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State v. Smalley

Supreme Court of Idaho

February 26, 2019

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

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

         The judgment of conviction by the district court is affirmed.

          Erik D. Fredericksen, Idaho State Public Defender, Boise, attorney for Appellant. Erik R. Lehtinen argued.

          Hon. Lawrence Wasden, Idaho Attorney General, Boise, attorney for Respondent. Kenneth K. Jorgensen argued.

          BEVAN, JUSTICE.

         I. Nature of the Case

         Following a jury trial, Phillip Smalley was convicted of two counts of sexual abuse of a vulnerable adult and one count of sexual penetration by a foreign object. On appeal, Smalley asserted two claims of error. First, he alleged there was insufficient evidence to sustain his convictions for sexual abuse of a vulnerable adult because to qualify as a "vulnerable adult," the victim must have mental deficits, not just physical infirmity. Second, he argued that the trial court erred in admitting the victim's preliminary hearing video deposition instead of live in-court testimony, because she was not "unavailable" as required by the Idaho Rules of Evidence. The Court of Appeals upheld Smalley's convictions. This Court granted his petition for review of the trial court's decision and we affirm the district court.

         II. Factual and Procedural Background

         Phillip 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. F.B. was mentally alert, but she could not walk, roll-over in bed, or stand, and required assistance for all activities of daily living. She could communicate, but needed special aids to hear and spoke in a very soft voice. Because of severe rheumatoid arthritis, F.B.'s hands were deformed, so although she could feed herself, she required a large-handled spoon and finely chopped or pureed food due to difficulty swallowing. F.B. was incontinent and required the use of adult diapers or briefs.

         After F.B. alleged that she had been sexually assaulted overnight, she was transported by ambulance to the hospital for a sexual assault examination. During the examination, F.B. mentioned to the nurse that a similar sexual assault had occurred a couple of weeks before. The State charged Smalley, who was F.B.'s caretaker during the shifts in question, with two counts of sexual abuse of a vulnerable adult and one count of sexual penetration by a foreign object. It alleged that Smalley committed the sexual assault of a vulnerable adult by engaging in manual-genital contact with F.B., a vulnerable adult, and by forcibly causing the penetration of F.B.'s genital and/or anal opening against her will.

         The State moved to take F.B.'s testimony for the preliminary hearing by video deposition because she was "physically unable to attend court proceedings, including the preliminary hearing" due to her advanced age and bed-ridden status in a hospice facility. The magistrate court granted the motion and the victim's video testimony was taken at the assisted living facility with Smalley and his counsel in attendance. The video testimony was admitted at the preliminary hearing. The State then moved to admit the deposition video and transcript in lieu of live testimony at the trial. After a hearing on the motion, the trial court found F.B. was unavailable to testify and portions of her deposition video and transcripts were admitted at the trial, despite Smalley's objections that the video constituted hearsay according to the Idaho Rules of Evidence and violated his rights under the Sixth Amendment's Confrontation Clause.

         Smalley was convicted by a jury of two counts of sexual abuse of a vulnerable adult and one count of forcible sexual penetration by a foreign object. The Court of Appeals upheld his convictions and this Court granted Smalley's petition for review.

         III. Issues on Appeal

         1. Was F.B. a "vulnerable adult" under Idaho Code section 18-1505(4)(e)?

         2. Did the trial court err in admitting F.B.'s deposition in lieu of her live testimony in violation of the Confrontation Clause and the Idaho Rules of Evidence?

         IV. ...


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