SLIP OPINIONS
 
OF THE
 
APPELLATE DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2013)

ASOVALE MASUI,
Appellant,
 
v.
 
AMERICAN SAMOA GOVERNMENT,
Appellee.
 
The High Court of American Samoa
Appellate Division
 
AP No. 19-10
 
January 16, 2013
 
 [1] Any errors or irregularities at trial which does not affect substantial rights shall be disregarded. 
 
[2] There may be some constitutional errors in a particular case which are so unimportant and insignificant that they may be deemed harmless and do not require the automatic reversal of the conviction. 
 
[3] Constitutional error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. 
 
[4] Where the error involves a non-constitutional matter, such error is deemed harmless unless it is more probable than not that the error did not materially affect the verdict. 
 
[5] The Territory‘s "rape-shield" rule generally provides that in a criminal case in which the defendant is accused of rape or assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible. 
 
[6] The purpose of rape-shield statutes is to protect rape victims from the embarrassing disclosure of the details of their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting collateral and irrelevant matters. 
 
[7] Evidence of a victim‘s past sexual behavior may be admissible if it is evidence of past sexual behavior with persons other than the accused, and it is offered on the issue of whether or not the accused was the source of the semen or injury, but only upon a determination that the probative value of such evidence outweighs the danger of unfair prejudice. 
 
[8] Generally, hearsay is not admissible into evidence, but there are exceptions to this rule. 
 
[9] Statements made for medical treatment and describing medical history, past or present symptoms, or the inception or general character of the cause of symptoms are admissible. 
 
[10] Reports of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, condition, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) was kept in the course of regularly conducted activity; and (d) was made as the regular practice of that activity. 
 
Before RICHMOND, Associate Justice; WARD, Associate Justice; PATEA, Acting Associate Justice; SATELE, Associate Judge; and MUASAU, Associate Judge. 

Counsel: For Appellant, Assistant Public Defender Leslie Cardin 
For Appellee, Assistant Attorney General Marian M. Rapoza 
 
OPINION AND ORDER
 
Background
 
On November 12, 2009, Appellant Asovale Masui ("Masui") was charged with multiple counts of rape, incest, and assault in the third degree. It was alleged that Masui had sexual intercourse with his sixteen-year old daughter ("Complainant") on multiple occasions during the period of April 2008 through August 2008. 
 
Prior to trial, Masui brought a motion pursuant to T.C.R. Evid. 412 to introduce evidence of five prior instances of sexual activity between Complainant and four individuals other than Masui during the period of June 2006 through August 2008. [**2**] Masui asserted that this evidence was to be used to rebut the anticipated testimony of Dr. John Ah-Ching, an obstetrician-gynecologist at LBJ hospital who examined Complainant, that Complainant had experienced sexual intercourse prior to his examination of her. Masui reasoned that such evidence would show that Complainant had engaged in sexual intercourse with persons other than Masui. Masui proffered the testimony of one individual who would testify that he had observed Complainant engage in intercourse on multiple occasions with different partners prior to her examination by Dr. Ah-Ching. The trial court refused to allow this testimony. 
 
Additionally, shortly before trial, Larry Samatua ("Samatua") was convicted of the rape of Complainant in an unrelated trial. During Samatua‘s trial, Dr. Ah-Ching testified, identically to the present trial, that he had performed a physical examination of Complainant, and the condition of Complainant‘s hymen was consistent with prior sexual intercourse. Prior to trial in the instant case, the prosecution filed a motion asking the court to take judicial notice of Samatua‘s rape conviction and named Samatua on its witness list. Masui objected to any reference to Samatua at trial because Samatua was related (through marriage) to Masui and had a negative reputation following his conviction. The court barred any reference to Samatua at trial. 
 
[**3**] At trial, Complainant testified that Masui is her biological father. She testified that in April 2008, after a church youth gathering, Masui grabbed her by the hair, dragged her to her grandmother‘s house and spanked her with an extension cord. Masui then took her into a closet, wrapped the extension cord around her neck, and threatened to hang her. He took her to a bedroom, removed her clothes, and forced his penis inside her vagina. Complainant testified about another incident where she was at Masui‘s home when he took her to the bedroom, pulled out a gun, and forced sexual intercourse upon her. Complainant then testified that she went to live with Masui in the summer of 2008 because her grandmother (with whom she lived) left the island for health reasons. She testified that she was forced to have sexual intercourse with Masui everyday during this time. She was not allowed to leave Masui‘s home; however, she was able to leave his house occasionally during these months. 
 
Dr. John Ah-Ching testified at trial that he performed a sexual assault examination on Complainant on August 28, 2008, and contemporaneously documented his findings in a report that he submitted to Social Services. He testified that Complainant‘s vaginal entrance looked normal but observed a discontinuation in the hymen ring. Dr. Ah-Ching concluded that Complainant had had previous sexual intercourse. Dr. Ah-Ching also testified that no bleeding or fresh injuries were seen at [**4**] the time of this examination. Rather, he found an old tear and admitted that there are many causes of hymenal discontinuation. He admitted that he did not know what caused the hymenal discontinuation or when the discontinuation occurred. At the conclusion of Dr. Ah-Ching‘s testimony, the report he had filled out during the examination, entitled "Suspected Child Abuse or Neglect Form," was admitted into evidence over Masui‘s objections. Masui was given the opportunity to redact portions of the form, but declined. 

The jury convicted Masui of four counts of rape, four counts of incest, and one count of assault in the third degree. On September 16, 2010, Masui was sentenced to a prison term of 60 years. 
 
Masui‘s motion for acquittal based on insufficient evidence was denied on November 15, 2010, and Masui‘s motion for a new trial was denied on November 16, 2010. Masui timely filed his notice of appeal on November 23, 2010. We heard oral arguments on this matter on October 25, 2012. 
 
Standard of Review
 
[1][2][3][4] "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." T.C.R.Cr.P. 52(a). This rule preserves convictions from being set aside for small errors or defects, which have little chance, if any, in changing the result of the trial. See, generally, Chapman v. [**5**] California, 386 U.S. 18, 22 (1967). "There may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless, not requiring the automatic reversal of the conviction." Id. Constitutional error is harmless only when it looks "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 23-24. ―Review of harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also the most perceptive reflections as to the probabilities of the effect of error on a reasonable trier of fact.‖ United States v. Bishop, 264 F.3d 919, 927 (9th Cir. 2001). Where the error involves a non-constitutional matter, such error is deemed harmless unless "it is more probable than not that the error did not materially affect the verdict." See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002). 

Discussion
 
Masui presents the following issues on appeal: (1) whether the trial court erred by refusing to permit Masui to use evidence of Complainant‘s past sexual behavior under T.C.R. Evid. 412; (2) whether the prosecutor deprived Masui of due process of law and a fair trial by presenting allegedly misleading and deceptive evidence to the jury; and (3) whether [**6**] the trial court erred by accepting the hospital form into evidence. 
 
I. Evidence of past sexual behavior 

Masui contends that the trial court‘s refusal to allow him to present evidence of Complainant‘s past sexual activity was erroneous, prejudicial, and denied him a fair trial. Masui argues that Dr. Ah-Ching was allowed to testify about his examination of Complainant and opine that Complainant had had sexual intercourse in the past. Masui concludes that this clearly left the jury with the mistaken impression that the only person Complainant had sexual intercourse with was Masui, when in fact he could produce evidence that Complainant had engaged in sexual intercourse on multiple prior occasions with four different individuals. 
 
[5][6][7] The Territory‘s "rape-shield" rule generally provides that in a criminal case in which the defendant is accused of rape or assault with intent to commit rape, "reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible." T.C.R.Evid. 412(a). The purpose of rape-shield statutes is to protect rape victims from the embarrassing disclosure of the details of their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting collateral and irrelevant matters. United States v. Torres, 937 F.2d 1469, 1472 (9th Cir. 1991). [**7**] However, evidence of a victim‘s sexual behavior other than opinion or reputation evidence is admissible where constitutionally required. T.C.R.Evid. 412(b)(1). Evidence of a victim‘s past sexual behavior may also be admissible if it is evidence of past sexual behavior with persons other than the accused, and it is offered on the issue of whether or not the accused was the source of the semen or injury, but only upon a determination that the probative value of such evidence outweighs the danger of unfair prejudice. T.C.R.Evid. 412(b)(2)(A), (c)(3); Torres, 937 F.2d at 1473. 
 
In the instant case, the record is sparse and inconclusive regarding what constitutes an "injury" suffered by Complainant. We do not reach, and therefore forego any discussion on, the issue of "injury", and instead will focus our analysis on whether the probative value of Masui‘s proposed evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. See T.C.R.Evid. 403. 
 
Here, Masui proposed to introduce testimony by one individual who would testify as to five alleged instances of sexual intercourse between Complainant and four other individuals other than Masui during the period of June 2006 through early August 2008. Masui claims that this evidence was necessary to challenge Dr. Ah-Ching‘s testimony regarding tears [**8**] he found in Complainant‘s hymen because the evidence of Complainant‘s past sexual behavior provided an alternative explanation for the source of said "injury". 
 
In support, Masui cites to three federal cases. These cases, Tague v. Richards, 3 F.3d 1133 (7th Cir. 1993), United States v. Begay, 937 F.2d 515 (10th Cir. 1999), and Lajoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), involve situations where the defendants were accused of sexually abusing victims of the ages of eleven, eight, and seven, respectively. In all these cases, treating physicians testified that a physical examination of the victims demonstrated that the victims all had some sort of genital injury and had engaged in sexual activity in the past. And in all these cases, the reviewing courts held that it was error for the trial court to bar evidence of prior sexual abuse suffered by the victims because the jury was left to infer that the defendants were the only possible source of the injuries. 
 
The three cases that Masui relies on are distinguishable from the case at bar. Those cases involved seven, eight, and eleven-year-old victims. The evidence of prior sexual history in those cases was allowed because of the victims‘ young ages and their susceptibility to other influences. In fact, the Tague court noted that the prosecution would not have introduced physical evidence indicating that the victim was not a virgin if [**9**] the victim was a thirty-five-year old woman as opposed to an eleven-year-old girl. Tague, 3 F.3d at 1138-39. Further, the probative value of the evidence of prior sexual activity outweighed the prejudicial effect of any embarrassment or public denigration the victims‘ may have potentially experienced. The young girls in the three cases were victims of prior sexual abuse; they were not sexually-active mature minors. Here, Complainant was a sexually-mature minor. The testimony of the proffered witness concerning five separate instances of sexual intercourse by Complainant would only serve to suggest that Complainant is sexually promiscuous, and would therefore unduly prejudice the jury. We hold that the trial court did not err in refusing to allow evidence of Complainant‘s past sexual behavior. 
 
Moreover, at oral arguments, counsel for Masui undercut their own argument by conceding that they did not take issue with the trial court barring the proffered testimony ("I don‘t really take any issue with the court‘s ruling as to that particular point. There was discussion of both Dr. Ah Ching‘s testimony and the situation involving another witness, and I don‘t think the – I don‘t think the appellant is strongly urging that second part." (App. Tr., p. 39, Oct. 25, 2012)). Counsel instead argued that the trial court‘s Rule 412 ruling prevented the defense from cross-examining Dr. Ah-Ching regarding the [**10**] prior rape by Samatua as a past sexual activity which was a possible alternate source of Complainant‘s "injuries". 
 
Masui misinterprets the trial court‘s Rule 412 ruling. The trial court‘s Rule 412 ruling addressed the proffer prior to trial of the testimony of a sole individual concerning five alleged instances of sexual intercourse by Complainant. The court‘s ruling did not address what Dr. Ah-Ching could have testified to regarding the prior rape of Complainant by Samatua. In fact, at trial, it was Masui‘s defense counsel who filed a motion to exclude any reference to Samatua. Defense counsel also objected to the prosecution‘s motion to admit Samatua‘s rape conviction. 
 
Further, during oral arguments, counsel for Masui admitted that the defense could have cross-examined Dr. Ah-Ching regarding his previous testimony in the prior Samatua rape case involving the same victim ("it would have been entirely possible to cross-examine the Doctor about the fact that he had testified in a previous case involving the same complainant without necessarily getting into the identity of who that person was and what that case was." (App. Tr., p. 35, Oct. 25, 2012)). Trial Counsel chose not to do so. If he misunderstood the trial court‘s Rule 412 ruling, or if there was any confusion regarding the court‘s ruling, it was incumbent upon defense counsel to receive clarification from the trial court concerning its [**11**] ruling. The fact remains that the trial court‘s ruling addressed only what was presented at the pre-trial hearing: a single witness testifying regarding five alleged instances of sexual intercourse by Complainant. Accordingly, the trial court did not err in disallowing such testimony, and Masui‘s first claim must be rejected. 
 
II. Evidence presented to the jury 

Masui next contends that the prosecution used misleading and deceptive evidence during the trial. Specifically, Masui claims that Dr. Ah-Ching testified to the same exact testimony during the present case as he did during Samatua‘s rape trial. Masui states that the prosecution knew this evidence was misleading because the jury was given the impression that Masui was the only possible cause of Complainant‘s hymen stretching when, in fact, Samatua had been already convicted for a prior rape of Complainant. 
 
During oral arguments, counsel for Masui conceded that this issue was subsumed by the first issue. (App. Tr., p. 39-40, Oct. 25, 2012)). In any event, our review of the record shows that the trial court‘s Rule 412 ruling did not prevent the defense from cross-examining Dr. Ah-Ching about his prior testimony in the Samatua trial. The trial court merely barred the testimony concerning the alleged five witnessed occasions of sexual intercourse by Complainant because this was the only [**12**] testimony proffered by Masui during the pre-trial hearing. As previously discussed in the foregoing section, if defense counsel was confused regarding the trial court‘s ruling, then it was defense counsel‘s obligation to seek clarification of the ruling. We therefore hold that Masui‘s claim that misleading evidence was presented to the jury is without merit. 

III. Evidence of the hospital form 

Finally, Masui contends that the court erred by admitting the "Suspected Child Abuse or Neglect Form," which Dr. Ah-Ching completed, into evidence. Masui states that the form was hearsay, and it was not admissible under the hearsay exception contained in Rule 803(4), which allows for the admission of statements for the purpose of medical treatment and diagnosis. Masui alleges that the form contained no such statements because the only statements made by Complainant on the form are biographical, such as her name and age. Masui argues that the form does not contain observations and notes made by Dr. Ah-Ching of his examination, but, rather, amounts to the written report of an expert witness that should not have been admitted into evidence. 
 
[8][9][10] Generally, hearsay is not admissible into evidence. T.C.R.Evid. 802. However, there are several exceptions to the hearsay rule. Statements made for medical treatment and describing medical history, past or present symptoms, or the [**13**] inception or general character of the cause of symptoms are admissible. T.C.R.Evid. 803(4). Additionally, reports of acts, events, conditions, opinions or diagnoses may be admitted as evidence of those matters if the writing: (a) was made at or near the time of the acts, events, condition, opinions, or diagnoses recorded; (b) was made by, or from information transmitted by, a person with knowledge; (c) was kept in the course of regularly conducted activity; and (d) was made as the regular practice of that activity. T.C.R.Evid. 803(6); Amerika Samoa Bank v. Groves, 24 A.S.R. 2d 77, 80 (Trial Div. 1993). 
 
The hearsay exception applies to the hospital form at issue here. The form explicitly states that the explanation of Complainant‘s condition was given to Dr. Ah-Ching by Complainant herself. Complainant‘s explanation of her condition obviously falls within the Rule 803(4) hearsay exception. Moreover, while the biographical information that Masui points to might not contain information that is explicitly related to medical treatment, it was still helpful to Dr. Ah-Ching in formulating a treatment plan, especially considering the fact that the Complainant‘s condition was related to her father‘s sexual abuse of her. 
 
Furthermore, the report satisfies the requirements of Rule 803(6). The report contained information documenting Complainant‘s physical condition and Dr. Ah-Ching‘s diagnosis [**14**] and findings. Dr. Ah-Ching testified that it was filled out contemporaneously to the time of his examination of Complainant. He also testified that it was the regular practice at the hospital to document findings on the form during a sexual assault examination. Masui argues that Rule 803(6) does not apply because the report is actually created by Child Protection Services for their own use. This argument ignores the fact that the report was "created" by Dr. Ah-Ching at the hospital in the hospital‘s regular business activity in the sense that he filled out all of the information in it based on his observations. Masui does not explain why it should matter if the form itself was actually provided by Child Protection Services for doctors to fill out in the regular course of their hospital activities. Masui also states that Rule 803(6) only refers to commercial or other business records. However, nowhere in its language does Rule 803(6) limit itself to records of purely commercial activities. In fact, Rule 803(6) states that "business" includes a "business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." T.C.R.Evid. 803(6). A hospital would certainly qualify as a business under this definition. 
 
After reviewing the record below, we hold that it was not error for the trial court to admit the form in question. It is also worth noting that the trial court gave defense counsel the [**15**] opportunity to redact those portions of the form that he found objectionable, but counsel declined to do so. (Trial Tr., p. 37, June 15, 2010). Counsel‘s failure to redact the hospital form when given the opportunity constitutes a waiver of Masui‘s current challenge to the form. 
 
Order
 
For the reasons stated above, we affirm Asovale Masui‘s convictions. It is so ordered.