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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
August 23, 2007
Shiawassee Circuit Court
LC No. 05-003008-FH
SACKDAVANH NOY PHRAXAYAVONG,
Before: Owens, P.J., and White and Murray, JJ.
After a jury trial, defendant was convicted of first-degree home invasion,
MCL 750.110a(2), and assault and battery, MCL 750.81. The trial court sentenced him to
40 months’ probation, with the first 12 months to be served in jail, for the home invasion
conviction, and to 93 days in jail for the assault and battery conviction. He appeals as of right.
Plaintiff cross-appeals, challenging defendant’s sentence for the home invasion conviction. We
affirm defendant’s convictions but remand for resentencing.
Defendant’s convictions arise from an incident that occurred on the night of July 17-18,
2005, when defendant entered the home of Tammy and Ryan Osborn and assaulted Daniel
Haljean. Defendant’s girlfriend, Lisa Humphrey, had told defendant that Ryan and Haljean had
sexually assaulted her on various occasions, and defendant apparently went to the Osborn
household to confront Ryan and Haljean regarding her allegations. Seven or eight other men
also entered the home, ostensibly to provide support and assistance to defendant. Ryan and
Tammy Osborn attempted to defend Haljean, but they were unsuccessful. Defendant punched
Haljean several times. Tammy’s brother, Louis Andy Zilla, and his fiancée, Carrie Miller, were
also in the home at the time and witnessed the events in question. Miller called the police, who
came to the house and arrested defendant. Haljean received cuts, bruises, and a black eye in the
fight. No other occupants of the home were injured.
Defendant argues on appeal that the trial court erred by admitting several hearsay
statements into evidence. We disagree. We review the trial court’s decision to admit evidence
for an abuse of discretion. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). A trial
court abuses its discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
Hearsay is defined as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
MRE 801(c); People v McLaughlin, 258 Mich App 635, 651; 672 NW2d 860 (2003). Hearsay is
not admissible except as provided by the rules of evidence. MRE 802; McLaughlin, supra.
First, defendant argues that Zilla’s testimony regarding a verbal exchange between
defendant and Haljean constituted impermissible hearsay. Zilla testified that Haljean asked
defendant, “Do you want to talk about this,” when defendant confronted him inside the Osborn
residence. However, the trial court did not admit this testimony to prove the truth of the matter
asserted (to show that Haljean wanted to talk about the matter), but to present what Zilla heard
and saw during the encounter (that when defendant confronted Haljean regarding Humphrey’s
allegations, Haljean asked defendant if he wanted to talk about the allegations). Further, this
evidence, offered for a non-hearsay purpose, is relevant because it supports the prosecution’s
claim that defendant assaulted Haljean and contradicts defendant’s claim that Haljean was acting
in an aggressive manner and that defendant fought him in self-defense. See MRE 402.
Zilla also testified that when defendant asked Haljean about the rifle he was holding,
Haljean replied with the statement, “This is all I need.” Defendant argues that this statement
constitutes impermissible hearsay. Again, however, this statement was not offered for its truth,
but rather to explain the series of events relating to the home invasion and assault charges,
including Haljean’s reactions to defendant’s conduct. The trial court did not err when it admitted
Zilla’s testimony for this purpose.
Defendant also argues that Miller’s testimony that Zilla, after opening the front door and
talking with defendant, told defendant to wait while he contacted Ryan constitutes impermissible
hearsay. Again, this statement was not offered for its truth (to indicate that defendant waited at
the door and that Zilla went to wake Ryan). Instead, this statement was offered for a non
hearsay purpose, namely, to show that he was not given permission to enter the Osborn
residence. In turn, evidence indicating that defendant was not invited in the Osborn residence is
relevant to establish an element of the home invasion charge.1 The absence of permission was
established by the fact that Zilla made the statement, independently of the factual content of the
statement. Accordingly, the trial court did not err when it admitted this statement for a non
To establish that defendant committed first-degree home invasion, the prosecution must
establish, among other elements, that defendant entered the dwelling without permission.
MCL 750.110a(2). “‘Without permission’ means without having obtained permission to enter
from the owner or lessee of the dwelling or from any other person lawfully in possession or
control of the dwelling.” MCL 750.110a(1)(c).
Further, defendant challenges the admissibility of a statement made by Tammy Osborn at
trial. Tammy testified that on the night of the home invasion, Humphrey made the following
comments to her: “[Defendant] was very angry at [Haljean] and [Ryan], that she had been trying
for months to stop him from responding to his anger, and that he was on his way to [the Osborn
residence] to take care of business.” However, the trial court admitted this testimony for a
proper non-hearsay purpose, namely, to explain the subsequent conduct of the residents of the
Osborns’ house. Accordingly, the admission of this testimony was not erroneous.
Finally, defendant claims that the trial court erroneously permitted Shawn Hanycz, an
officer with the City of Perry Police Department who responded to the scene, to testify that
Humphrey denied that either Ryan or Haljean raped her when he asked her about these
allegations. However, the trial court did not admit this statement to prove or disprove that Ryan
or Haljean sexually assaulted Humphrey. Instead, the trial court properly admitted this
testimony for a non-hearsay purpose, namely, to explain why Hanycz neither questioned Ryan
and Haljean regarding Humphrey’s allegations nor otherwise investigated her claims. Further,
Hanycz’s testimony is relevant to refute Humphrey’s testimony that Ryan and Haljean sexually
II. Prosecutorial Misconduct
Defendant argues that the prosecutor committed misconduct by referring to the foregoing
testimony in his closing and rebuttal arguments. We disagree. Because defendant did not
challenge the prosecutor’s remarks at trial, our review of this issue is limited to plain error
affecting defendant’s substantial rights. McLaughlin, supra at 645. Because the testimony was
properly admitted, the prosecutor’s reference to the testimony was not plain error.
III. OV 9
On cross appeal, the prosecutor argues that the trial court erred when it scored zero points
for offense variable (OV) 9 of the sentencing guidelines. We agree. “This Court reviews a
sentencing court’s scoring decision to determine whether the trial court properly exercised its
discretion and whether the record evidence adequately supports a particular score.” McLaughlin,
supra at 671. A trial court’s scoring decision will be upheld if there is any evidence in the record
to support it. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
MCL 777.39(1) provides that ten points should be scored for OV 9 if there were two to
nine victims, and zero points should be scored if there were fewer than two victims. The
sentencing court must count “each person who was placed in danger of injury or loss of life as a
victim.” MCL 777.39(2)(a); People v Morson, 471 Mich 248, 262; 685 NW2d 203 (2004).
The trial court determined that only Haljean was a victim for purposes of scoring OV 9
because the evidence showed that defendant only targeted him and did not exhibit assaultive
conduct toward any other person in the home. Although there is support in the record for the
trial court’s factual finding that only Haljean was targeted and that defendant did not intend to
harm anyone else, the proper inquiry under OV 9 is whether other persons were placed in danger
of injury during the incident. The trial court erred by failing to consider the evidence in this
According to the evidence presented at trial, defendant, aided by seven or eight other
persons, invaded the Osborns’ home to assault Haljean. The evidence showed that Ryan and
Tammy Osborn tried to make the intruders leave their home, that Ryan Osborn tried to pull
defendant off Haljean, and that Tammy Osborn tried to block the door to Haljean’s room. When
it addressed the scoring of OV 9, the trial court specifically found that other persons were present
in the house when defendant and his compatriots invaded it, and that Tammy and Ryan were in
proximity to defendant when he was attacking Haljean. Properly applied, these findings
establish that Haljean and at least two others were placed in danger of injury. Accordingly, there
were at least three victims for purposes of scoring OV 9. Therefore, the trial court should have
scored ten points for this offense variable. Because the scoring error affects defendant’s
sentencing guidelines range, we vacate defendant’s home invasion sentence and remand for
resentencing. People v Fransisco, 474 Mich 82, 91-92; 711 NW2d 44 (2006).
Defendant’s convictions are affirmed and the case is remanded for resentencing. We do
not retain jurisdiction.
/s/ Donald S. Owens
/s/ Christopher M. Murray