People v. Foster, 2015 Mich. App. LEXIS 1012 (Mich. Ct. App. May 19, 2015):

Defendant, Tamaine Lamanual Foster, appeals as of right his jury trial convictions of first-degree felony murder, MCL 750.316(1)(b); armed robbery, MCL 750.529; being a felon in possession of a firearm, MCL 750.224f; possession of a firearm during the commission of a felony, MCL 750.227b; and three counts of assault with intent to do great bodily harm less than murder, MCL 750.84. We affirm.

I. FACTS

This case arises out of an armed robbery that occurred on the night of December 29, 2013, at a residence in Grand Rapids, Michigan.

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III. EVIDENTIARY ISSUES

Next, defendant argues that the trial court erred by admitting the YouTube video¹ and testimony regarding the November 16, 2012 and December 8, 2012 incidents. We review the trial court's decisions regarding the admissibility of evidence for an abuse of discretion. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). "However, where decisions regarding the admission of evidence involve preliminary questions of law such as whether a rule of evidence or statute precludes admissibility, our review is de novo." Id. "A preserved error in the admission of evidence does not warrant reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013) (citation and quotation marks omitted).

1   Defendant's brief on appeal references "You[T]ube videos," implying that there were multiple YouTube videos admitted into [*9]  evidence. Such an assertion is mistaken. The record reveals only one YouTube video was offered and admitted at trial. Although there were other videos admitted into evidence at trial, defendant's brief only raises arguments about the YouTube video described herein.

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B. YOUTUBE VIDEO

Defendant next argues that the trial court erred by admitting the YouTube video of him rapping with PBI. The majority of the rap is performed by someone using the pseudonym "Vic the Villain"; it was established at trial that this individual was not one of the men alleged to have participated in the robbery and shooting at Cherry's house. Defendant, along with Latham, Hureskin, and Slaughter, appear in the video, as do numerous unknown individuals. At times, defendant's face and the faces of his alleged accomplices were covered by bandanas that were alleged to have been similar to the ones used in the shooting and robbery at issue. The gist of the song, which is entitled "Getting Doe," is about money, cars, guns, using drugs, shooting individuals, and sexual encounters. The song makes no mention of armed robbery. Defendant [*13]  is either rapping in the background or dancing in the background for most of the song. However, towards the end of the song, he begins to rap on his own. He raps about being "strapped up" with a "45" and raps about people being "merked" or murdered. No weapons appear in the video. The trial transcripts indicate that the video was uploaded to YouTube in May of 2012.

Defendant objected to the admission of the YouTube video before trial. The prosecutor argued that the video was relevant because it showed defendant and his alleged accomplices covering their faces with bandanas in a manner that was similar to the manner in which they were covered during the charged offenses. The trial court admitted the video, explaining, in light of defendant's objections, "it may demonstrate a musical rendition by the defendant and his confederates of the intent of which they planned and enacted the offenses which are the subject of the current trial." During his opening statement, the prosecutor mentioned the rap video, stating that "[o]ne of their favorite raps . . . is to rap about how they like to get their money and their jewelry, and you will see how they like to do it because in the videos they're rapping [*14]  about murder, they're rapping about armed robberies . . . ." In closing argument and rebuttal, the prosecutor again mentioned the video, stating that the video showed the motive and intent of those--including defendant, who were involved in the robbery and shooting at Cherry's house:

   Most musicians rap about something that's personal to them, whether it's a personal love story, whether it's things they've done in their lives. That's what they sing about, at least the one's [sic] that write their own lyrics. What are these guys singing and rapping about? What they do [sic] on December 29th. And yes, this predates it, but that's their motive, that's their intent. That's why we showed the video.

Defendant argues that the video was irrelevant and unfairly prejudicial. We agree. In evaluating this issue, we note that the bulk of defendant's argument consists of his contention that the videos were inadmissible under MRE 401 and 403. In evaluating this issue, we consider the evidence under MRE 401 and 403 because it involves defendant's statements, not acts, and conclude that defendant is correct. Thus, we do not consider the video within the context of MRE 404(b).³ See People v Goddard, 429 Mich 505, 514-515; 418 NW2d 881 (1988) (evaluating a defendant's statements under MRE 401 and MRE 403 only). [*15]  Instead, the statements, at least the ones in the video made by defendant, fall into the hearsay exception for statements of a party opponent, see MRE 801(d)(2), "the admissibility analysis involves instead first determining whether the statement was relevant, and second whether" the probative value is substantially outweighed by the danger of unfair prejudice. Id. at 515, citing MRE 401 and 403. We begin by examining the specific facts of this case. See United States v Long, 774 F3d 653, 665 (CA 10, 2014) (explaining that the admissibility of song lyrics and other artistic works "is a recurring one in the courts, with the ruling turning on the specific facts of the case.").

3   We note that some jurisdictions deal with similar issues under rules of evidence that are similar to MRE 404(b), see, e.g., State v Skinner, 218 NJ 496; 95 A3d 236 (2014), while some jurisdictions do so under theories of general relevancy and whether that relevancy is substantially outweighed by the danger of unfair prejudice, i.e., rules of evidence that are similar to MRE 401 and 403, see, e.g., Joynes v State, 797 A2d 673, 677 (Del 2002) ("Writing a rap song is not a bad act."). While these cases are not binding on this Court, we may look to them as persuasive authority. See People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).

"Evidence is relevant when it has a tendency to make a material fact more or less probable." People v Benton, 294 Mich App 191, 198; 817 NW2d 599 (2011) (citation and quotation omitted). [*16]  See also MRE 401. Here, while the evidence may have been probative to show that defendant associated with his cohorts and that they wore masks similar to the kind used in the commission of the instant offenses, it was not probative of defendant's intent and motive, as was argued by the prosecution at trial. Defendant's statements in the rap video did not reveal any details about the charged offenses. Nor did they share any characteristics about the charged offenses, aside from the fact that defendant's rap spoke generally about violent crimes and carrying a weapon. However, the weapon about which defendant rapped was a "45," or .45-caliber handgun; this was a different caliber weapon than the weapons that were alleged to have been used in the instant offenses. At most, the statements about carrying a firearm and people getting "merked" have a tangential relationship to the instant offenses that can hardly be characterized as relevant. Cf. Long, 774 F3d at 664-665 (holding that evidence of the defendant's photograph on a rap CD entitled "Cokeland" was admissible because it increased the likelihood that the cocaine found next to the CD belonged to defendant); United States v Stuckey, 253 Fed Appx 468, 482-483 (CA 6, 2007) (holding that the trial court did not err when admitting [*17]  rap lyrics because the lyrics described killing "snitches," wrapping them in blankets, and dumping the bodies in the street, which was "precisely what the Government accused [the defendant] of doing . . . in this case."). Indeed, defendant's statements in the video were nothing more than general assertions about obtaining money, carrying weapons, and, in general, acting tough. The statements appear to be nothing more than "an exercise in machismo," not statements that were relevant to defendant's intent or motivation to commit the charged offenses. See Goddard, 429 Mich at 520.

Moreover, we note, for purposes of determining whether the video was probative of defendant's motive and intent on December 29, 2012, that the video was uploaded to YouTube in approximately May 2012. The connection between the statements of general intent in the YouTube video--which made no discernible reference to committing armed robberies--is thin, at best, given that the statements were made several months before the charged offenses and bore no discernible connection to the offenses. This flimsy connection is stretched even thinner in light of the testimony offered at trial, which is that defendant and his cohorts came up with the [*18]  plan for the robbery on the night of the robbery because they were looking to obtain money to fund their impending New Year's Eve celebration. This testimony tends to negate any assertion that defendant formed the intent to commit the instant offenses back in May 2012.

Furthermore, to the extent the evidence had some probative value for the purpose of showing defendant's motive and intent, such marginal probative value was substantially outweighed by the danger of unfair prejudice to defendant. See MRE 403. The rap video was highly inflammatory. It was rife with profanity, misogynistic lyrics, drug references, and general references to violent and offensive behavior. And, defendant did not even rap for the entire song; an individual who was unrelated to the charged offenses performed most of the song, with defendant only rapping in the background or simply dancing to the music. Any marginal relevance was substantially outweighed by the danger of unfair prejudice. See MRE 403. See also Goddard, 429 Mich at 521.

However, although defendant has demonstrated that the YouTube video was inadmissible, he is not entitled to relief. "A preserved error in the admission of evidence does not warrant reversal unless after an examination [*19]  of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." Burns, 494 Mich at 110 (citation and quotation marks omitted). Given the strength of the evidence presented against defendant, we do not conclude that it was more probable than not that the error was outcome determinative. Grover and Latham testified that defendant was involved in planning the robbery of Cherry's house. Harris and Woods, two of the shooting victims, testified that they were familiar with defendant and that they saw him enter Cherry's basement. Harris, who recognized defendant's face and his distinct limp, testified that defendant was firing a handgun. In addition, Latham testified that defendant accompanied him to Cherry's house and that defendant shot at the occupants of the basement. In sum, two witnesses testified that defendant was involved in planning the robbery that preceded the shooting and three witnesses testified that they saw defendant in the home on the night of the shooting. In addition, the evidence concerning Eddie connected defendant to one of the firearms used in the shooting. In light of this evidence, defendant is not entitled to reversal. See [*20]  id. See also People v Lukity, 460 Mich 484, 497; 596 NW2d 607 (1999).