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
Appellant: Chad Wright, Appellate Defender, Eileen A. Larkin,
Assistant Appellate Defender Helena, Montana
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
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?
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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,
unauthorized use of a motor vehicle for Ankeny's May 2012
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.
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.
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.
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.
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.
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.
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.
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.
. . .
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
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.
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?
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.
did not object. During Ankeny's re-cross examination,
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 ...