justice court

An employee of a Green Valley adult care facility who was found partially clothed in the room of a resident with dementia will face a misdemeanor charge of indecent exposure.

Nearly a year after the incident, a spokesman for the Pima County Attorney’s Office said they “simply did not find sufficient evidence to charge the accused person with a felony.”

On May 23, 2020, caregivers at Silver Springs retirement community said they found Robert Keith Durbin, former director of sales and marketing, inside a resident’s bedroom wearing only a shirt, according to a Pima County Sheriff’s report.

County Attorney’s Office spokesman Joe Watson said they are pursuing a class one misdemeanor charge against Durbin for indecent exposure. A pre-trial conference is scheduled for July 21, in Green Valley.

But Durbin, who lives in Green Valley, has also been listed as a perpetrator on the Adult Protective Services Registry after APS said it substantiated claims of abuse.

What happened

According to police reports, Durbin, 66, told PCSD deputies he was helping a resident move paperwork in her living room the evening of May 23 when he noticed a thorn of some sort aggravating his thigh.

Not wanting to use the resident’s restroom “due to fear of COVID-19,” and later claiming that the staff restroom was too far, Durbin said the resident gave him permission to “go into her bedroom...to drop his pants and remove this thorn or twig,” according to the police report.

While attempting to remove the thorn, Durbin reportedly took off his shoes, socks and jeans.

Around the same time, two staff members opened the door to the resident’s room to find her sitting up in bed and Durbin’s clothing piled on the floor. One noted she saw Durbin “acting suspiciously” before entering the room about 20 minutes earlier, according to a report. The incident occurred on a Saturday and Durbin was not scheduled to be at work.

Staff members then saw Durbin quickly run to a closet and later lock himself in the bathroom while they entered the apartment and removed the resident from the room.

According to a report, Durbin stated that “at no time would any of this reflect a sexual relationship between him or [redacted] and that [redacted] suffers from dementia.” He also stated he was “a family friend of [redacted] and would never do anything to harm her.”

Investigators took DNA swabs from Durbin and collected bedding from the resident’s room, though the resident’s power of attorney did not authorize PCSD to take the resident to a hospital to have a rape kit test.

In an emailed statement, a spokesperson for Silver Springs said the facility “continues to support local authorities as they investigate the circumstances surrounding the incident.” Durbin was suspended shortly after the incident and no longer works in the Silver Springs community, according to the statement.

“We are grateful for the ongoing work of the Pima County Sheriff’s Department, and for the quick actions of our team members in response to this situation,” the statement continued.

APS investigates

Following the incident, Arizona Adult Protective Services, the agency that handles reports about mistreatment of vulnerable adults, opened an investigation into the case.

Brett Bezio, a spokesman for Arizona’s Department of Economic Security, said these investigations are jointly conducted with local law enforcement, when possible, to minimize trauma to the individual.

As of February, APS has listed Durbin as a perpetrator on its Adult Protective Services Registry. A 2015 bill passed by the state House of Representatives recently extended the length of time a person’s name remains on that list – from 10 years to 25 years.

According to the registry, the APS investigation substantiated claims of abuse, finding that Durbin “engaged in sexual contact with the vulnerable adult, who was unable to consent to such contact.”

Robert Fleming, a Tucson-based elder law attorney and former Pima County Public Fiduciary, said APS investigations have a high confidentiality barrier, so the likelihood of those findings showing up in court are low.

“A judge has to order them to present that information, or they’re not permitted to share the bulk of their findings,” Fleming said.

“As a result, APS findings don’t show up in court proceedings as often as you might think, but the existence of an APS investigation itself very often triggers court proceedings,” he said.

Fleming also noted the burden of proof varies from APS to criminal court. At APS, the burden of proof to substantiate a claim of abuse, neglect or exploitation requires a “preponderance of evidence,” meaning evidence shows it’s more likely than not the maltreatment took place.

This is a lower standard of proof than is required to convict in a criminal proceeding, which requires “beyond a reasonable doubt,” meaning the prosecution must prove there is no other reasonable explanation that can come from the evidence presented at trial.

Nearly a year since the investigation opened, the Pima County Attorney’s Office still had not found sufficient evidence to charge Durbin with a felony and would not be pursuing a felony conviction.

Joe Watson, spokesman for the PCAO, could not say if the APS investigation had any bearing on PCAO’s own investigation.

“It’s not too surprising to have someone that has demonstrated a substantiated claim and not be able to criminally prove it,” Fleming said.

“My guess is the prosecution looked at a woman with dementia as a primary witness and had lots of concerns, and were maybe not confident enough they could go to trial to prove it,” Fleming said.

Next steps

The Pima County Attorney’s Office will pursue a class one misdemeanor charge against Durbin for indecent exposure.

If convicted, the punishment could vary widely – up to three years probation, up to six months in jail, and a fine of up to $2,500 plus a surcharge. A judge can also order the person attend mandatory counseling.

In addition, according to laws in most states including Arizona, courts will require the person who exposed him or herself to register as a sex offender if found guilty, which can affect where a person can live, work, worship and visit.

According to Durbin’s Linked In profile, his last full-time employment was with Silver Springs where he worked from August 2016 to May 2020, and is now “retired and full-time rving.”

Durbin’s attorney, Lance J. Wood of Marchetti Wood Law in Tucson, said in an emailed statement in April that he is “standing by and hoping to close out this case as soon as possible.”

“Mr. Durbin maintains his innocence and is hoping to put this matter behind him,” Wood said.

Mary Glen Hatcher | 520-547-9740