to corroborate the victim's testimony. As this Court recognized in Nitz, "the [first complaint] doctrine is founded on the assumption that evidence of the victim's 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.

See State v. Troupe, 237 Conn. 284, 677 A.2d 917, 922 n. 7 (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.").

Thus, there may be little practical significance whether "first complaint" evidence can properly include information about the victim's 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 victim's out-of-court statement as substantive proof of the matters asserted.

See State v. Samuels, 273 Conn. 541, 871 A.2d 1005, 1011-12 (2005); Fitzgerald v. United States, 443 A.2d 1295, 1303-04 (D.C.App. 1982); Commonwealth v. Licata, 412 Mass. 654, 591 N.E.2d 672, 674-75 (1992), as modified in Commonwealth v. King, 445 Mass. 217, 834 N.E.2d 1175, 1197-98 (2005); People v. Straight, 430 Mich. 418, 424 N.W.2d 257, 261 (1988).

(This limitation does not apply when the victim's 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, 8 Cal.4th 746, 35 Cal.Rptr.2d 407, 408 n. 1, 883 P.2d 949, 950 n. 1 (1994).)

For these reasons, it may ultimately be more profitable to view the controversy about whether "first complaint" evidence should include the victim's 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 victim's in-court testimony; the danger is that the jury will view the evidence as independent, substantive proof of the matters asserted in the victim's out-of-court statement.

The law's traditional ban on the inclusion of "details" in first complaint evidence appears to be based on the perception that, the more detailed the witness's description of the victim's out-of-court statement, the greater the likelihood that the jury will treat the witness's "first complaint" testimony as substantive evidence, separate from (and independent of) the victim's 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 witness's lack of personal knowledge. 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.

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.

See Broderick v. King's 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.

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 expert's testimony concerning these matters] will be used for an improper purpose outweighs their value as support for the expert's 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 expert's 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 victim's 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 victim's 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 witness's description of the general content of the victim's 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 child's 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" witness's testimony if there is a substantial danger that the jury will view this information as independent proof of the defendant's guilt. As we discussed in Nitz, this danger can be significant if "a parade of witnesses is allowed to offer evidence of [the victim's] 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 Court's decisions in Nitz, Nusunginya, and Kosbruck. As we have explained, all three of these decisions upheld the admission of "first complaint" evidence that included the victim's 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 victim's 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 victim's 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 victim's identification of the perpetrator from any testimony describing the victim's first complaint.

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

By this point in our discussion, attentive readers already will have perceived that the admission of the "first complaint" evidence at Borchgrevink's 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 victim's out-of-court statement — here, E.P.'s out-of-court assertion that "Daddy did this" — as substantive proof of the matter asserted.

In Borchgrevink's 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 Borchgrevink's trial began. When Judge Ashman was asked to make a ruling on this issue, it appeared that E.P. was going to testify at Borchgrevink's 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 Borchgrevink's trial, when the State called E.P. to the stand (outside the jury's presence) and attempted to establish her competency as a witness.

At the time of Borchgrevink's 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 Borchgrevink's presence. Judge Ashman described E.P.'s reaction:

The Court: I'll 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 stepmom's side [while she] look[ed] at Mr. Borchgrevink. She peered around to look at [him], all [the] while saying [that] she didn't 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]t's something else going on.

Borchgrevink's 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 prosecutor's objection, Judge Ashman granted the defense attorney's 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 don't 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] that's it."

Judge Ashman also offered a separate rationale for keeping E.P. off the stand. He declared that he was concerned about Borchgrevink's right of confrontation as defined in the United States Supreme Court's 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 [inability [of Borchgrevink and his attorney] to fairly cross-examine [E.P.]. The right of confrontation, the Crawford issue here, is the defendant's 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 won't permit [E.P. to testify].

(We express no opinion on the legal merits of Judge Ashman's ruling; rather, we simply describe the ruling because it is an important aspect of the procedural history of Borchgrevink's case.)

Compare 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 witness's prior statement as a "prior inconsistent statement" after the witness — the defendant's stepdaughter — took the stand and falsely asserted that she had no memory of the events in question).

Once Judge Ashman granted the defense attorney's 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, Borchgrevink's 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 attorney's 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 judge's 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 defendant's 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 Borchgrevink's 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 attorney's failure to make a timely objection in the trial court was the product of a tactical decision. Moreover, when the record is silent or ambiguous on this point, we apply a presumption that the defense attorney's action (or, more precisely, inaction) was tactical.

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

Ibid.

Here, Borchgrevink's 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 Borchgrevink's 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 Ashman's 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 Borchgrevink's 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 Borchgrevink's 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 witness's prior inconsistent statements are substantive evidence; that is, the jury may consider these statements for the truth of the matters asserted.

Beavers 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,

Of course, we do not know what was running through the defense attorney's mind after Judge Ashman granted the defense attorney's 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 victim's 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 victim's 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 defendant's guilt.

First complaint evidence is not admissible at all unless the victim testifies at the defendant's trial. This rule was violated in Borchgrevink's 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 Borchgrevink's 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 Borchgrevink's trial, the admission of the first complaint evidence was not plain error.

Why ive 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 patient's identification of the person who hurt them, or a patient's assertion of who was at fault in causing their injury. 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 child's 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).

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

The courts that have construed the "medical diagnosis or treatment" exception to cover a young victim's 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 woman's 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 child's abuser may be pertinent to the diagnosis or treatment of the child's 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, 351 N.C. 277, 523 S.E.2d 663, 668-671 (2000); Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 678-680 (1988).

Borchgrevink's 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 Ashman's 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 Ashman's 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 male's penis or with some other object. For this reason, Judge Ashman concluded that the doctor's inquiry "Who hurt you?" was pertinent to medical diagnosis or treatment — because, if E.P.'s injuries resulted from sexual penetration by an adult male's penis, this information was relevant to the doctor's 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 doctor's 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 Ashman's 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 Ashman's 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 child's out-of-court statement, made for purposes of medical diagnosis or treatment, may properly include the child's identification of their abuser. Accordingly, Borchgrevink's 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, she's 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 they'd have such a strong interest in giving accurate information. So your position is [that] the child couldn't 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 Verba's 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. King's 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 Borchgrevink's 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 doctor's questions was admissible under the "medical diagnosis or treatment" hearsay exception.

Conclusion

The judgement of the superior court is AFFIRMED.

Estin W. BORCHGREVINK, Appellant, v. STATE of Alaska, Appellee.

Comments