State v. Arlington

Decision Date09 June 1994
Docket NumberNo. 93-099,93-099
Citation875 P.2d 307,265 Mont. 127,51 St.Rep. 417
PartiesSTATE of Montana, Plaintiff and Respondent, v. Ollie W. ARLINGTON, Defendant and Appellant.
CourtMontana Supreme Court
Channing J. Hartelius, Hartelius, Ferguson & Baker, Brant S. Light, Great Falls, for defendant-appellant

Joseph P. Mazurek, Atty. Gen., Michael S. Wellenstein, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Great Falls, for plaintiff-respondent.

NELSON, Justice.

This is an appeal by the defendant from a jury trial verdict and subsequent sentencing order, of the Eighth Judicial District Court, Cascade County, finding the defendant guilty of aggravated assault and sentencing him to ten years in prison, with six years suspended, plus two years for the use of a dangerous weapon in the assault. We affirm the District Court.

The following are issues on appeal:

1. Did the District Court err by failing to give Arlington's Instruction No. 12?

2. Did the District Court err when it excluded Arlington's proposed expert witness' testimony?

3. Did the District Court err when it granted the State's motion in limine to exclude testimony concerning a possible civil lawsuit by the DeKonings against Arlington?

4. Did the District Court err when it allowed the Emergency Medical Technicians (EMTs) to testify regarding Carl DeKoning's statements made during the trip by ambulance to the hospital?

5. Did the District Court conduct a proper in-camera inspection of DeKoning's chemical dependency rehabilitation records?

6. Was there sufficient evidence to sustain the conviction of aggravated assault?

7. Did the District Court err when it denied Arlington's motion for a new trial?

8. Was Arlington deprived of his right to a fair trial due to prosecutorial misconduct?

9. Did the District Court err by sentencing Arlington under the weapon enhancement statute?

10. Were Arlington's constitutional rights violated because he was sentenced under the weapon enhancement statute rather than through the charge of felony assault with a weapon?

11. Did the District Court err when it failed to order a new sentencing due to irregularities at sentencing?

12. Did the District Court err when it failed to find an exception to the mandatory minimum sentence for aggravated assault?

FACTUAL BACKGROUND

In order to understand the events which led to the aggravated assault charge against Oliver (Ollie) Arlington (Arlington), the framework around which this incident transpired must be presented. Carl DeKoning (DeKoning), the victim of Arlington's assault, and his wife, Vicki DeKoning (Vicki), moved to Belt, Montana, in about 1985. DeKoning Subsequent to the DeKoning's move to Belt, Vicki became employed by Arlington at the Black Diamond Bar for approximately five years. At some point during their working relationship, Arlington and Vicki began and maintained an affair.

had a history of alcohol abuse, as well as physical and sexual abuse of his wife.

In time, DeKoning discovered the affair and several incidents occurred as a result. DeKoning found Arlington's wallet in his truck. He gave the wallet to Vicki and also went to Arlington's house to tell him that Vicki had his wallet.

Nothing more came of the incident with the wallet but as the extramarital relationship continued, DeKoning decided that he would go to talk to Arlington and see if Arlington would take care of Vicki and the DeKoning children, in the event that DeKoning stepped out of the picture. Arlington agreed to take care of them so DeKoning returned home to talk to Vicki about Arlington's decision. However, she did not want to leave her relationship with her husband; she wanted to wait and see if DeKoning would "quit his drinking and straighten up."

At a point shortly after the decision to wait and see whether DeKoning and Vicki would reconcile, the DeKonings decided to go to a show together. Arlington appeared at the show, took Vicki out of the theater and attempted to discuss where their relationship was headed. Although DeKoning did not attempt any action at the show, he appeared at Arlington's house the following day and told Arlington to stay away from his wife, called him names, threatened him, and spit in Arlington's face.

The DeKoning's relationship continued to deteriorate and on June 12, 1992, DeKoning asked Vicki for a divorce. He did not wish to talk about the divorce that day, and, needing some mechanical work performed on his truck, left for a friend's house to use his workshop.

DeKoning worked on his truck at his friend's house, drinking beer as he worked. Upon completion of his mechanical work, DeKoning left his friend's house and proceeded to town. On his way to town, he saw a squirrel in the road and swerved to avoid hitting the squirrel.

In his attempt to avoid hitting the squirrel, DeKoning moved into the opposite lane of traffic, where Bryan Arlington, (Bryan) Arlington's son happened to be driving. Bryan called his father and his father suggested he call Rod Kovak, a Deputy Marshal from Belt. Kovak testified that Bryan did not seem afraid of DeKoning, merely concerned that he might have been drinking. Kovak sought out DeKoning in reference to Bryan's report but could not find him.

Meanwhile, DeKoning continued drinking into the evening, going to Vicki's uncle's house to barbecue steaks. When he returned home, he and Vicki argued over marijuana Vicki had found in DeKoning's pants. He then hit her in the head, took the marijuana and left the house. Later, when she could not locate her sons, she called and determined that the boys were with their father at Vicki's uncle's house.

Vicki does not allow her children to ride with their father when he has been drinking so she decided to go and retrieve the boys. Expecting possible trouble, she called Arlington before she left and stated that if she did not return in ten minutes, Arlington should come looking for her. She testified during trial that when she arrived at her uncle's house, the children were waiting for her and she drove over to her friend's house and stayed and visited for a while.

Vicki arrived back at her home at about 11:30 p.m., whereupon she argued with DeKoning and thereafter, he sexually assaulted her. He testified that he went out to an addition to the house, after the assault had ended, smoked some marijuana, cried and decided that his marriage was over. A short time later, he went to bed.

At about 2:00 a.m., the phone rang in the DeKoning home. The phone call was for Vicki, and it was from Arlington, wondering if she was all right. DeKoning heard the conversation, ascertained that the caller was Arlington, and hung up the phone. Arlington called again and DeKoning answered the telephone. According to DeKoning's testimony, Arlington was insisting that DeKoning DeKoning testified that when he arrived at the Arlington residence, he yelled, "hey, you son-of-a-bitch, I'm here" and Arlington flew out of his trailer with a bat in his hand. A struggle followed, with DeKoning trying to get the bat but Arlington hit him in the legs with the bat. DeKoning blacked out momentarily and when he "came around," he tried to poke Arlington in the eye but Arlington hit him in the head with the bat. DeKoning stated that he did not remember what occurred after that point until he woke up in the Intensive Care Unit of the hospital.

                had tried to harm Bryan.   Arlington asked DeKoning to meet him in Armington but DeKoning stated that he would rather meet him at the Arlington home.   DeKoning took a beer and left for the Arlington residence
                

Arlington's testimony about the event differed. He testified that he was in bed when he heard someone "hollering" and banging on his door. When he realized that it was DeKoning, Arlington told his son, Bryan, to call the police. He stated that when he arrived at the door, DeKoning "smacked" him and then he hit DeKoning and both men went tumbling out the door. The two men fought and struggled, kicking each other and falling among a motorcycle, coolers and boxes of all types which were lying on the ground in the area where they had fallen.

According to Arlington, DeKoning was relentless, at one point grabbing Arlington's eye and Arlington, in an effort to "fight off" DeKoning, started elbowing him. He stated that DeKoning finally loosened his grip after Arlington continually hit him in the head. Arlington then moved away from DeKoning, Bryan came out the door, Arlington determined that Bryan had not called the police so he called Rod Kovak and asked him to come to the Arlington residence.

At the time of the altercation, Ida Ginger Elam, a neighbor of Arlington's, was awakened when a dog began barking and she heard yelling. She heard the sound of very hard hitting, similar to the sound of a bat hitting a sandbag. She heard the sound of a light voice trying to stop the beating. When the beating did stop, Ms. Elam saw someone go to a truck parked in front of the trailer, enter the truck, drive the truck up the Armington Road and return about five minutes later. She returned to bed but got up and looked out the window again when she saw lights shining through her window. When she went to the window, she saw a person in uniform moving about the area.

Deputy Rod Kovak testified that he received a call from Arlington about 2:45 a.m. Arlington told Kovak that DeKoning was at his house and wanted to fight and he requested Kovak's presence. Arlington called back about three minutes later and told him to hurry. Kovak found DeKoning lying on the ground with a laceration above his eye. He observed that Arlington did not look like he had received any injuries. Arlington reported a fight with fists, elbows, kicking and falling down the stairs. DeKoning reported that Arlington hit him with a bat. When Arlington learned what DeKoning had said about the bat, he requested that Kovak search for a bat or a...

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