Admission of a Facebook video; MRE 403; Relevance; MRE 401; People v Mills; Materiality; Intent element of AWIM; “Probative force”; “Unfair prejudice”; Sufficient evidence for an AWIM conviction; PSIR accuracy challenge; Sentencing, Scoring of OV 3; MCL 777.33(1)(c); “Life-threatening”; “Bodily injury”; People v Rosa

The court held that the trial court did not abuse its discretion in admitting the Facebook video at issue and that there was sufficient evidence to support defendant’s AWIM conviction. It also upheld the trial court’s 25-point score for OV 3. But it remanded for the trial court to resolve his challenge to the accuracy of the PSIR. He was also convicted of felonious assault and felony-firearm. Several months after the incident giving rise to the case, while he was released on bond, he “created a Facebook Live video in which he appeared to threaten” the victim (J). He argued that the trial court abused its discretion in admitting the video “because it was filmed approximately 6 months after the shooting and its probative value was thus substantially outweighed by the danger of unfair prejudice under MRE 403.” The court noted that his “intent constituted a central issue at trial.” It concluded that his “statements in the video, specifically the assertion that he would kill the victim ‘again,’ support an inference that defendant harbored the intent to kill at the time of the initial shooting—despite the video having been recorded months after the incident. As the evidence bears directly on the issue of defendant’s specific intent regarding the AWIM charge,” it qualified as “material” under Mills. The court further found “no indicia of unfair prejudice arising from the video’s admission.” As to the sufficiency of the evidence, in addition to the video the prosecution presented “uncontroverted proof that defendant discharged a firearm, striking [J]. Under Michigan law, the intentional use of a deadly weapon, such as a firearm, is sufficient to support an inference of intent to kill.” The prosecution agreed with defendant that the trial court erred in not holding a hearing or making “any factual finding when defense counsel challenged the inclusion of information in the PSIR indicating that defendant had gang affiliations.” But it rejected his challenge to the scoring of OV 3, holding that a preponderance of the evidence supported that J’s “injuries were life-threatening or permanently incapacitating.” The court affirmed defendant’s conviction and sentence but remanded as to the PSIR.