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State v. Ankeny

Supreme Court of Montana

April 17, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
CARL MELVIN ANKENY, Defendant and Appellant.

          Submitted on Briefs: January 17, 2018

          District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 13-249 Honorable Jeffrey H. Langton, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Eileen A. Larkin, Assistant Appellate Defender Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

          William E. Fulbright, Ravalli County Attorney, Meghann Paddock, Deputy County Attorney, Hamilton, Montana

          OPINION

          Jim Rice, Justice.

         ¶1 Carl Melvin Ankeny appeals his jury conviction for assault with a weapon, two counts of partner or family member assault (PFMA), and unauthorized use of a motor vehicle in the Twenty-First Judicial District, Ravalli County. We affirm, and address the following issues:

1. Did the District Court err by granting the State's motion to join the first and second cases for trial, after a mistrial in the first case?
2. Did the District Court err by admitting letters Ankeny wrote to the victim from jail?
3. Did the District Court err by denying Ankeny's motion for a mistrial?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 Ankeny and his then-fiancée, Vonnie, spent a day in April of 2012 fishing and drinking beer. When they got home that night, Ankeny became upset because Vonnie's dog had gone to the bathroom on the floor while they were out. Ankeny threw Vonnie on a bed and started hitting her with an open hand. Ankeny got a knife, cut Vonnie's clothes, and stabbed the bed while Vonnie was on it. Vonnie tried kicking Ankeny to get away, but Ankeny choked her until she lost consciousness. When she regained consciousness, Vonnie tried to run away, but Ankeny grabbed her hair, threw her on the bed again, and choked her until she lost consciousness two more times. Vonnie testified that she was scared for her life and stayed in the bed with Ankeny the rest of the night. She testified she did not then leave the relationship because she was afraid and did not know where to go.

         ¶3 On May 1, 2012, Ankeny and Vonnie again spent the day fishing and drinking beer. When they returned home, Ankeny again became angry because Vonnie's dog had gone to the bathroom on the floor. Ankeny yelled at Vonnie and threw drinking glasses at the wall. He took her phone out of her pocket and elbowed her in the face. Vonnie testified she believed Ankeny was going to get a knife, so she ran from the house and hid in a nearby park. Ankeny got into Vonnie's car and drove around, but was unable to find her. When Vonnie later returned home, Ankeny was gone, along with her car and dog.

         ¶4 Vonnie's friend, Barb, came to assist Vonnie. Concerned about the return of her car and dog, Vonnie contacted police. Officer Tod Wofford responded, and after learning that Ankeny had elbowed Vonnie's face, he initiated a PFMA charge against Ankeny. Vonnie told Officer Wofford that she was afraid for her safety if charges were filed against Ankeny. Vonnie did not tell Officer Wofford about the April incident and stated no similar altercations had previously occurred between her and Ankeny, although she said Ankeny had been violent to others in the past. Vonnie stayed with Barb, and eventually returned home to discover her dog had been returned, but that her car was gone.

         ¶5 A week later, Ankeny was arrested near Missoula for driving under the influence and driving the wrong way on the interstate highway. He was driving Vonnie's car. A few days after Ankeny's arrest, he began writing letters to Vonnie from jail, and continued to do so for several months. Vonnie wrote back a few times, testifying that during this time period she was confused and uncertain about her relationship with Ankeny. After a few months, Vonnie decided she needed to end the relationship. Ankeny sent his last letter in December 2012. In January 2013, Vonnie disclosed the April 2012 incident to Sergeant Matt Cashell, providing the knife Ankeny had used and other physical evidence. Vonnie explained she did not initially disclose the April incident to police because she feared Ankeny.

         ¶6 In December 2013, the State filed an information in case number DC 13-249 (hereinafter "the first case"), charging Ankeny with assault with a weapon, criminal endangerment, and PFMA for the April 2012 incident. At the same time, the State filed an information in case number DC 13-250 (hereinafter "the second case") for PFMA, failure to maintain violent offender registration, [1] and unauthorized use of a motor vehicle for Ankeny's May 2012 conduct.

         ¶7 An omnibus hearing was held in both cases in January 2014. In its memorandum for the first case, the State indicated no pretrial motions would be filed, including those listed in § 46-13-110, MCA, which includes joinder under § 46-11-404, MCA. In its memorandum for the second case, the State expressed an intention to file a motion to sever the failure to register charge from the other charges. The deadline for motions was February 19, 2014. On April 30, 2014, the State moved to sever the failure to register charge from the second case, which was granted by the District Court and transferred to case number DC 14-401. The State did not move for joinder of the first and second case.

         ¶8 The first case, involving the April 2012 incident, was tried to a jury in June of 2014. Before trial, the State agreed to exclude any reference to the May 2012 incident, as well as the contents of Ankeny's letters from jail, if Ankeny would not challenge Vonnie's credibility for her nine-month delay in reporting the April 2012 assault. Although Ankeny's strategy was to attack the credibility of Vonnie's claims, he did not base his attack on Vonnie's nine-month delay in reporting the incident. Sergeant Cashell testified that he interviewed Vonnie regarding her relationship with Ankeny, and that Vonnie had provided physical evidence related to the April 2012 assault, including a knife, and letters written by Ankeny. The content of letters, and the fact that Ankeny had written them from jail, were not disclosed.

         ¶9 The jury was unable to reach a verdict and the court declared a mistrial. The Jury Foreman volunteered the following statement before the jury was dismissed:

Your Honor, if you will permit, and I think I can speak for all the jurors, with all due respect for the officers of the court and your good intentions, we feel that if both the prosecution and defense had done a more adequate job, it would have made our ability better to render decisions on any of those charges. Unfortunately, we felt that wasn't the case, and that got us where we are here. Thank you for letting me make that statement.

         The State contacted several jurors after the trial, and learned that the jury had reached its own conclusion that Vonnie had significantly delayed reporting the April 2012 incident, which contributed to their inability to reach a verdict.

         ¶10 The State then moved to join the first and second case. Ankeny opposed joinder because "stacking" the PFMA charges would have a cumulative prejudicial effect, and because he wanted to retain the option of presenting different defense strategies for each offense. However, the District Court granted the motion, reasoning that the two crimes were "remarkably similar, " as the charges were brought under the same statute, involved the same victim, same location, same or similar modus operandi, and were committed a short time apart, and that joinder was in the interests of justice.

         ¶11 The second trial was held in July of 2014. At the pretrial conference, the State sought leave to introduce several of the letters Ankeny wrote to Vonnie from jail, arguing they included possible admissions, were attempts to influence Vonnie not to advance the PFMA charges, explained Vonnie's delayed disclosure of the April assault, and demonstrated the domestic violence cycle of Ankeny's control over Vonnie. Ankeny objected on Rule 403 grounds, noting prejudicial references to Ankeny being jailed in Missoula for DUI, references to violent behavior, and references to a prior prison term. He asked that the letters be excluded if he did not attack Vonnie's credibility based on her delayed reporting, as in the first trial. Alternatively, he asked that the letters be redacted, or that portions of the letters be read so the jury would not know about the redactions. The State opposed redaction, arguing the references to Ankeny's prior acts were interwoven through the letters, making it difficult to redact the letters without giving the inference that something was being hidden, as in the first trial. The District Court admitted the letters, unredacted, concluding the contents were relevant and agreeing that redaction would be difficult.

         ¶12 Five letters were submitted to the jury. Ankeny's apologies to Vonnie were intermixed with pleadings for her favor and assistance with the charges, as well as comments related to prior acts, as illustrated by this passage:

Hello my love . . . . I am sorry for everything that has happened Buggy, I love you with all my heart and I miss you more than ever. I am glad that I got to hear your voice on the phone, it put me at ease. I know that my mess sounds like the worst in the world but it really isn't. I have the criminal endangerment charges but they will be dropped down, I just have to sit here and wait. I also requested that I stay here for all court stuff so I am close to you. I know that I was going to get violated, just not like this. I pray that you will still stick by me. I really do love you and I will do everything that I have to get back to you. I really want to be the man you fell in love with again. I really am asking you for that chance . . . . I really do need you in my life because you are my world. I fell completely in love with you. I am sorry for all the wrongs I have done. Our moving had also brought on a lot of stress for one I knew it was violating, I just didn't know when. I was on my way home when this mess I am in happened. I left there because of the paperwork you left on the kitchen table, which only you can fix and I hope you do, it is a worse situation than this one by far. Right now I have to take care of this, I am in panic mode because I don't want to lose my Buggy. I miss our puppy too . . . . I will do everything to improve myself for us Buggy, any groups, counselling, anything. I would even get on medication for us. I just don't want to lose you Buggy. I know that our love for each other is strong. You told me several times that you would wait for me, I hope it is true, you will be the first real person that I have ever had and so far, you have been perfect. I am going to use this time to improve myself and focus on you and us, that will keep me going and not give up and the charges will get dropped, that are nonsense. I did not know I was on the wrong side of the road when this happened. I haven't even been charged with a DUI as of yet. I was also hit in the head with something, within a 5 minute time frame of this all happening. I just wanted to get home to my wife. I do love you with all my heart and I mean that 100%. I hope you are the same. I take the blame for all our problems. I am so sorry Buggy. I will be much different, the man you met and fell in love with. I will write to you every chance I get Buggy and I hope you will do the same . . . . I really hope that you come see me the first chance you get. This won't kill us Buggy, it will only make us a stronger couple. That's for sure. I told you I wanted to grow old together and I really really meant it. I will keep out of trouble and keep you in my thoughts here 24-7 . . . . I won't stop fighting this until I win Buggy, I won't lose you . . . . I know you are true Buggy, I miss you so very very much. Will you please write me all you can. I stand at mail pass every day . . . . I do have a lot to say, I will tell you more in the next letter. I love you Buggy, kiss.

         Other letters stated:

I hope that you took care of the mess over there. I don't need any more charges. And I couldn't get out of that without you helping for sure . . . . Then I will go to my violation hearing, at Deerlodge, and either have to go to a program or get put back out . . . . I am praying that you took care of the thing over there, I have no charges so that's a good sign.
. . .
I fear another prison term . . . . My drinking is all over too, I can't be putting you through hell, it is not fair to do that to the person you love. They always say we hurt the ones closest to us the worst.[2]
. . .

         ¶13 Sergeant Cashell testified that the letters demonstrated manipulative behavior that exists in domestic violence relationships, and explained the patterns of domestic violence. On cross-examination, Ankeny's attorney suggested that Ankeny was referencing his drunken driving, as opposed to the alleged assaults, when making the apologies. The District Court gave a cautionary instruction regarding the contents of the letters:

The State has offered letters of the Defendant that reference that he may have engaged in other crimes at another time, specifically driving while intoxicated in Missoula County. That evidence was not admitted to prove the character of the Defendant or to show he acted in conformity therewith. The only purpose of admitting that evidence was that the State asserts those letters contain admissions by the Defendant that he committed the offenses in this case. The Defendant denies this. You are the sole judge of what those letters mean.
The Defendant is not being tried for that other crime. He may not be convicted for any other offense than that charged in this case. For the jury to convict the Defendant of any other offense than that charged in this case would result in unjust double punishment of the Defendant.

         ¶14 Deputy Wofford testified about responding to Vonnie's call following the May 2012 incident. During the State's re-direct examination, he stated:

Q. When you were talking with [Vonnie], was she forthcoming about why she felt threatened?
A. Yes.
Q. What did you learn?
A. Eventually, while talking with Vonnie, she had said that she knew that [Ankeny] had been violent in the past and that that's why she feared when he went for the knives, that she thought something may happen.

         Ankeny did not object. During Ankeny's re-cross examination, Wofford stated:

Q. My knowledge of your report is that, as she had stated in there, that there had never been any incidents between herself and [Ankeny]; is that correct?
A. Correct, [Vonnie] said there had never been any physical disturbance between her and [Ankeny], but she knew of previous engagements where he was ...

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