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State of Idaho v. Hilario Guel

October 3, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
HILARIO GUEL, JR.,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: Gratton, Chief Judge

2012 Unpublished Opinion No. 655

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY

Judgment of conviction and unified sentence of twenty years, with a minimum period of confinement of ten years for domestic violence, attempted strangulation, violation of a no contact order and persistent violator enhancement, affirmed.

Hilario Guel, Jr., appeals from the judgment of conviction for felony domestic violence, Idaho Code §§ 18-903, 18-918(2), attempted strangulation, I.C. § 18-923, violation of a no contact order, I.C. § 18-920, and persistent violator, I.C. § 19-2514. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Melissa Davidson became romantically involved with Guel in 2007 and subsequently moved into Guel's house. On July 8, 2009, Davidson and Guel had a verbal argument while at a local bar. Later, as the two were riding on Guel's motorcycle back to their residence, Davidson told Guel she wanted off the motorcycle, and began to get off while the motorcycle was still moving. Although Guel attempted to slow down, Davidson was thrown off the motorcycle. Guel then drove home while Davidson followed on foot. When Davidson arrived at the residence, Guel opened the door and Davidson screamed at him then went upstairs to her bedroom and locked the door. Guel followed Davidson upstairs, kicked the door in, and entered the bedroom. In later statements made to the police, Davidson described the ensuing altercation:

[Davidson] told me that a physical fight had ensued between Larry and her. A battery had occurred where he punched her in the face and had--what she estimated to be 16 to 17 times, included closed fist punching as well as open palm striking. She reported that during the course of the battery, Larry straddled her and she mimicked the strangulation. She closed her fist. Placed her knuckles in this fashion. Said that he applied his knuckles downward onto her throat restricting her ability to breathe.

She said that this portion of the strangulation that she estimated occurred for approximately two minutes and during this course, this time frame, she was able to grab a Scentsy warmer candle and strike him on the side of his head in an effort to get away from him, which she reported to me did temporarily work.

After striking him in the head with the Scentsy candle she said that she tried to call 911. He broke her phone. He actually broke two phones during the course of this. Then the battery continued. Escalated again to a second incident of attempted strangulation, which happened on the floor of the bedroom.

She said at this point he used open hands to grab around her neck, apply pressure, diminishing her ability to breath. And she estimated that that occurred and lasted for approximately five minutes.

After the incident, Davidson was examined at the emergency room. The doctor concluded that Davidson had multiple bruises on her face and neck, including bruising and swelling around her left eye, a swollen upper lip, extensive bruising on both sides of her neck, and a broken nose.

As a result of the motorcycle incident, the State charged Guel with felony domestic violence and leaving the scene of an injury accident. The altercation at the house resulted in Guel being charged with another count of felony domestic violence, attempted strangulation, intentional destruction of a telecommunication line, and violation of a no contact order. The State also charged Guel with being a persistent violator. After a jury trial, Guel was convicted of felony domestic violence (for the house altercation), attempted strangulation, violation of a no contact order, and was found to be a persistent violator of the law. He was acquitted of the remaining charges.

The district court sentenced Guel on each of the convictions, all sentences to be served concurrently, resulting in a unified term of twenty years with ten years determinate. Guel timely appeals.

II.

ANALYSIS

Guel claims that the district court erred by: (1) requiring production of a letter that Guel wrote to Davidson regarding her testimony; (2) admitting expert testimony regarding a victim's tendency to recant or minimize in domestic violence cases; (3) admitting evidence of a prior domestic violence incident; and (4) precluding admission of evidence of a subsequent battery ...


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