Opinion No. 22
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Lansing L. Haynes, District
of conviction for two counts of sexual abuse of a vulnerable
adult and one count of forcible sexual penetration by a
foreign object, affirmed.
D. Fredericksen, State Appellate Public Defender; Erik R.
Lehtinen, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
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.
AND PROCEDURAL BACKGROUND
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.
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.
Vulnerable Adult Due to ...