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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49037

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

GEORGE FERNANDO CUENCA,

 Defendant-Appellant.

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Boise, December 2022 Term

Opinion Filed: February 8, 2023

Melanie Gagnepain, Clerk

Appeal from the District Court of the Third Judicial District of the State of Idaho, 

Canyon County. Davis F. VanderVelde, District Judge.

The judgment of conviction is affirmed.

Eric D. Fredericksen, State Public Defender, Boise, for Appellant. Ben McGreevy 

argued.

Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Kenneth K.

Jorgensen argued.

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BRODY, Justice.

This appeal concerns the Sixth Amendment’s Confrontation Clause. Prior to voir dire in 

George Fernando Cuenca’s trial for aggravated battery, taking place in the midst of the COVID19 pandemic, the district court ordered that everyone in the courtroom would wear masks—

including witnesses. Cuenca objected that the jury would be unable to assess the witnesses’ 

facial expressions and demeanor during their testimony, which would make it difficult for the 

jury to judge the credibility of the witnesses. The district court overruled the objection. The trial 

proceeded, and the jury found Cuenca guilty. Cuenca appeals, claiming his confrontation right 

was violated by the district court’s mask order. For the reasons discussed below, we conclude the 

district court’s order did not violate Cuenca’s confrontation right, and affirm his judgment of 

conviction.
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I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2020, after a late-night altercation, Cuenca stabbed his roommate. Roughly one 

month later, Cuenca was charged with one count of felony aggravated battery. The case 

eventually proceeded to trial in April 2021. Prior to voir dire, the district court ordered that 

everyone in the courtroom, including witnesses, would wear masks during the in-person trial.

The district court asked if there were any objections and Cuenca objected, contending that 

requiring witnesses to wear medical masks while testifying would impair the jury’s ability to 

assess demeanor and “judge credibility.” The district court overruled Cuenca’s objection based 

on this Court’s order for jury trial procedures during the COVID-19 pandemic. The district court 

did not reference a specific date for the Idaho Supreme Court order it was enforcing, but the 

parties agree that the relevant order in effect at that time was issued on October 8, 2020. That 

order prescribed, among other things, that “[a]ll persons in the courtroom must wear a mask 

approved by the assigned judge at all times, unless an exception is granted by the assigned 

judge.”

At trial, Cuenca exercised his right not to testify; however, whether Cuenca’s stabbing of 

the roommate was intentional—or in self-defense—was disputed. The prosecution, through the 

roommate’s testimony, contended that Cuenca intentionally stabbed the roommate with a knife.

Two other State witnesses testified at trial: first, a detective testified that he found the “12-inch 

military-style knife” in a laundry hamper in Cuenca’s room and that Cuenca did not have any 

injuries the night of the altercation; and second, a police officer testified that Cuenca was the 

individual he had interviewed the night of the altercation. The jury unanimously found Cuenca 

guilty of aggravated battery. At sentencing, the district court imposed a unified sentence of three 

years with one year fixed, suspended the sentence, and placed Cuenca on probation for five 

years.

Cuenca asserts that the district court’s order requiring witnesses to wear masks while 

testifying violated his Sixth Amendment right to face-to-face confrontation with his accusers at 

trial. Cuenca does not challenge this Court’s order related to jury trial procedures during the 

COVID-19 pandemic issued on October 8, 2020.
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II. STANDARD OF REVIEW

“Whether admission of evidence violates a defendant’s right to confront adverse 

witnesses under the Sixth Amendment’s Confrontation Clause is a question of law over which 

this Court exercises free review.” State v. Clapp, 170 Idaho 314, __, 510 P.3d 667, 673 (2022) 

(quoting State v. Stanfield, 158 Idaho 327, 331, 347 P.3d 175, 179 (2015)). 

III. ANALYSIS

A. Cuenca preserved his Confrontation Clause challenge when he objected before 

trial because the basis for his objection is apparent from its context.

As a preliminary matter, the State argues that this Court should not reach the merits of

Cuenca’s challenge because it was not preserved below. The State contends that because Cuenca 

did not invoke the Confrontation Clause or the Sixth Amendment when objecting to the district 

court’s mask order, he did not preserve the issue or take a position on it for purposes of appellate 

review. In reply, Cuenca acknowledges that his objection did not specifically cite the 

Confrontation Clause. Nevertheless, Cuenca argues that the preservation requirement has been

satisfied because the basis of his objection was apparent from its context. For the reasons below, 

we conclude Cuenca is correct.

“[T]his Court will not consider issues raised for the first time on appeal.” Siercke v. 

Siercke, 167 Idaho 709, 715, 476 P.3d 376, 382 (2020). “A party must raise both the issue and 

their position on that issue before the trial court for this Court to review it.” Id. When raising the 

issue, “either the specific ground for the objection must be clearly stated, or the basis of the 

objection must be apparent from the context.” Lingnaw v. Lumpkin, 167 Idaho 600, 609, 474 

P.3d 274, 283 (2020) (quoting Hansen v. Roberts, 154 Idaho 469, 476, 299 P.3d 781, 788 

(2021)). So long as these requirements are met, “the specific legal authorities used to support the 

position may evolve.” State v. Hoskins, 165 Idaho 217, 222, 443 P.3d 231, 236 (2019); see State 

v. Gonzalez, 165 Idaho 65, 99, 439 P.3d 1267, 1271 (2019) (“A groomed horse is expected on 

appeal, but a different horse is forbidden.”).

In this case, although Cuenca did not specifically invoke the Confrontation Clause as the 

authority supporting his position, it is apparent from the context that he was objecting to the 

mask order as violative of his constitutional right to a physical face-to-face confrontation with 

his accusers at trial: 
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THE COURT: All right. The other thing is masks are going to be worn at all 

times, even by witnesses. I’m going to enforce that mandate even though there is 

some leeway given. The only time that I would give leeway is, for instance, where 

we’ve had people with ASL where they need to read lips. Then I would consider 

an alternative. But generally speaking, I am going to decline to allow a witness to 

remove their mask. If you do have objection to that, just please make it once. 

We’ll make it known that that’s a standing objection.

[DEFENSE COUNSEL]: Judge, I’ll just go ahead and lodge that objection now. I 

think it is one of the things that people consider quite heavily when they are

evaluating another person’s credibility is their facial expressions, body language, 

things like that. And I think the mask hides that to a large enough degree that I 

think it makes it difficult sometimes for people to judge credibility. I understand 

under the current restrictions that we have, but I think I need to make that 

objection for the record.

THE COURT: And certainly, Mr. Grove. That’s why I wanted to give each of you

that opportunity. I do understand the objection. I am going to overrule the

objection, Mr. Grove. I do think that given the Supreme Court order that 

requiring the witnesses to wear a mask is appropriate. And I also do think there 

are other factors that a jury can consider, including that we’re used to seeing

people in masks at this point, as we’ve done so for over a year. And I will make 

note that that is a standing objection, Mr. Grove.

[DEFENSE COUNSEL]: Thank you, Judge.

(Emphasis and alterations added.)

Based on the context of this exchange, Cuenca’s objection points to an element of the 

Confrontation Clause as being violated by the district court’s mask order: That the witness is 

compelled “to stand face to face with the jury in order that they may look at him, and judge by 

his demeanor upon the stand and the manner in which he gives his testimony whether he is 

worthy of belief.” California v. Green, 399 U.S. 149, 158 (1970) (quoting Mattox v. United 

States, 156 U.S. 237, 242–243 (1895)). On appeal, Cuenca’s challenge is aimed at the district 

court’s mask order as violative of his confrontation right based on the jury’s impaired ability to 

assess “demeanor”—no different than his position taken below. Although Cuenca now cites to 

the Confrontation Clause and other authorities in support of his position, he is merely providing a 

“groomed horse” on appeal—not a new one. Thus, his challenge has been preserved for review.

B. The district court’s order that witnesses must wear medical masks while 

testifying in-person at Cuenca’s trial did not violate his right to confrontation. 

Cuenca argues that the district court’s mask order violated his confrontation right under 

the Sixth Amendment “because it prevented the jury from fully viewing and assessing the 
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demeanor of the witnesses.” Although the witnesses were physically present in the courtroom

while testifying, with nothing obstructing their view of Cuenca (and vice versa), Cuenca

maintains that his confrontation right was violated because covering the witnesses’ mouths and

noses prevented the jury from “effectively evaluating the credibility of witnesses” and removed 

the “face” from the “face-to-face confrontation.” From this, Cuenca argues that the balancing test

under Maryland v. Craig, 497 U.S. 836 (1990)—which applies in the absence of a physical, faceto-face confrontation at trial—was not satisfied because the testimony at his trial was unreliable, 

and the district court did not make sufficiently specific findings that “requiring the witnesses to 

wear a mask was necessary to further an important public policy[.]”

In response, the State maintains that “the ability to assess demeanor is not a necessary 

prerequisite” to satisfying the “physical, face-to-face” confrontation right, and even if it were, the 

balancing test under Craig—that applies in the “absence” of a “physical, face-to-face” 

confrontation—has been satisfied. Whether a mask that covers part of a witness’ face while

testifying in-court at trial amounts to an “absence” of a “physical, face-to-face” confrontation

begs the difficult question of what constitutes a “full” or sufficient “physical, face-to-face”

confrontation under the Confrontation Clause. However, we need not decide that question today. 

Assuming that masks on witnesses at Cuenca’s trial caused the “absence” of a “physical, face-toface” confrontation, the balancing test under Craig for such absences shows that Cuenca’s 

confrontation right was not violated by the district court’s mask order.

“The Confrontation Clause of the Sixth Amendment, made applicable to the States 

through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.’ ” Craig, 497 U.S. at 844 

(quoting U.S. CONST. amend. VI) (omission in original). The Clause provides two guarantees to 

criminal defendants: (1) “the right physically to face those who testify against him”; and (2) “the 

right to conduct cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017 (1988). In this case, only 

the first guarantee is at issue: Cuenca’s right “to face those who testify against him” at trial. This 

guarantee forms the “core of the values furthered by the Confrontation Clause.” Coy, 487 U.S. at 

1017 (quoting Green, 399 U.S. at 157). Nevertheless, a “face-to-face confrontation with 

witnesses appearing at trial” is not an “indispensable element of the Sixth Amendment’s 

guarantee of the right to confront one’s accusers.” Craig, 497 U.S. at 849 (emphasis added). 
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Instead, the Confrontation Clause “ ‘reflects a preference for face-to-face confrontation at 

trial,’ ” [quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980), abrogated on other grounds by 

Crawford v. Washington, 541 U.S. 36 (2004)], which “ ‘must occasionally give way to 

considerations of public policy and necessities of the case, [citing Mattox, 156 U.S. at 243].”

Craig, 497 U.S. at 849 (emphasis in original) (alterations added). Accordingly, under the Craig 

balancing test, a defendant’s “right to confront accusatory witnesses may be satisfied absent a 

physical, face-to-face confrontation at trial only where denial of such confrontation is necessary 

to further an important public policy and only where the reliability of the testimony is otherwise 

assured.” Craig, 497 U.S. at 850 (emphasis added). “Both requirements must be met.” Clapp, 

170 Idaho at __, 510 P.3d at 676 (citing Craig, 497 U.S. at 850).

Craig and Coy provide two examples of what constitutes the “absen[ce]” of a “physical, 

face-to-face confrontation at trial,” Craig, 497 U.S. at 850 (alteration added), sufficient to invoke

the Craig balancing test. In Craig, a “face-to-face” confrontation was absent when the accusing 

witnesses testified out of court—and there was a “one-way closed circuit television” procedure 

that prevented them from viewing the defendant while testifying. 497 U.S. at 840–42 (explaining 

that the witnesses, prosecutor, and defense counsel withdrew to a separate room—while the 

judge, jury, and defendant remained in the courtroom—and the witnesses’ testimony was 

recorded and displayed in the courtroom). In Coy, a “face-to-face” confrontation was absent 

when the accusing witnesses testified in court—but with a physical screen between them and the 

defendant so that they could avoid viewing the defendant while testifying. 487 U.S. at 1014–

1020. 

Read together, Craig and Coy show that there can be the absence of a “physical, face-toface confrontation at trial” sufficient to invoke the Craig test if either: (1) the accusing witness is 

physically out of court while testifying at trial, Craig, 497 U.S. at 840–42; or (2) the accusing 

witness is not in the “presence” of the defendant, e.g., a screen prevents the accusing witness 

from viewing the defendant while testifying, Coy, 487 U.S. at 1017. The Craig balancing test is

also appropriate when a witness is neither in court nor able to view the defendant while 

testifying. See, e.g., Clapp, 170 Idaho at __, 510 P.3d at 673 (telephonic testimony).

Some courts have gone beyond the examples in Craig and Coy and reasoned that in the

absence of a “normal” physical, face-to-face confrontation at trial, United States v. de Jesus-
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Casteneda, 705 F.3d 1117, 1119 (9th Cir. 2013), or if there is an “encroachment” upon a face-toface confrontation at trial, Romero v. State, 173 S.W.3d 502, 505 (Tex. Crim. App. 2005), the 

Craig balancing test is applied to determine whether a defendant’s confrontation right was 

violated. See, e.g., de Jesus-Casteneda, 705 F.3d at 1119–20 (applying Craig when a 

confidential informant testified in court, in view of the defendant, while wearing a fake mustache 

and wig to conceal his identity from the defendant and the Sinaloa Cartel); Romero, 173 S.W.3d 

at 503–06 (applying Craig when a witness testified in court, in view of the defendant, while 

wearing dark sunglasses, a baseball cap pulled down over his forehead, and a jacket with an 

upturned collar in a futile attempt to confer “a degree of anonymity” from a “dangerous” 

defendant who apparently already knew the witness’ name and address by the time of trial). 

Furthermore, in the context of face masks during the COVID-19 pandemic, some courts 

have applied the Craig balancing test to testimony from witnesses—otherwise in court and in full 

view of the defendant (and vice versa)—by reasoning that there was an “infring[ed]” face-to-face 

confrontation at trial, United States v. Crittenden, 2020 WL 4917733, at *5 (M.D. Ga. Aug. 21, 

2020) (alteration added), or the absence of a “full,” State v. Modtland, 970 N.W.2d 711, 716 

(Minn. Ct. App. 2022), or “traditional” face-to-face confrontation at trial, United States v. James, 

2020 WL 6081501, at *2 (D. Ariz. Oct. 15, 2020). See Crittenden, 2020 WL 4917733, at *6–7

(holding that the mask procedure requiring witnesses to be physically present in court, under 

oath, and subject to cross-examination was sufficient to ensure the reliability of the evidence, and 

that requiring masks while testifying was necessary to further the important public policy of 

ensuring the safety of everyone in the courtroom); James, 2020 WL 6081501, at *2 (same);

Modtland, 970 N.W.2d at 716 (same); People v. Lopez, 75 Cal. App. 5th 227, 232–33 (Cal. Ct. 

App. 2nd Dist. Div. 8, Feb. 15, 2022) (same).

However, in this case, we do not need to go beyond the facts of Craig and Coy to decide 

what constitutes a “normal,” “full,” or “traditional” physical, face-to-face confrontation at trial

because even if a full “physical, face-to-face confrontation” was absent, the district court’s mask 

order satisfies the Craig balancing test; thus, Cuenca’s confrontation right was not violated.

To reiterate, a defendant’s “right to confront accusatory witnesses may be satisfied absent 

a physical, face-to-face confrontation at trial [1] only where denial of such confrontation is 

necessary to further an important public policy and [2] only where the reliability of the testimony 
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is otherwise assured.” 497 U.S. at 850 (alterations added). Under the first prong, the important 

interest being advanced for dispensing with a physical face-to-face confrontation at trial requires 

a “case-specific” finding of necessity, i.e., the trial court must “hear evidence and determine” 

whether the procedure is necessary to the particular witness. Clapp, 170 Idaho at __, 510 P.3d at 

676 (quoting Craig, 497 U.S. at 676). As to the second prong, whether the reliability of 

testimony is assured depends on whether, and to what extent, the “elements of confrontation” are 

present: “physical presence, oath, cross-examination, and observation of demeanor by the trier of 

fact[.]” Craig, 497 U.S. at 846. In this case, both prongs of the Craig test have been satisfied. 

First, requiring the witnesses in Cuenca’s trial to wear masks while testifying was 

necessary to serve the important public interest of protecting the health and safety of those in the 

courtroom: the judge, jury, witnesses, Cuenca, attorneys, bailiffs, courtroom staff, and general 

public. The district court’s mask order relied on this Court’s October 8, 2020, order related to

jury trial procedures during the COVID-19 pandemic. The October 8 order provided that “[a]ll 

persons in the courtroom must wear a mask approved by the assigned judge at all times, unless 

an exception is granted by the assigned judge.” The stated reason for the October 8 order was to: 

(1) “allow for the resumption of jury trials while fostering public safety and mitigating against 

the spread and the continuing rise in COVID-19 cases”; and (2) it was issued due to “the current 

inability of court administration throughout the state to comply with the minimum safety 

protocols necessary for addressing the COVID-19 pandemic[.]” The district court’s reliance on 

that standing order was enough to constitute a case-specific finding of necessity as to each

particular witness who testified at Cuenca’s trial because the relevant public interest—in context 

of the COVID-19 pandemic—was uniquely particular and common to everyone present in the 

courtroom at Cuenca’s trial.

Second, the reliability of the testimony at Cuenca’s trial was assured despite masks 

covering the witnesses’ mouths and noses. The witnesses at Cuenca’s trial testified physically in

court, with nothing obstructing their view of Cuenca (or vice versa), and every witness testified 

under oath, subject to cross-examination. The only “element” in the Craig balancing test that was 

affected by the mask order was the jury’s ability to see the full demeanor or expressions of the 

witnesses’ faces. More specifically, while the jury was unable to see the mouths and noses of the

witnesses, they could see their eyes and bodies. The Confrontation Clause does not require that 
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the jury be able to see every aspect of a witness’s demeanor during testimony, or every part of 

their face and body. See Crittenden, 2020 WL 4917733, at *7 (“The Confrontation Clause does 

not guarantee the right to see the witness’s lips move or nose sniff, any more than it requires the 

jurors to subject the back of a witness’s neck to a magnifying glass to see if the hair raised during 

particularly probative questioning.”).

Moreover, there were other verbal and non-verbal body language cues to aid the jury in 

assessing credibility. Although the witnesses’ mouths and noses were covered in Cuenca’s trial, 

the jury was free to observe the witnesses’ overall body movements, method and manner of 

speech (e.g., hesitations, tone, volume, pitch, etc.), and eye movement (e.g., rolling eyes, furtive 

glances, blinking). This is plainly distinguishable from a situation where a witness is testifying 

out of court and no demeanor is visible to the factfinder. See, e.g., Clapp, 170 Idaho at __, 510 

P.3d at 677 (noting reliability problems where neither the judge nor the parties could view the 

witness’s demeanor during telephonic testimony). Thus, when the partial reduction of demeanor 

caused by masks is considered alongside the presence of every other confrontation “element” at 

Cuenca’s trial, the reliability of the witnesses’ testimony was otherwise assured.

Therefore, both prongs of the Craig test are satisfied, and the district court’s mask order 

did not violate Cuenca’s confrontation right. 

IV. CONCLUSION

For the reasons set out above, we conclude that the district court’s mask order did not 

violate Cuenca’s confrontation right; thus, we affirm his judgment of conviction.

Chief Justice BEVAN, and Justices STEGNER, MOELLER, and ZAHN, CONCUR.