State v. Ankeny

• Decision Date: 26 October 2010
• Docket Number: No. DA 09-0311.,DA 09-0311.
• Citation: 243 P.3d 391,2010 MT 224,358 Mont. 32
• Parties: STATE of Montana, Plaintiff and Appellee, v. Carl Melvin ANKENY, Defendant and Appellant.
• Court: Montana Supreme Court

243 P.3d 391 358 Mont. 32 2010 MT 224 STATE of Montana, Plaintiff and Appellee, v. Carl Melvin ANKENY, Defendant and Appellant. No. DA 09-0311. Supreme Court of Montana. Submitted on Briefs Aug. 4, 2010. Decided Oct. 26, 2010.

For Appellant: Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Joan Borneman, Deer Lodge County Attorney; Susan Callaghan, Deputy County Attorney, Anaconda, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Carl Ankeny appeals his conviction in the District Court for the Third Judicial District, Deer Lodge County, of Partner or Family Member Assault. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the State present sufficient evidence that Ankeny and the alleged victim were "partners" so as to sustain Ankeny's conviction for Partner or Family Member Assault?

¶ 4 2. Did the District Court err in admitting expert testimony that domestic violence victims commonly recant?

¶ 5 3. Did Ankeny's trial counsel provide effective assistance?

Factual and Procedural Background

¶ 6 On October 15, 2008, Ankeny was charged by Information with Partner or Family Member Assault (PFMA), a felony, in violation of § 45-5-206(1)(a), MCA. The Information alleged that Ankeny caused bodily injury to his girlfriend, Shannon Carter, while the two were driving around together in the early morning hours of October 5, 2008.

¶ 7 According to the Affidavit in Support of Motion for Leave to File an Information, Carter initially told law enforcement officers that

she had been in the vehicle with [Ankeny], whom she describes as her boyfriend, and that when she told him that she wanted to go home and be with her kids [Ankeny] "freaked out" and started choking her. She stated that she was on the driver's side and that [Ankeny] reached over and pulled the car keys out of the ignition and tossed them out the passenger window. She then stated that she jumped out of the car and took off running down the highway and was hiding in the ditch so [Ankeny] could not find her as shewas terrified of him.

The affidavit also stated that although Carter refused to sign a domestic rights form, she did allow the officers responding to the scene to transport her to the station where photographs were taken of the red marks on the right side of her neck.

¶ 8 The day after the incident, Carter wrote two letters, one to the judge and one to the prosecuting attorney, wherein she asked that the charges against Ankeny be dropped. She claimed that the charges were false and that Ankeny had not tried to harm her.

¶ 9 Similarly, at trial, Carter denied that Ankeny had tried to choke her. Carter testified that after bar hopping for a bit, she and Ankeny went for a drive in her car. Carter admitted that she had at least 18 drinks over the course of that evening and that she was intoxicated and in no condition to drive. Carter testified that although she and Ankeny argued about whether she should try to drive home, nothing physical happened. She also testified that she got upset when Ankeny took the keys out of the ignition to prevent her from driving because she needed to get home to her children as it was almost 4:00 a.m. She said that she eventually left the car and started to walk home.

¶ 10 Ankeny testified on his own behalf at trial. He said that he and Carter were out on their first date together and that they had spent much of the evening drinking. Since neither he nor Carter was in any condition to drive, he told Carter that they should "stop and sober up" before trying to go home. He testified that he tried to reason with Carter, but she kept telling him that she needed to get home. Consequently, Ankeny took the keys out of the ignition. Ankeny further testified that, at some point, Carter left the car and started to walk home. He statedthat he did not harm Carter prior to her leaving the car, nor did he attempt to follow her once she left the car. Instead, he either fell asleep or passed out in the passenger seat of the vehicle where officers found him some time later and arrested him.

¶ 11 The initial call to the police regarding this incident came from Shane Nisbet, Carter's former boyfriend and the father of one of her children. Although Nisbet and Carter had split up a few days earlier, they were still living in the same house and Nisbet was watching Carter's three kids that night. Carter had called Nisbet from her cell phone after exiting the car to request that Nisbet come and get her, but because the children were asleep in bed, Nisbet was unable to do so. After Carter's call, Nisbet placed two calls to 9-1-1 to report that Ankeny had tried to choke Carter.

¶ 12 In their testimony at trial, Carter and Nisbet recounted differentversions of their telephone conversation that night. Nisbet testified that he called the police because Carter was hysterical when she phoned him. He claimed that Carter told him that she had jumped out of the car because Ankeny had tried to kill her. Carter, on the other hand, testified that Nisbet had fabricated the story that Ankeny had tried to kill her because Nisbet was angry with her for seeing Ankeny. Carter maintained that she simply asked Nisbet for a ride home, but he refused. She further testified that Nisbet threatened to have her declared unfit, that she feared she would lose her kids, and that Nisbet had made false reports about her before.

¶ 13 The State presented testimony from George Niland, Carter's father, at trial. Niland testified that a friend had called him that night after hearing Carter's name over a police scanner. Niland drove to the location and, when he arrived, he found Carter distraught and "kind of hysterical." According to Niland, Carter initially did not want to talk to the officers because she was afraid she was going to lose her kids. Niland eventually persuaded Carter to speak with the officers. He testified that he overheard Carter tell the officers several times that Ankeny had not attempted to choke her, but she did at one point relent and say that he did.

¶ 14 In addition to introducing photographs of the red marks on Carter's neck taken the night of the incident, the State called Joe Thompson, a social worker, to testify as an expert on the issue of domestic violence. Thompson testified that it was not unusual for victims of domestic violence to be cooperative with the police initially because they want to be protected, but the next day they may have second thoughts and recant. While Thompson was not asked to relate his testimony to the facts in this case, the prosecutor stated the following about Thompson's testimony in her closing argument:

[T]he purpose of [Thompson's] testimony was to help you understand why victims of domestic violence; it's common that victims recant. And that's what we had in this statement. We have a recant.

The next day; oh, and he told you the reason; hope, love, fear. This is a new relationship, wanting it to; with Carl Ankeny, wanting it to continue. Common to go from the same relationship; abusive relationship into another. That's what happened here. She recanted and it's common for victims of domestic violence; which she is by her own admission, common to recant.

And he's an expert. And as you heard he's been in this field for over twenty years.

¶ 15 The jury convicted Ankeny of felony PFMA. The District Court designated Ankeny a persistent felony offender and sentenced him to twelve years at Montana State Prison, with five years suspended. Ankeny now appeals his conviction.

Issue 1.

¶ 16 Did the State present sufficient evidence that Ankeny and the alleged victim were "partners" so as to sustain Ankeny's conviction for PFMA?

¶ 17 Both Carter and Ankeny testified at trial that this was their first date. Consequently, Ankeny asserts on appeal that he was wrongly convicted of PFMA because going out on a first date does not make a person a "partner." The State asserts on the other hand that the evidence presented wasmore than sufficient for a rational trier of fact to conclude that Carter and Ankeny were "partners." The State further asserts that there was sufficient evidence to show that Ankeny assaulted Carter—an element of the offense not challenged on appeal.

¶ 18 "We review the sufficiency of the evidence in a criminal matter to determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Potter, 2008 MT 381, ¶ 15, 347 Mont. 38, 197 P.3d 471 (quoting State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74).

¶ 19 Ankeny was convicted of violating § 45-5-206(1)(a), MCA, which provides:

Partner or family member assault—penalty. (1) A person commits the offense of partner or family member assault if the person:

(a) purposely or knowingly causes bodily injury to a partner or family member....

A "family member" is defined in § 45-5-206(2)(a), MCA, to include "mothers, fathers, children, brothers, sisters, and other past or present family members of a household." Whereas "partners" are defined in § 45-5-206(2)(b), MCA, as

spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex. [Emphasis added.]

¶ 20 In challenging the sufficiency of the evidence on the issue of whether Ankeny and Carter were "partners" within the meaning of § 45-5-206(2)(b), MCA, Ankeny cites to numerous cases from otherjurisdictions to define the concept "dating relationship." He maintains that "the words 'dating relationship' provoke a different 'common usage' from one person to the next." And that "[a]ny attempt to discern a universal meaning for this phrase is 'problematic.' "

¶ 21 We have repeatedly held that, when...