PEOPLE OF MI V COURTNEY MONTGOMERY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 22, 2007
Plaintiff-Appellee,
v
No. 269201
Wayne Circuit Court
LC No. 05-010376-01
COURTNEY MONTGOMERY,
Defendant-Appellant.
Before: Cooper, P.J., and Murphy and Neff, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of first-degree home invasion,
MCL 750.110a(2), and domestic violence, MCL 750.81(2). Defendant was sentenced to 51
months to 20 years for the first-degree home invasion conviction, and 60 days for the domestic
violence conviction, with the sentences to run concurrently. We affirm. This case is being
decided without oral argument pursuant to MCR 7.214(E).
Defendant’s first argument on appeal is that there was insufficient evidence to convict
him of first-degree home invasion, and that, instead, he should have been convicted of thirddegree home invasion or entry without owner’s permission. We disagree.
When reviewing a claim of insufficient evidence, this court reviews the record de novo.
People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). When determining whether
the prosecution has presented sufficient evidence to sustain a conviction, this Court must view
the evidence in a light most favorable to the prosecution and determine whether any rational trier
of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
The elements of first-degree home invasion are: (1) the defendant broke and entered a
dwelling or entered the dwelling without permission; (2) when the defendant did so, he intended
to commit a felony, larceny, or assault, or he actually committed a felony, larceny, or assault
while entering, being present in, or exiting the dwelling; and (3) the defendant was armed with a
dangerous weapon, or another person was lawfully present in the dwelling. People v Sands, 261
Mich App 158, 162; 680 NW2d 500 (2004); MCL 750.110a(2).
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Defendant only contests the sufficiency of the evidence with regard to the second element
of first-degree home invasion. He argues that there was insufficient evidence to convict him of
first-degree home invasion because he did not enter the victim’s home with the intent to commit
a larceny or other crime. It is clear from the plain language of the statute, however, that
defendant’s conduct constituted first-degree home invasion. The prosecution satisfied its burden
of establishing the second element of the crime by establishing beyond a reasonable doubt that
defendant actually committed an assault while he was present in the dwelling. The victim
testified that while defendant was in her home, he hit her with his fist twice, grabbed her and
pushed her without her permission. Defendant even testified that he pushed the victim while
they were arguing, and he does not contest his domestic assault conviction on appeal.
Defendant’s second argument on appeal is that the trial court abused its discretion in
scoring ten points for offense variable ten (“OV 10”). We disagree. This Court reviews a trial
court’s scoring decision for an abuse of discretion. People v Cox, 268 Mich App 440, 453-454;
709 NW2d 152 (2005). A sentencing court has discretion in determining the number of points to
be scored, provided that evidence of record adequately supports a particular score. People v
Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). Scoring decisions for which there is
any support will be upheld. Id.
OV 10 is “exploitation of a vulnerable victim.” MCL 777.40(1). The statute indicates a
score of ten where “the offender exploited a victim’s physical disability, mental disability, youth
or agedness, or a domestic relationship, or the offender abused his or her authority status.” MCL
777.40(1)(b). “‘Exploit’ means to manipulate a victim for selfish or unethical purposes.” MCL
777.40(3)(b). “‘Vulnerability’ means the readily apparent susceptibility of a victim to injury,
physical restraint, persuasion, or temptation.” MCL 777.40(3)(c). The trial court assessed
defendant a score of ten for this offense variable based on its conclusion that defendant exploited
a domestic relationship with the victim.
The record supports the court’s determination that a domestic relationship existed
between defendant and the victim. Noting that the statute does not define “domestic
relationship,” defendant argues that no such relationship existed between himself and the victim
at the time of the incident because they were no longer living together or dating, defendant did
not have a key to the victim’s house, and he needed her permission to enter. However, the
court’s finding that a domestic relationship existed because defendant and the victim have a child
together is consistent with the use of the word “domestic” elsewhere in Michigan’s criminal
code, as well as with the ordinary dictionary definition. A relationship is “domestic” for
purposes of the domestic assault statute where the victim is the defendant’s “spouse or former
spouse, an individual with whom he or she has or has had a dating relationship, an individual
with whom he or she has had a child in common, or a resident or former resident of his or her
household.” MCL 750.81(2) (emphasis added). In addition, Random House Webster’s College
Dictionary defines “domestic,” in part, as follows: “1. of or pertaining to the home, family, or
household affairs.” See People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997) (noting that,
where a statute does not expressly define a term, a court may consult dictionary definitions).
Defendant and the victim clearly have a familial relationship because they have a child together.
In addition, the victim testified that, at the time of the incident, defendant occasionally spent
nights at her house and that she never had a problem with him coming over to see the baby.
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The record also supports the court’s determination that defendant exploited his domestic
relationship with a vulnerable victim. By grouping “domestic relationship” with other categories
of obvious vulnerability (“physical disability, mental disability, youth, or agedness”), the statute
recognizes that domestic relationships themselves may create vulnerabilities. The record
supports the conclusion that defendant acted in a selfish and manipulative manner in the context
of his relationship with the victim as the baby’s father. After they had argued over the phone and
the victim had told him not to come over, defendant came to her house angry and intoxicated in
the early hours of the morning. He pounded on her door and then came into the house through
her bedroom window, even as she continued to tell him not to. He then grabbed the baby away
from the victim and held the baby as he pushed the victim and struck her with his fist.
The record in this case supports the trial court’s conclusion that a domestic relationship
existed between defendant and the victim and that defendant exploited that relationship through
his threatening and abusive conduct. Accordingly, the court’s scoring of OV 10 at ten points was
not an abuse of discretion.
Affirmed.
/s/ Jessica R. Cooper
/s/ William B. Murphy
/s/ Janet T. Neff
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