State v. Boyd, Docket No. 39085

• Court: Court of Appeals of Idaho
• Writing for the Court: PER CURIAM
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. ROBERT DALE BOYD, Defendant-Appellant.
• Docket Number: 2012 Unpublished Opinion No. 578,Docket No. 39085
• Decision Date: 06 August 2012

STATE OF IDAHO, Plaintiff-Respondent,
v.
ROBERT DALE BOYD, Defendant-Appellant.

Docket No. 39085
2012 Unpublished Opinion No. 578

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: August 6, 2012

Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

Judgment of conviction and concurrent unified sentences of thirty years with seven years determinate for lewd conduct with a minor under sixteen, and fifteen years with five years determinate for sexual abuse of a minor under the age of sixteen, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Sallaz & Gatewood, PLLC; David J. Smethers, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney General, Boise, for respondent.

Before GRATTON, Chief Judge; LANSING, Judge; and GUTIERREZ, Judge

PER CURIAM

Robert Dale Boyd was convicted of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and sexual abuse of a minor under the age of sixteen, I.C. § 18-1506, for molestation of his young granddaughters. The district court sentenced Boyd to concurrent unified sentences of thirty years with seven years determinate for lewd conduct and fifteen years with five years determinate for sexual abuse. Boyd filed an Idaho Criminal Rule 35 motion, which the district court denied. Boyd appeals.

Page 2

Boyd first asserts that the district court erred by considering unreliable hearsay contained in the presentence investigation report (PSI) to determine his sentence. The rules of evidence are not applicable to a PSI, and evidence that would otherwise be inadmissible at trial may be considered in the trial court's discretion. State v. Carey, 152 Idaho 720, 721, 274 P.3d 21, 22 (Ct. App. 2012); State v. Rodriguez, 132 Idaho 261, 263, 971 P.2d 327, 329 (Ct. App. 1998); Fodge v. State, 125 Idaho 882, 885, 876 P.2d 164, 167 (Ct. App. 1994). Hearsay information believed to be reliable may be set forth in a presentence report, so long as the defendant is afforded an opportunity to present favorable evidence and to explain or rebut the adverse information. However, hearsay information must be disregarded if there is no reasonable basis to deem it reliable, as where the information is simply conjecture. See Idaho Criminal Rule 32(e)(1); Rodriguez, 132 Idaho at 263, 971 P.2d at 329; State v. Viehweg, 127 Idaho 87, 92, 896 P.2d 995, 1000 (Ct. App. 1995); Fodge, 125 Idaho at 886, 876 P.2d at 168; Cunningham v. State, 117 Idaho 428, 431, 788 P.2d 243, 246 (Ct. App. 1990); State v. Eubank, 114 Idaho 635, 637, 759 P.2d 926, 928 (Ct. App. 1988).

According to the PSI report, Boyd's stepsister, A.S., told the presentence investigator that Boyd sexually molested her "hundreds of times" when she was a child. Boyd objected to this...