State v. Ullom

1

STATE OF IDAHO, Plaintiff-Respondent, v. TERRY GLEN ULLOM, Defendant-Appellant.

No. 49301

Court of Appeals of Idaho

July 20, 2023

UNPUBLISHED OPINION

Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Barbara Duggan, District Judge.

Judgment of conviction for attempted strangulation and domestic battery, affirmed.

Silvey Law Office, Ltd.; Greg S. Silvey, Boise, for appellant.

Hon Raul R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

HUSKEY, JUDGE

Terry Glen Ullom appeals from the judgment of conviction for attempted strangulation. On appeal, he argues the district court erred when it admitted irrelevant testimony regarding the general characteristics of domestic violence relationships and when it excluded his expert testimony regarding the victim's state of mind at the time of the event. Because the testimony regarding the nature of domestic violence relationships was relevant, the district court did not err in admitting the evidence. Similarly, the district court did not err in excluding Ullom's expert testimony regarding the victim's state of mind at the time of the event because defense counsel acknowledged he was not going to be admitting that testimony and because the testimony was beyond the scope of the expert's knowledge and experience. The judgment of conviction is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ullom lived with his long-time girlfriend, Marla Hartman. One evening, after socializing with friends at a local bar, Ullom wanted to continue socializing and invited the friends back to the house. Later, Hartman rescinded Ullom's invitation. This angered Ullom and on the way home there was a physical altercation between Ullom and Hartman. Hartman claimed Ullom battered and attempted to strangle her. She escaped, ran into their shared home, and locked the door. Believing that Ullom would continue to assault her and ultimately kill her, Hartman retrieved a handgun and fired a warning shot through a window. She looked out and saw Ullom laying on the porch but she did not see any blood. Believing Ullom would kill her, Hartman shot Ullom, causing a head injury. She then accidentally discharged the gun into a closet and called 9-1-1.

Emergency medical services and law enforcement were dispatched to the home. Ullom, who was severely injured, was taken to the hospital. Hartman was taken to the hospital early the next morning where she was diagnosed with a bruised rib, a fractured rib, contusions to her head and arms. Ullom also had numerous other bruises and marks on her neck. Hartman sought followup treatment for her continued head pain.

Ullom was charged with felony attempted strangulation, Idaho Code § 18-923, and misdemeanor domestic battery, I.C §§ 18-903, 18-918(3)(b). Prior to trial, the State filed an Idaho Rule of Evidence 404(b) motion to admit certain evidence detailing the relationship between Ullom and Hartman. The State also filed an expert witness disclosure for Sherri Cameron, also known as Sherri Coronado, listing ten proposed areas of testimony. Lastly, the State filed a motion in limine to preclude Ullom's firearm expert Gaylen Warren, from testifying about Hartman's state of mind at the time she shot Ullom. During the motion in limine hearing, the State made the same objection to Ted Pulver, the defense investigator, testifying that, in his professional opinion, Hartman's "supposed argument [regarding the physical altercation and her fear of Ullom] is a fabrication and justification for a murder attempt."

Following the hearing on the motions in limine, the district court concluded Cameron would be permitted to testify on the general dynamics of domestic violence relationships but not on the other areas requested by the State. The district court also held that neither of the defense experts could testify about Hartman's state of mind at the time of the shooting. Ullom was convicted of both charges following a jury trial and appeals only from his conviction of attempted strangulation.

II. STANDARD OF REVIEW

"The question of whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an abuse of discretion." State v. Smith, 170 Idaho 800, 807-08, 516 P.3d 1071, 1078-79 (2022) (quoting State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

III. ANALYSIS

A. Relevancy of Domestic Violence Testimony

Ullom's first argument on appeal is that the district court erred in admitting the testimony of Cameron, who was permitted to testify about the "dynamics of a relationship that relies on domestic violence," generally, but not about Ullom and Hartman's relationship, specifically. Ullom argues this evidence was irrelevant because the district court previously ruled that testimony about prior instances of domestic battery by Ullom upon Hartman was propensity evidence and inadmissible pursuant to I.R.E. 404(b). Ullom argues that without any evidence of prior domestic abuse, general information about domestic violence would not assist the jury in answering the question at issue--whether, in this case, Ullom attempted to strangle Hartman. Ullom further argues that testimony about generally abusive relationships would lead the jury to speculate about whether Ullom had previously battered Hartman and that such speculation would lead to suspicion, which would result in the jury relying on propensity evidence to find Ullom guilty. Ullom also asserts the erroneous admission was not harmless because the testimony essentially vouched for Hartman's credibility in a case where the victim's credibility was critical.

The State argues the evidence was relevant because the testimony addressed the defense's theory of the case that "Hartman lied about Ullom's actions and about her fear of him in order to attempt to obtain exoneration for an intentional attempted murder." The State argues the evidence was also relevant to evaluate challenges to Hartman's credibility, "evaluations regarding her behavior after the charged conduct, purported inconsistent testimony and forgotten events, that Hartman never left the relationship with Ullom, [and] that she did not display petechiae."

Evidence that is relevant to a material and disputed issue concerning the crime charged is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. I.R.E. 401; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or material is determined by its relationship to the legal theories presented by the parties. State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). Pursuant to I.R.E. 702, an expert witness may provide an opinion "if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."

1. Cameron's Testimony Regarding the Dynamics of Domestic Violence

As context for the parties' arguments, additional factual background is necessary. Ullom had an outstanding Colorado felony arrest warrant issued in approximately 2002 for a charge of transporting marijuana. Because Ullom was a fugitive from justice on that warrant, to evade arrest, he used a fake name and Hartman was the sole individual listed on Ullom and Hartman's shared home, all bank accounts, and all of Ullom's business accounts related to his successful blacksmith work.

Ullom explained his theory of defense to the district court and stated that he expected the evidence at trial to show that all power and control in the relationship rested with Hartman because of Ullom's fugitive status. According to Ullom, because Hartman knew Ullom was a fugitive, Hartman also knew that if she contacted law enforcement about anything, Ullom would have been arrested and extradited to Colorado. As a result, Hartman was not a victim of domestic abuse and did not suffer from battered woman syndrome because she maintained all the power in the relationship. Instead, according to Ullom, it was he who lived in constant fear and was submissive to Hartman so that she would not contact law enforcement. As a result, argued Ullom, Cameron's testimony was not relevant to the facts of the case because there was no evidence or a basis to suggest Hartman had been victimized in the past by Ullom and Hartman's circumstances were unlike the people Cameron would characterize as victims of domestic violence. In sum, Ullom argued, "There's just a total lack of evidence that [Hartman] has ever been a victim of domestic violence at the hand of Mr. Ullom."

The State proffered that Cameron would testify generally about the characteristics of domestic violence and some of the circumstances under which domestic violence occurs. The State argued that in light of Ullom's theory of defense, the testimony was relevant to explain the dynamics of domestic violence relationships and why Hartman might not have reported prior instances of domestic violence. The State further asserted that understanding why victims of...