            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 24, 2019
               Plaintiff-Appellee,

v                                                                    No. 338514
                                                                     Livingston Circuit Court
JILL ANN TUCKER,                                                     LC No. 2016-023886-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        Defendant appeals as of right her jury trial convictions of interfering with a crime report,
MCL 750.483a(2)(b), tampering with evidence, MCL 750.483a6(a), using a computer to commit
a crime, MCL 752.796(1), MCL 752.797(3)(e), unlawful posting of a message, MCL
750.411s(2)(a), failure to stop at the scene of a personal injury accident, MCL 257.617a, lying to
a police officer, MCL 750.479c(2)(a), failure to stop at the scene of a property damage accident,
MCL 257.618, and violation of license restrictions, MCL 257.312. Defendant was sentenced to
2 years, 4 months to 10 years’ imprisonment for the interfering with a crime report, tampering
with evidence, and using a computer to commit a crime convictions, one year in jail for the
unlawful posting of a message conviction and failure to stop at the scene of a personal injury
accident, 93 days in jail for the lying to a police officer conviction, and 90 days in jail for the
failure to stop at the scene of a property damage accident and violation of license restrictions
convictions. We reverse, vacate defendant’s interfering with a crime report, unlawful posting of
a message, and using a computer to commit a crime convictions, and remand to the trial court for
resentencing on defendant’s remaining convictions.

                          I. RELEVANT FACTUAL BACKGROUND

       This case arises from a “hit and run” accident where defendant operated her employer’s
vehicle in violation of her license restrictions stemming from a prior OWI conviction, hit a
motorcyclist, and did not stop at the scene of the accident despite injury to persons and property.
Defendant subsequently sent nude photographs of her former coworker, via text-message, to
individuals she worked with and to Green Oak Township Police Officer Rick Ickes, a police
officer with whom defendant had been romantically involved. The coworker that defendant
circulated nude photographs of was a witness in the hit-and-run case. Additionally, Officer Ickes
was involved in the investigation of the hit-and-run, which eventually lead to the end of his
romantic relationship with defendant.

                                  II. BEST-EVIDENCE RULE

        Defendant first argues that the trial court abused its discretion in admitting testimony
about the nude photographs when the photographs themselves were not introduced into evidence
due to a discovery sanction. 1 Defendant claims that by admitting such testimony, the prosecution
was effectively allowed to circumvent the best-evidence rule found in MRE 1002. We agree.

        This Court reviews a decision to admit or exclude evidence for an abuse of discretion,
and reviews de novo whether a rule of evidence precludes the admission of evidence. People v
Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). However, “a preserved, nonconstitutional
error is not a ground for 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 Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999) (internal quotation marks
omitted).

        MRE 1002 provides that “[t]o prove the contents of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except as otherwise provided in these
rules or by statute.” “An ‘original’ of a writing or recording is the writing or recording itself or
any counterpart intended to have the same effect by a person executing or issuing it.” MRE
1001(3). However, “[t]he original is not required, and other evidence of the contents of a
writing, recording, or photograph is admissible if[,]” among other reasons, “[a]ll originals are
lost or have been destroyed, unless the proponent lost or destroyed them in bad faith . . . .” MRE
1004(1).

        In order to prove the contents of the photographs sent by defendant, the original
photographs were required unless they had been lost or destroyed. Here, the photographs were
neither lost nor destroyed: the prosecution failed to produce them until trial. Accordingly, the
trial court excluded the photographs as a discovery sanction. However, over defendant’s best-
evidence rule objections, the trial court admitted testimony from defendant’s coworker that she
recognized “nude photographs” of herself that had been sent to other coworkers. Defendant’s
coworker never actually received the photographs from defendant; she only identified herself as
the subject of the photographs sent to other people. Additionally, the trial court admitted
testimony from other witnesses who stated that they had received “nude photographs” via text
message, and from Officer Ickes who testified that defendant had sent him “nude photographs.”



1
  We note that the actual photographs sent by defendant were excluded from evidence as a
discovery sanction, where the prosecution failed to comply with the trial court’s expectations for
discovery. However, whether the suppression of the photographs was an abuse of the trial
court’s discretion is not an issue before this Court, and therefore will not be addressed.


                                                -2-
        We conclude that the trial court abused its discretion by admitting the aforementioned
testimony, as it allowed the prosecution to have the content of the excluded photographs
admitted into evidence despite MRE 1002 and the trial court’s own ruling excluding the
photographs. Where the photographs were neither lost nor destroyed, the prosecution was
required to present the actual photographs in order for their contents – i.e. that they were nude
photographs – to come into evidence. We further conclude that this abuse of discretion amounts
to reversible error. Without the admission of the contents of the photographs, the prosecution
did not have sufficient evidence to support defendant’s convictions of unlawful posting of a
message and using a computer to commit a crime. Without the testimony regarding the content
of the photographs, it is more probable than not that defendant would have been acquitted of
interfering with a crime report, unlawful posting of a message and using a computer to commit a
crime. Accordingly, we vacate only those three convictions.2

       We reverse, vacate defendant’s interfering with a crime report, unlawful posting of a
message, and using a computer to commit a crime convictions, and remand to the trial court for
resentencing on defendant’s remaining convictions. We do not retain jurisdiction.



                                                           /s/ Kathleen Jansen
                                                           /s/ Michael F. Gadola




2
  Because we are vacating defendant’s unlawful posting of a message and using a computer to
commit a crime convictions based on MRE 1002, we need not address the remaining issues
raised by defendant on appeal


                                               -3-
