Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was sentenced to a term of eighty-six months to fifteen years’ imprisonment and appeals as of right. We affirm._
*205 Defendant and his wife were in the midst of a divorce. There was a restraining order prohibiting defendant from entering the marital home and "from removing any personal property” from the home. The locks on the doors had been changed.
Defendant admits that he broke into the home by pushing against the back door until it separated from its frame. He also admits that he removed personal property from the home, some of which was his own, but which he admits was covered by the restraining order. He nevertheless argues that there was insufficient evidence of larcenous intent because he took the property under a claim of right. We view clаims of insufficiency of the evidence in the light most favorable to the prosecution.
People v Petrella,
Larceny requires an intent to take and carry away someone else’s property without that person’s consent.
People v McFarland,
Here, the evidence showed that defendant was prohibited by a court order from entering the marital home and frоm removing personal property found therein. Therefore, defendant’s testimony — that he, in good faith, believed that he had a right to take the property in question even though he was fully aware of the restraining order —created a question of fact for the jury regarding the issue of felonious intent. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant’s belief was not held in good faith and that he therefore had the requisite felonious intent. Defendant’s argument with regard to the claim of right was placed before the jury, which obviously rejected it.
Defendant next argues, relying on the spousal testimonial 1 privilege statute, that he was denied a fair trial when his wife was allowed to testify. We disagree.
Section 2162 of the Revised Judicature Act, MCL 600.2162; MSA 27A.2162,
bars one spouse from testifying for or against the other without the other’s consent except in (1) actions for divorce, (2) prosecutions for bigamy or for a crime committed against the children of either or both, (3) actions growing out of a personal wrong or injury done by one to the other or the refusal or neglect to furnish the spouse or children with suitable support, (4) cases of desertion or abandonment, and (5) certain cases relating to marriage and title to property. [People v Ha *207 macher,432 Mich 157 , 161;438 NW2d 43 (1989); emphasis added.]
Defendant contends that he merely committed a property crime, not "a personal wrong or injury done by one [spouse] to the other” and that, therefore, his wife could not be called to testify. We strongly disagree.
Clearly, this exception applies to obviously personal crimes committed against a spouse, such as attempted murder, kidnapping, criminal sexual conduct, and felonious assault. See, e.g.,
People v Love,
*208
Here, defendant broke into the marital home, damaged the door frame, and took not only his personal property, but also joint property and property belonging to his wife.
2
He did this knowing that it would violate a restraining order. As in
Butler,
defendant did more than "wound the feelings or annoy or humiliate.” He clearly interfered with his wife’s right of possession arising from the restraining order. See
Szpara, supra
at 273-274. He also interfered with her right of peaceful habitation, causing her to change the locks and phone number, vacate the home, and seek psychological help. See
People v Winhoven,
In our opinion, defendant’s conduct constitutes "a personal wrong or injury” against his wife. As in
Butler,
"we reject a contrary interpretation as illogical and unreasonable.”
[i]f the wife could not complain of or be a witness against her husband in these cases, she might not unfrequently (sic) be subjected to thе most atrocious and brutal conduct from her husband without remedy. Not only the ends of justice, but public policy alike, require that she should be at liberty to complain and prosecute as if she were a feme sole in criminal cases. The law will not allow the marriage relation to be so used as to рrotect the criminal, or shield him from the just penalty *209 for his crime. [People v Sebring,66 Mich 705 , 707;33 NW 808 (1887) (involving an assault with intent to do great bodily harm) (quoted approvingly in Butler, supra at 440-441).]
Defendant’s wife was properly allowed to testify.
Finally, defendant argues that his minimum sentence of eighty-six months violates the principle of proportionality announced in
People v Milbourn,
Under Milbourn, "[w]here there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines.” Id. at 659-660. Thus, "in thе absence of factors not adequately reflected in the guidelines^ a departure] should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and abused its sentencing discretion.” Id. at 660. Further, "[e]ven where sоme departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality.” Id.
Thus, in determining the proportionality of a minimum sentence that exceeds the range recommended by the guidelines, an appellate court should ask: "What unique facts exist that are not already adequately reflected in the guidelines, and why do such facts justify any departure from the guidelines?” and "If there is to be a departure, what should be its magnitude аnd the justification for the specific departure imposed?”
People v Harris,
Milbourn
identifies "the prior relationship . . . between the victim and the offender” as an "important sentencing factor . . . not included in the sentencing guidelines.”
In Milbourn, the defendant was sentenced to a term of ten to fifteen years after being found guilty of breaking and entering into the apartment he shared with his former girl friend with intent to maliciously destrоy her property. Id. at 634. The Court found that the prior relationship between the parties was not an aggravating factor because the defendant’s "apparent purpose [was] making an emotional and destructive statement about the breakup” and his acts "were visited against property rather than persons.” Id. at 667-668. The Court especially noted that, although the defendant had engaged in several hostile acts in the week or so following the breakup, he "did not have a long history of hostile acts against the complainant, and he had not at the time of this оffense engaged in other malicious behavior toward the victim.” Id. at 634, 668. The Court also noted that "the Legislature has determined to visit the stiffest punishment against persons who have demonstrated an unwillingness to obey the law after prior encounters with the criminal justice system” and that imposing the highest рenalty available upon a young person with no criminal record "left *211 no room for” imposing a stiffer sentence "on an offender convicted of a breaking and entering who has a previous record for this kind of offense or whose criminal behavior is more aggravated than in Mr. Milbourn’s case.” Id. at 668-669.
In contrast, defendant in this case did not take the property to make some sort of "emotional statement” about the impending divorce. Rather, he admitted that he took the property to sell or keep, in knowing violation of the restraining order. Further, he took his wife’s phone bill because he wanted her new phone number so that he could call her, again in violation of the restraining order.
Additionally, defendant had a long history of hostile acts against his wife and her children. For example, during a prior unauthorized entry, defendant brandished a knife before his sixteen-year-old stepdaughter after she surprised him inside the house. During that same entry, defendant took his wife’s phone bill and called all the numbers she had called on the day she filed for divorce. Defendant admitted that, on another occasion, he smashed the leg of a chair on a tаble, apparently in an attempt to intimidate his wife. These incidents belie defendant’s assertion that he merely committed a property crime.
Further, because these incidents had been occurring throughout the six-month pendency of the divorce proceedings, defendant’s behavior could not be considered "essentially one episode of irrational and destructive behavior,” but rather part of a pattern of hostile and malicious behavior against his estranged wife. See Milbourn, supra at 669. We thus conclude that defendant’s prior relationship with the victim constituted а "very aggravating circumstance” that was not considered un *212 der the guidelines and that justified a departure from the guidelines. See id. at 660-661.
During sentencing, the trial court justified the minimum sentence of seven years and two months by indicating that defendant had repeatedly violated the restraining order and had bеen held in contempt, and that his "history convinces the Court that he will do so again.” The court noted that "it took a substantial risk in continuing [defendant’s] bond” after he was convicted of unauthorized entry and felonious assault of his stepdaughter, believing that defendant would accept the judgment of аn impartial jury. Instead, defendant absconded before sentencing and committed this offense.
The court noted that defendant continued to refuse to take responsibility for his actions and instead blamed his conviction on what he perceived to be incompetence of his trial counsel and on the unfairness of the trial judge. The court also pointed out that defendant had admitted being violent on at least one occasion, when he broke the chair leg. 4 The court found that defendant constituted "a clear and present danger to his wife and family” and notеd that the felonious assault conviction resulted from an "unauthorized entry that went bad.” The court also noted that defendant had an alcohol and drug abuse problem that he had not controlled and that caused him to "lose his inhibitions.” The court concluded that the sentence was proportional because of the enormous emotional damage done to the victim and to her daughter, because of the repetitive nature of *213 the offense, and because of defendant’s lack of remorse. Its major goal, however, was to protect defendant’s wife and her children.
We believe that the trial court sufficiently justified not only the fact of a departure but also its degree on the basis of factors not adequately considered under the guidelines. The zero to one-year minimum sentence recommended by the guidelines would have been a mere slap on the wrist in a case like this and would likely have been ineffective in deterring defendant from his abusive course of conduct. We also note that the sentence imposed in this case, unlike the one at issue in Milbourn, leaves room to impose a harsher sentence оn defendants with longer prior records or where the circumstances of the felony intended are more aggravated. 5 Defendant’s sentence, though admittedly quite severe, is not disproportional under the circumstances of this case.
Affirmed.
Notes
This case does not involve the marital communications privilege. See the last clause of MCL 600.2162; MSA 27A.2162.
Defendant removed his tools, two guns, two radios, a camera, a picture, part of his wife’s phone bill, and the keys to his motorcycle.
We need not discuss the first question in the Harris test — “If the sentence is to be within the guidelines, where in the guidelines range should the sentence fall?” — beсause the trial court had already chosen to depart from the guidelines.
During sentencing, defendant’s wife alleged other instances of drunken violence, but the trial court chose not to hold an evidentiary hearing to resolve defendant’s objections and, by agreement with counsel, оnly considered the wife’s testimony as demonstrating "the degree of damage that has been done to her as an individual by this person’s repeated failure to follow the law.”
Under
People v Tanner,