            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 14, 2019
               Plaintiff-Appellee,

v                                                                    No. 342247
                                                                     Wayne Circuit Court
DURELL LEE-RAY MONTGOMERY,                                           LC No. 17-001060-01-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        Defendant savagely beat and kicked another man at a gas station—for an extended period
of time—far past the point when the victim lay unconscious in a pool of his own blood. On
appeal, defendant challenges only the trial court’s scoring of offense variable 7. Because the
trial court did not err in concluding that defendant acted with sadism and excessive brutality, the
trial court properly assigned 50 points to offense variable 7. Therefore, we affirm defendant’s
sentences.

                                       I. BACKGROUND

        This case arose from a fight at a gas station in Detroit. The incident was captured by
three surveillance cameras recording from different angles. The video shows a man in a black
coat, identified at trial as defendant, standing at the cashier’s counter. Seconds later, a man in a
camouflage jacket, identified at trial as the victim, entered the gas station. After conversing at
the counter, the men moved toward the door. The victim pushed defendant, who pushed back.
The victim wrapped defendant in his arms as they continued to argue face to face. The victim
forcefully threw defendant to the ground, pinned him, and struck him.

        Defendant gained the upper hand and pinned the victim to the ground. Defendant struck
the victim with his fist about 30 times, then stood up and struck the victim several more times as
the victim tried to get his feet. The victim tried to push himself up on his hands and knees, but
defendant kicked him in the face seven times. Defendant began to stomp on the back of the
victim’s head as he fell back to the floor. Placing his hand on a counter to leverage his weight,



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defendant jumped on the victim’s head, landing with both feet. Defendant kicked the victim’s
head another eight times before jumping on his back with his full weight.

        After taunting the now unconscious victim and boasting of his handiwork to a customer,
defendant stomped on the victim’s head another five times before searching his pockets.
Defendant resumed taunting the unconscious victim, striking him a few more times, and
gesturing at him to get up. Defendant loitered near the counter for about another half hour,
talking to the cashier and passing customers. He smoked a cigarette and put it out on or near the
victim before leaving the gas station.

        The gas station’s cashier testified that he called 911 multiple times; he believed the
victim was dead. Police arrived to find the victim lying face down in a pool of blood, and
transported him to the hospital. Police arrested defendant across the street from the gas station.
His tan work boots were saturated with blood. According to the arresting officer, defendant
stated in response to questioning: “I have let people beat on me for too long . . . I just exploded.
Everything was built up, and I whipped his ass. I went too far, didn’t I?”

        At trial, defendant testified that he was homeless at the time of the incident. He claimed
that his continued attacks were inspired by fear that the victim, who was “stronger and bigger,”
would retaliate. He denied taking the victim’s wallet but admitted taking his phone. Defendant
denied that he intended to kill the victim.

        The victim testified that he had entered the gas station carrying a mobile phone, his
wallet, and his car keys. He recalled that he talked to defendant and that the two had shoved
each other. He then woke up in the hospital feeling “like somebody had walked on [his] face.”
His phone and wallet were missing. The victim was in the hospital for about six months.

       After a bench trial, the trial court acquitted defendant of assault with intent to commit
murder, MCL 750.83, but convicted him of assault with intent to do great bodily harm less then
murder (AWIGBH), MCL 750.84, and unarmed robbery, MCL 750.530.

        The trial court originally sentenced defendant, as a second-offense habitual offender,
MCL 769.10, to a term of 96 to 180 months in prison for AWIGBH, and a concurrent sentence
of 120 to 270 months in prison for unarmed robbery. Defendant appealed to this Court as of
right and thereafter filed a motion to remand, arguing that the trial court improperly assessed 25
points to offense-variable (OV) 6. The prosecutor agreed that OV 6 was improperly scored.
This Court, while retaining jurisdiction, remanded the case to the trial court to allow defendant
the opportunity to file a motion for rescoring of the sentencing guidelines and resentencing.
People v Montgomery, unpublished order of the Court of Appeals, entered October 10, 2018
(Docket No. 342247).

        On remand, the trial court granted the motion for resentencing and rescored all the
sentencing variables. See People v Rosenberg, 477 Mich 1076; 729 NW2d 222 (2007) (stating
that a case which has been remanded for resentencing is in a presentence posture). At the
resentencing hearing, the prosecutor requested that the trial court assess 50 points for OV 7 “for
aggravated physical abuse or brutality.” Defendant objected, arguing that he did not intend to
create fear and anxiety in the victim and that the victim could not have experienced fear and

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anxiety because he was unconscious during a portion of defendant’s assault. The trial court
rejected defendant’s argument, finding that “[i]t certainly was a gratuitous and totally
unnecessary attack that went on and on and on for the defendant’s own sadistic pleasure in my
view.”

        The trial court subsequently resentenced defendant, as a second-offense habitual
offender, to a term of 78 to 180 months in prison for AWIGBH, and a concurrent sentence of 96
to 264 months in prison for unarmed robbery. In his supplemental brief filed with this Court
after remand, defendant argues that the trial court violated his right to be sentenced in reliance on
accurately calculated guidelines when it assigned 50 points to OV 7.

                                          II. ANALYSIS

        The victim in this case was unconscious during some portion of defendant’s acts, and
defendant argues that a trial court may assess 50 points for OV 7 only if the victim is conscious
to experience fear, anxiety, pain, and humiliation. In addition, defendant argues that his acts
were not sadistic; he claims that he simply overreacted in fear of the victim’s preemptive
violence. Therefore, defendant claims that the trial court violated his right to be sentenced in
reliance on accurately calculated guidelines when it assigned 50 points to OV 7.

        “A defendant is entitled to be sentenced by a trial court on the basis of accurate
information.” People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). “Under the
sentencing guidelines, the circuit court’s factual determinations are reviewed for clear error and
must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438;
835 NW2d 340 (2013). A factual determination is clearly erroneous if this Court “is left with a
definite and firm conviction that an error occurred.” People v Buie, 491 Mich 294, 315-316; 817
NW2d 33 (2012) (cleaned up). “Whether the facts, as found, are adequate to satisfy the scoring
conditions prescribed by statute, i.e., the application of the facts to the law, is a question of
statutory interpretation, which an appellate court reviews de novo.” Hardy, 494 Mich at 438.

         OV 7, “aggravated physical abuse,” is governed by MCL 777.37. The statute provides
that a trial court must assign 50 points to OV 7 when a victim “was treated with sadism, torture,
excessive brutality, or similarly egregious conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” MCL 777.37(1)(a). The statute specifically
defines the term “sadism” to mean “conduct that subjects a victim to extreme or prolonged pain
or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL
777.37(3). The statute does not define the term “excessive brutality.” “[U]ndefined statutory
terms are to be given their plain and ordinary meaning, unless the undefined word or phrase is a
term of art,” and this Court must “consult a lay dictionary when defining common words or
phrases that lack a unique legal meaning.” People v Thompson, 477 Mich 146, 151-152; 730
NW2d 708 (2007), citing MCL 8.3a. “Excessive” means “exceeding what is usual, proper,
necessary, or normal.” Merriam-Webster’s Collegiate Dictionary (11th ed). “Brutal” means
“grossly ruthless or unfeeling.” Id.

      Defendant argues, relying on Hardy, 494 Mich at 443-444, that the relevant inquiries
when applying MCL 777.37(1)(a) are “(1) whether the defendant engaged in conduct beyond the
minimum required to commit the offense; and, if so, (2) whether the conduct was intended to

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make a victim’s fear or anxiety greater by a considerable amount.” Yet, the Hardy test is only
relevant when a court must determine whether the fourth “category of conduct” created by MCL
777.37(1)(a)—”conduct designed to substantially increase the fear and anxiety a victim suffered
during an offense”—applies to the case before it. Id. at 434. In this case, the trial court
concluded that defendant’s conduct constituted “sadism” or “extreme brutality”—the first and
third categories of conduct under MCL 777.37(1)(a). Consequently, the Hardy test is
inapplicable here.

        Even if the Hardy test did apply, defendant’s argument would be without merit.
Defendant relies on Judge Cooper’s dissent in People v Kegler, 268 Mich App 187, 192-193;
706 NW2d 744 (2005) (COOPER, J., dissenting), to argue that, for purposes of scoring OV 7, a
victim “must be alive and conscious to have fear and anxiety, to be subjected to pain and
humiliation, or to suffer.” Defendant argues that, because the victim was unconscious during
some portion of defendant’s attacks, the trial court could not assess 50 points for OV 7.
Defendant’s argument fails because the majority opinion in Kegler instructs precisely the
opposite: the plain language of MCL 777.37(1)(a) dictates that a trial court must score OV 7
based on how a victim was treated. Kegler, 268 Mich App at 191. The statute does not require,
for instance, that “a victim experienced . . . torture, or excessive brutality or conduct designed to
increase fear and anxiety,” and a trial court may assess 50 points for OV 7 even when a victim
“was not, in fact, aware of what was being done to him.” Id. (cleaned up). Therefore,
defendant’s legal arguments fail under Hardy and Kegler.

        Finally, defendant challenges the trial court’s factual determination that defendant acted
for his “own sadistic pleasure,” arguing that defendant “was not doing anything for his own
gratification, but was reacting, or over-reacting, to the aggression against him.” To the contrary,
the trial court reasonably inferred that defendant acted for his own gratification, given that the
surveillance video shows him taunting an unconscious victim and self-assuredly bragging to
passers-by. And, even if defendant is correct that “over-reacting” is incompatible with
“gratification,” the trial court still had sufficient evidence to conclude that defendant’s acts
qualified as “excessive brutality” under MCL 777.37(1)(a). In People v James, 267 Mich App
675, 680-681; 705 NW2d 724 (2005), this Court held that the defendant “treated the victim with
sadism, torture, [and] excessive brutality” when he “repeatedly stomped the victim’s face and
chest after the victim was lying unconscious on the ground.”

        The facts of this case are substantially similar to those in James, although the James
Court’s summation, that the defendant “punched the victim twice, causing the victim to fall to
the floor” and “stomped the victim several times,” would not come close to capturing the
excessive brutality of defendant’s acts in this case. See James, 267 Mich App at 677-688. The
ordinary meaning of excessive brutality is “grossly ruthless or unfeeling” and “exceeding what is
usual, proper, necessary, or normal.” Merriam-Webster’s Collegiate Dictionary (11th ed).
Defendant was recorded by surveillance cameras punching, kicking, stomping, and jumping on
the victim’s head. The victim was hospitalized for six months and became permanently disabled
due to his injuries. The trial court did not err in concluding that defendant acted with “sadism”
and “excessive brutality” under MCL 777.37(1)(a). The trial court correctly assigned 50 points
to OV 7. Defendant is not entitled to resentencing because the trial court correctly scored the
sentencing guidelines.


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Affirmed.


                  /s/ Michael J. Kelly
                  /s/ Karen M. Fort Hood
                  /s/ Brock A. Swartzle




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