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State v. Smalley

Court of Appeals of Idaho

May 4, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
PHILLIP R. SMALLEY, Defendant-Appellant.

         2018 Opinion No. 22

          Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Lansing L. Haynes, District Judge.

         Judgment of conviction for two counts of sexual abuse of a vulnerable adult and one count of forcible sexual penetration by a foreign object, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

          LORELLO, JUDGE.

         Phillip R. Smalley appeals from his judgment of conviction for two counts of sexual abuse of a vulnerable adult and one count of forcible sexual penetration by a foreign object. Smalley contends that the State failed to meet its burden of proving that the victim was a vulnerable adult as defined in I.C. § 18-1505(4)(e) or that the victim was unavailable under both the Confrontation Clause and the Idaho Rules of Evidence. For the reasons set forth below, we affirm.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         Smalley was employed at an assisted living facility and worked alone as the overnight caregiver. The victim, F.B., was a 102-year-old patient at the facility who had arthritis, wore hearing aids, and spoke with a low voice. Her hands were deformed from the arthritis, she could only eat with a large-handled spoon, and she had difficulty swallowing. F.B. could not walk, sit up, stand, dress herself, shower, or roll over without assistance. She could only move between her chair and wheelchair with assistance and was incontinent. F.B. was, however, mentally alert and could communicate with those who interacted with her.

         After F.B. alleged that Smalley sexually assaulted her overnight, she was transported by ambulance to the hospital for a sexual assault examination. F.B. told the nurse that there had been a similar sexual assault by Smalley a few weeks prior to the examination. The State charged Smalley with two counts of sexual abuse of a vulnerable adult and one count of sexual penetration by a foreign object. The State alleged that Smalley committed sexual abuse of a vulnerable adult by engaging in manual-genital contact with F.B., a vulnerable adult, and by forcibly penetrating F.B.'s genital and/or anal opening against her will. The State moved to take F.B.'s testimony by video deposition on the basis that F.B. was physically unable to attend court proceedings due to her age and because she was bedridden and under hospice care. The State supported its motion with a letter from F.B.'s physician who stated that F.B. could not tolerate a court appearance or the long drive to court. The State asserted that preservation of F.B.'s testimony was necessary to prevent a failure of justice. At the hearing on the State's motion, the prosecutor also noted that another alleged victim had died since the State filed its original complaint. The district court granted the motion, finding that, due to F.B.'s age and physical infirmity, F.B. was unable to attend court proceedings. F.B.'s deposition was subsequently taken at the assisted living facility where she lived. Smalley was represented by counsel at the deposition, which was videotaped and transcribed by a court reporter. F.B.'s deposition was admitted at the preliminary hearing in lieu of live testimony from F.B. The State also moved to admit F.B.'s deposition video and transcript in lieu of her live testimony at the trial, arguing that F.B. was unavailable to testify due to her physical conditions that were unlikely to improve by the start of the trial. Smalley objected to the motion, arguing that the deposition testimony was hearsay and violated his rights under the Sixth Amendment's Confrontation Clause and that F.B. was not unavailable for purposes of either the Confrontation Clause or the Idaho Rules of Evidence hearsay exceptions. After a hearing, the district court found F.B. was unavailable for trial and granted the State's motion. Portions of F.B.'s deposition video and transcript were therefore admitted at trial. A jury found Smalley guilty of all three counts charged by the State. Smalley appeals.

         II.

         ANALYSIS

         A. Vulnerable Adult Due to ...


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