State v. Smalley, 164 Idaho 780

Defendant Phillip Smalley was an overnight caregiver at an assisted‑living facility; the victim, F.B., was a 102‑year‑old, bedridden resident who required assistance for all activities of daily living and had severe hearing and dexterity impairments.
F.B. reported sexual assaults occurring on two occasions; Smalley was charged with two counts of sexual abuse of a vulnerable adult and one count of sexual penetration by a foreign object.
The magistrate took F.B.’s preliminary hearing testimony by video deposition at her facility because she could not attend court; Smalley and counsel attended and cross‑examined her there.
At trial the State moved to admit the video deposition in lieu of live testimony; the trial court found F.B. unavailable and admitted portions of the video and transcript over Smalley’s hearsay and Confrontation Clause objections.
A jury convicted Smalley on all counts; the Court of Appeals affirmed, and the Idaho Supreme Court granted review to decide (1) whether F.B. qualified as a “vulnerable adult” under Idaho Code § 18‑1505(4)(e), and (2) whether admitting the deposition violated the Confrontation Clause or evidentiary rules.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Smalley)	Held
1. Whether F.B. was a “vulnerable adult” under Idaho Code § 18‑1505(4)(e)	Statute’s plain language covers persons unable to protect themselves due to physical impairments that affect their capacity to implement decisions; F.B.’s physical inability to implement decisions satisfies the statutory definition	"Vulnerable adult" requires mental impairment (lack of mental capacity); physical infirmity alone is insufficient	Court held F.B. met the statutory definition based on physical impairments alone; statute’s “or” and “physical” must be given effect
2. Whether admitting preliminary‑hearing video testimony violated the Confrontation Clause / Rule 804 because F.B. was not “unavailable”	The State made a good‑faith showing of unavailability (physicians’ letters, nurse testimony, video showing immobility); deposition testimony was testimonial but prior cross‑examination occurred	Unavailability requires an unqualified inability to attend trial; at most testimony would be inconvenient but possible with accommodations	Court affirmed: trial court did not abuse discretion; F.B. was unavailable and the State reasonably attempted to produce her; Smalley had prior opportunity to cross‑examine

State v. Knutsen, 158 Idaho 199 (2015) (discusses ability to consent and scope of vulnerable‑adult protection)
State v. Anderson, 162 Idaho 610 (2017) (evidentiary standard for witness unavailability and admission of preliminary‑hearing testimony)
Davis v. Washington, 547 U.S. 813 (2006) (testimonial statements inadmissible unless witness unavailable and defendant had prior opportunity for cross‑examination)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial statements absent unavailability and prior cross‑examination)
Ohio v. Roberts, 448 U.S. 56 (1980) (prosecution must make good‑faith efforts to obtain witness in Confrontation Clause contexts)
Burns v. Clusen, 798 F.2d 931 (7th Cir. 1986) (severity of infirmity requires court to assess what tasks a witness can perform when determining unavailability)