State v. Montgomery
| Decision Date | 17 January 2023 |
| Docket Number | 83517-3-I |
| Parties | STATE OF WASHINGTON, Respondent, v. COREY DAMON MONTGOMERY, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Corey Montgomery was convicted on multiple charges related to two domestic violence incidents with his girlfriend, M.C Montgomery appeals his convictions for assault in the second degree, domestic violence (count 1), domestic violence felony assault in the fourth degree (count 2), domestic violence felony violation of a court order (count 4), and assault of a child in the third degree (count 5). First, Montgomery argues his convictions on counts 1 and 2 violate double jeopardy. The State concedes that count 2 should be vacated. Second Montgomery argues that his conviction on count 4 should be vacated because the State failed to prove all elements of the crime and the information omitted an essential element of the crime. The State concedes that count 4 should be vacated. Montgomery also argues there was insufficient evidence to convict him on count 5. We disagree. Montgomery raises additional claims challenging his convictions in a statement of additional grounds (SAG). We accept the State's concessions and vacate counts 2 and 4 and remand for resentencing. We otherwise affirm.
On November 25, 2019, Federal Way Police responded to a report of domestic violence at an apartment complex. When they arrived, maintenance staff, Jeremy Choppin, flagged the officers down. Choppin explained that he had been changing locks in the complex when he heard a child crying and yelling for help. Choppin saw the child who appeared scared and the child stated, "he's hurting my mom." Choppin then saw a woman in the window of the apartment, crying and holding herself. When Choppin asked if she was ok, the woman responded, "he laid his hands on me." Choppin persuaded the woman to come out of the window. Choppin saw a man leave the apartment and walk towards the manager's office.
The officers met with M.C. who was shaken and upset. M.C. reported that she was currently 21 weeks pregnant with Montgomery's child and that he was staying with her and her five-year-old son, I.B., a few nights a week. M.C. reported that Montgomery wanted to have sex that morning, while she did not, and he kept putting his hands inside her underwear. While M.C. was making breakfast for I.B., Montgomery followed her, poked her in the face, and pushed her in the chest. When M.C. pushed his hands away, Montgomery grabbed her by the neck with both hands, choking her. Montgomery continued to choke her for three to four minutes.
The officers observed scratches on M.C.'s lower neck and upper chest, light bruising and petechiae on her neck, and some neck swelling. M.C. was crying and sweating, and her face was red and flushed. M.C. told the officers she was scared, had difficulty swallowing, was dizzy, disoriented, and had neck pain.
South King Fire and Rescue responded and treated M.C. at the scene. Firefighter Tyler Wilkins observed what he identified as petechial hemorrhaging on M.C. that was consistent with strangulation.
As a result of this incident, Montgomery was charged with assault in the second degree, domestic violence (count 1), and domestic violence felony assault in the fourth degree (count 2). A no-contact order was put in place protecting M.C. from Montgomery.
Unbeknownst to his case worker, and while on electronic home detention because of the November incident, Montgomery moved in with M.C., I.B., and their mutual child O.M.
On May 15, 2020, neighbors heard yelling, crying, and banging coming from inside M.C.'s apartment. Neighbors heard a child crying and yelling, "Get off my mama!" They also heard M.C. yelling, "why" and "why did you hit him." Multiple neighbors and the apartment manager called 911.
M.C. told the responding officer that afternoon Montgomery and M.C. were in an argument. Montgomery was in the kitchen making cannabis edibles. M.C. dropped a bag of Montgomery's cannabis and he grabbed her arm. When M.C. asked Montgomery to leave, he grabbed her with his right arm around her neck in a triangle hold. They wrestled for about two minutes. Then, Montgomery flipped M.C. onto the ground and strangled her for about 20 seconds. Montgomery taunted M.C., asking, "Do you still want me to leave," and telling M.C. he would kill her. I.B., then six-years-old, ran up and tried to stop Montgomery from strangling M.C. Montgomery punched I.B. in the face.
M.C. exited the apartment with I.B. and O.M. Witnesses saw that I.B. was crying and that he had a gash on his forehead. M.C. was visibly upset and yelled, M.C. got into Montgomery's car with the children. Montgomery exited the apartment with a bag, approached the car, and pulled on the door. When Montgomery put his hand in the open window, M.C. drove off. Montgomery hung onto the car as it sped around the parking lot, eventually falling off.
Federal Way Police Officers and South King Fire and Rescue arrived at the scene. Officer Dustin Connolly spoke with M.C. and observed M.C.'s demeanor as "in shock," meek, and very afraid. M.C.'s voice was scratchy and she kept bringing her hands to her throat. Officer Connolly saw "quite a substantial looking bump" on I.B.'s forehead.
M.C. reported to Fire Lieutenant Walter Hanks that she had neck pain and a headache, that she had been strangled for about 20 seconds, and briefly lost consciousness. Hanks observed marks and scratches around M.C.'s neck. I.B. had a small laceration on his forehead. I.B. told Hanks that he was punched by an adult male and had "a little bit of pain in his head."
I.B. was transported to St. Francis Hospital and treated by Dr. Andrea Drenguis. M.C. reported to Dr. Drenguis that I.B. had been struck in the head by his father with his fist and that I.B. had a previous injury to his forehead from about six months before. Dr. Drenguis saw signs of a scar in the middle of I.B.'s forehead with the new injury in the same area. It appeared to Dr. Drenguis that the previous injury had re-opened. While I.B.'s prior injury was minor enough that a skin adhesive, dermabond, had been used to close the wound, the new injury was a "gaping wound" that could not be treated with dermabond alone. Dr. Drenguis used a suture and dermabond to repair I.B.'s wound. Dr. Drenguis described I.B.'s injury as consistent with blunt force trauma.
Meanwhile, Montgomery barricaded himself inside the apartment. Montgomery called M.C.'s mother, admitted that he had physically abused M.C., and told her that he had cut himself. M.C.'s mother called 911 to report what Montgomery had told her.
Valley SWAT team and crisis negotiator Officer Heather Castro responded to the scene. Castro contacted Montgomery. About 15 minutes after Castro began speaking with Montgomery, she, and other officers, noticed black smoke coming out of the apartment. The smoke became thicker and heavier causing firefighters and police to evacuate the building. When Castro asked Montgomery about the smoke, he told her he was smoking. Montgomery was coughing and indicated that he couldn't see because of the smoke. Montgomery finally exited through the sliding glass door where officers placed him in custody.
Montgomery was transported to the hospital because of self-inflicted injuries. At the scene and the hospital, Montgomery was combative towards officers, coughing in the face of one officer and calling her a "bitch," trying to kick another officer in the face, issuing threats, and spitting in a detective's face and eyes.
King County Fire Investigator Steven Crown investigated the cause of the fire. Based on his observations, Crown determined that the fire originated from a pile of clothes on the living room floor. Crown conducted several experiments to rule out possible causes of the fire. After those experiments, Crown concluded that the fire was an incendiary fire, that was intentionally started with an open flame in the living room.
Crown estimated $25,000 worth of damages to the apartment. The laminate floor in the living room was damaged, blistered, charred, and partially consumed, there was smoke and heat damage to the ceiling of the entire apartment building, the smoke alarm was damaged, and the exterior of the building was damaged. As a result, the apartment was deemed unsafe to occupy. Substantial repairs had to be made and it was two months before the apartment could be rented again.
As a result of the May incident, Montgomery was charged with assault in the second degree, domestic violence (count 3), domestic violence felony violation of a court order (count 4), assault of a child in the third degree (count 5), arson in the first degree (count 6), and assault in the third degree (count 7). Montgomery was also charged with tampering with a witness (count 8), and three counts of domestic violence misdemeanor violation of a court order (counts 9, 10, and 11).
Montgomery waived his right to a jury trial and agreed to consolidate the two cases. After a bench trial, Montgomery was convicted on all 11 counts. Montgomery appeals.
Montgomery argues his convictions on counts 1 and 2 violate double jeopardy. The State concedes that count 2 should be vacated. We accept the State's concession and vacate Montgomery's conviction for domestic violence felony assault in the fourth degree.[1]
The double jeopardy clauses of the state and federal constitutions protect against multiple punishments for the same offense. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). Whether multiple punishments constitute double jeopardy is a question of law reviewed de novo. State v. Daniels, 160 Wn.2d 256,...
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