Opinion
Court of Appeals No. A-10481.
May 25, 2011.
Appeal from the Superior Court, Third Judicial District, Valdez, Eric Smith, Judge, Trial Court No. 3VA-07-146 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jeremy Duncan was convicted of sexual abuse of a twenty-month-old girl named B.T. On the night of the offense, B.T.'s mother and Duncan's girlfriend went out for the evening, and Duncan was babysitting for B.T. The next day, when B.T.'s mother changed B.T.'s diaper, she noticed spots of blood and B.T. cried when her mother tried to wipe her. B.T.'s mother took B.T. to the emergency room, and the medical professionals found vaginal injuries. Duncan initially denied that he caused any injury to B.T. But he eventually admitted to the police that he stuck his pinky finger into her vagina and that she started to bleed when he pulled his finger out. He also prepared a written statement at the police station containing the same admission.
At trial, Duncan testified that when he first changed B.T.'s diaper, she did not have any physical problems. He stated that the last time he changed her diaper he saw "droplets of blood and urine" in her diaper. He denied that he put his pinky finger into her vagina. Duncan said that he felt psychologically intimidated when he gave his statements to the police.
The jury convicted Duncan of first-degree sexual abuse of a minor, and Duncan now appeals.
AS 11.41.434(a)(1).
Duncan argues that the trial court should have instructed the jury that "sexual penetration does not include acts 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." Duncan did not request this instruction at trial, so he must show plain error on appeal. A plain error is one that is "so wrong that any competent judge or attorney should have recognized the error and corrected it."
AS 11.81.900(b)(59)(B)(i).
Alaska Criminal Rule 30(a) provides in pertinent part: "No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto. . . ."
Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001).
A court is required to give a jury instruction on a statutory defense when there is "some evidence" supporting the instruction. But there does not appear to be any evidence in this record related to the medical treatment defense.
Hamilton v. State, 59 P.3d 760, 770 (Alaska App. 2002).
Duncan did not present any evidence that he sexually penetrated B.T. "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." Duncan did not present any evidence that he put his finger in B.T.'s vagina while attempting to administer some sort of treatment to promote her health. And Duncan's statement to the police did not suggest that he was trying to administer any sort of treatment.
AS 11.81.900(b)(59)(B)(i).
Duncan now argues that he was administering beneficial treatment when he changed B.T.'s diaper. But there was no evidence that Duncan accidently penetrated B.T.'s vagina with his finger or lacerated her vagina with his fingernail when he changed her diaper. A pediatric nurse testified that it was very unlikely that B.T.'s injuries were caused by a normal diaper change. And Duncan testified that he did not penetrate B.T.'s vagina with his finger when he was changing her diaper.
We accordingly conclude that Duncan has not shown that it was obvious that the trial court should have instructed the jury on the medical treatment defense.
We AFFIRM the superior court's judgment.