                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 25, 2018
               Plaintiff-Appellee,

v                                                                   No. 337657
                                                                    Oakland Circuit Court
JOSEPH JOHN LESNESKIE,                                              LC No. 2016-258898-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions for first-degree murder, MCL
750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Defendant was sentenced as a second habitual offender, MCL 769.10, to life
imprisonment without the possibility of parole for the first-degree murder conviction and two
years’ imprisonment for the felony-firearm conviction. We affirm.

        Defendant first contends that he is entitled to a new trial because overly grotesque
pictures taken of the victim during her autopsy were admitted at trial, and the pictures inflamed
the jury against defendant. Defendant contends that the probative value of the three photographs
at issue was substantially outweighed by the danger of unfair prejudice, and specifically, that the
photographs had little probative value because the relevant information contained in them was
presented through the testimony of the medical examiner. We disagree.

         We review for an abuse of discretion a trial court’s decision to admit evidence including
photographs. People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod on other grounds
450 Mich 1212 (1995). “An abuse of discretion occurs when the court chooses an outcome that
falls outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich App
210, 217; 749 NW2d 272 (2008). “A trial court “abuses its discretion when it makes an error of
law in the interpretation of a rule of evidence.” People v Jackson, 498 Mich 246, 257; 869
NW2d 253 (2015). Preserved non-constitutional evidentiary error is presumed to be harmless
“unless it affirmatively appears that, more probably than not, it was outcome determinative—i.e.,
that it undermined the reliability of the verdict.” Id. (citation and quotation marks omitted).

       In general, all relevant evidence is admissible at trial. People v Aldrich, 246 Mich App
101, 114; 631 NW2d 67 (2001); MRE 402. “ ‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
                                                -1-
action more probable or less probable than it would be without the evidence.” MRE 401. In
determining whether evidence is relevant, a court must consider its materiality and the probative
force. People v Brooks, 453 Mich 511, 517-518; 557 NW2d 106 (1996). Materiality “is the
requirement that the proffered evidence be related to ‘any fact that is of consequence’ to the
action.” Mills, 450 Mich at 67. “Probative force is the ‘tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.’ ” Id. at 67, quoting MRE 401.

       Under MRE 403, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice” or if the evidence constitutes
“needless presentation of cumulative evidence.” MRE 403 does not prohibit evidence that is
prejudicial; it only prohibits evidence that is unfairly prejudicial. People v Crawford, 458 Mich
376, 398; 582 NW2d 785 (1998). Unfair prejudice occurs when the proposed evidence has the
tendency to adversely affect the objecting party’s position by injecting considerations that are
extraneous to the merits of the lawsuits by invoking a jury’s bias, sympathy, anger, or shock.
People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011). Evidence is unfairly
prejudicial when a danger exists that marginally probative evidence will be given undue or
preemptive weight by the jury. Crawford, 458 Mich at 398.

        “Photographs are not excludable simply because a witness can orally testify about the
information contained in the photographs.” Mills, 450 Mich at 76. Photographs are not
excludable simply because they are gruesome and may properly be used to corroborate a
witness’ testimony. Id. The proper test of a photographs’ admissibility is whether its probative
value is substantially outweighed by the danger of unfair prejudice. Id. at 75-76.

         Undoubtedly, the three photographs at issue are gruesome. But they were each used at
trial to illustrate and corroborate the medical examiner’s testimony, a proper purpose for even
grotesque photographs. See Mills, 450 Mich at 76. The medical examiner used the photographs
to demonstrate his methodology for determining how far the shooter was from the victim when
specific wounds were inflicted and the general trajectory of the bullets. The exhibits were
particularly relevant to the elements of the crime because they focus on the fatal injury to the
victim’s head. The location and nature of the injuries were material to defendant’s intent, not
only as an element of first-degree murder, but also as a clear contradiction of defendant’s theory
of self-defense. Accordingly, the photographs were, in fact, highly probative.

        Notably, much of defendant’s argument on appeal with regard to the photographs is
based upon extra-jurisdictional caselaw from the Supreme Court of Utah, none of which is
binding on this Court and some of which has even been overturned in that state. See State v
Bluff, 52 P3d 1210 (Utah, 2001), overruled by Met v State, 388 P3d 447; 826 UT 53 (2016), and
State v Lafferty, 749 P2d 1239 (Utah, 1988), overruled by Met v State, 388 P3d 447; 826 UT 53
(2016). Nonetheless, defendant utilizes the caselaw to contend that the photographs were
prejudicial because they were “probably enlarged” and they were less probative because they had
been taken at the morgue rather than the scene of the crime. Even assuming the latter factor
came from Michigan caselaw, we note that the photographs were used to illustrate and
corroborate the testimony of the medical examiner who performed his medical examination at
the morgue and while the victim’s body was in the condition represented by the photographs.
Defendant fails to explain how the probative value of the photographs was substantially

                                               -2-
outweighed by the danger of unfair prejudice. Moreover, the danger of prejudice based on
grotesqueness alone pales in comparison to the value of the photographs to corroborate the
medical examiner’s testimony and illustrate defendant’s intent to kill.

       Finally, we agree with the prosecution that even assuming arguendo that admission of the
photographs constituted an abuse of discretion, defendant has failed to show that the decision
was outcome determinative. See Jackson, 498 Mich at 257. Defendant makes no argument as to
how the photographs would have affected the jury “in the context of the untainted evidence,”
such as defendant’s confession, in order to show that “it is more probable than not that a different
outcome would have resulted without the error.” People v Lukity, 460 Mich 484, 495; 596
NW2d 607 (1999). Moreover, we note that additional, seemingly gruesome photographs were
admitted at trial to which defendant took no exception. Defendant provides no explanation as to
how the three photographs at issue were prejudicial while other similar photographs were not.

        Defendant next contends that a statement of the victim was erroneously admitted at trial
because it was hearsay and that the statement prejudiced defendant. At trial, a voicemail the
victim left with a neighbor days before the victim’s death was admitted through the testimony of
the neighbor. The neighbor explained that the victim told her:

       [The neighbor] would be proud of [the victim] because [the victim] finally kicked
       [defendant] out and he tore up the house on the inside and [] [the victim] was
       waiting for him to come back to give her the key and [] [the neighbor] should
       come over and see what [defendant] had done.

The statement was admitted under MRE 803(3) as evidence of the victim’s then existing state of
mind, but defendant contends that the statement was admitted not to show the victim’s state of
mind, but to prove facts, conduct, and events leading to that state of mind. Defendant also
contends that the statement was prejudicial because it attempted to show that defendant “tore up
the house,” and that defendant was temperamental and vengeful. We disagree.

       We review the trial court’s decision to admit the evidence for an abuse of discretion.
People v Moorer, 262 Mich App 64, 67; 683 NW2d 736 (2004). “However, whether evidence is
admissible under a particular rule of evidence is a question of law that this Court reviews de
novo.” Id. When a trial court abuses its discretion by admitting evidence, “we must next
determine whether this error was sufficiently prejudicial to warrant reversal of defendant’s
convictions.” People v Gursky, 486 Mich 596, 619; 786 NW2d 579 (2010).

        “ ‘Hearsay’ is a statement other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is generally subject to exclusion but may be admitted at trial if an exception to the rule
against hearsay applies. People v Duncan, 494 Mich 713, 724; 835 NW2d 399 (2013); MRE
802. MRE 803(3) is such an exception and provides:

       A statement of the declarant’s then existing state of mind, emotion, sensation, or
       physical condition (such as intent, plan, motive, design, mental feeling, pain, and
       bodily health), but not including a statement of memory or belief to prove the fact



                                                -3-
       remembered or believed unless it relates to the execution, revocation,
       identification, or terms of declarant’s will. [MRE 803(3).]

“It is well accepted that evidence that demonstrates an individual’s state of mind will not be
precluded by the hearsay rule.” People v Fisher, 449 Mich 441, 449; 537 NW2d 577 (1995).

        “Michigan courts have permitted, indeed required, the admission of statements indicative
of the state of mind of a homicide victim where self-defense is raised.” People v White, 401
Mich 482, 504; 257 NW2d 912 (1977), superseded by statute on other grounds as stated in
People v Koonce, 466 Mich 515, 520 (2002). This Court has held admissible under MRE 803(3)
as evidence of a victim’s state of mind, evidence of a victim’s plans that demonstrate motive,
such as the ending of the marriage and the tension between the victim and defendant, and
evidence of a defendant’s statements made to cause the victim fear. People v Ortiz, 249 Mich
App 297, 310; 642 NW2d 417 (2001). Evidence of a victim’s intent to end a relationship may be
admissible under MRE 803(3) because it can be “relevant to a motive for murder and indirectly
relevant to [a] defendant’s intent and to whether [a] defendant acted with premeditation and
deliberation.” People v Bauder, 269 Mich App 174, 190-191; 712 NW2d 506 (2005), overruled
in part on other grounds by People v Burns, 494 Mich 104, 112-113 (2013); see also Unger, 278
Mich App at 223 (“[E]vidence of motive in a prosecution for murder is always relevant.”).

        Defendant relies upon Moorer for the contention that the victim’s statement actually and
impermissibly consisted of statements of memory made to prove the truth of the facts contained
in the memory as opposed to evidence of the victim’s state of mind. In Moorer, the trial court
permitted several witnesses to testify that the victim told them that the defendant had threatened
the victim’s life. Moorer, 262 Mich App at 65. Specifically, five witnesses testified that the
victim told them that the defendant had a gun and intended to kill the victim. Id. at 66-67. This
Court determined that the statements should have been excluded because they were statements of
“memory or belief to prove the fact remembered or believed . . . .” Id. at 73, quoting MRE
803(3). We find the hearsay statements in Moorer distinguishable from those in the case at
hand.

         In Moorer, the hearsay statements consisted solely of events remembered by the
declarant and were offered to prove the truth of the matter asserted—that the defendant intended
to kill the victim. Id. at 72-73. In this case, however, the victim’s statement as a whole shows
that she was in the process of kicking defendant out of her home—he still had to return and give
her a key. And, more importantly, it indicated her mental state at the time based upon that fact:
she was proud. The victim’s statement was not used to show that some specific event had
occurred in the past, but rather, that the victim and defendant were engaged in a tumultuous
relationship from which the victim intended to separate herself. The statement is the type of
hearsay in a homicide case that is central to the purpose of MRE 803(3), particularly in light of
defendant’s theory of self-defense. See Fisher, 449 Mich at 450-451, White, 401 Mich at 504,
and Ortiz, 249 Mich App at 310. Moreover, contrary to defendant’s contention, there is no
evidence that the statement was used to prove that defendant had, in fact, “tore up the house,” or
that the statement’s tendency to show that defendant was temperamental or vengeful outweighed
the probative nature of the statement as evidence of the victim’s state of mind.



                                               -4-
        Finally, even assuming arguendo admission of the victim’s statement constituted an
abuse of discretion by the trial court, we find that defendant has failed to establish prejudice.
Had the hearsay statement been excluded, the jury still would have been presented with
defendant’s confession, the findings of the investigative detectives and officers that tended to
corroborate defendant’s confession, and the testimony of the medical examiner, which also
corroborated parts of defendant’s confession while also contradicting his theory of self-defense.
Other than his conclusory statement that the victim’s hearsay was “not harmless,” defendant has
failed to establish with facts and support that it is more probable than not that the hearsay, if it
were admitted erroneously and considered in the context of the properly admitted evidence, was
outcome determinative. See Gursky, 486 Mich at 619, citing Lukity, 460 Mich at 495.

       We affirm.

                                                             /s/ Michael J. Kelly
                                                             /s/ Jane E. Markey
                                                             /s/ Karen M. Fort Hood




                                                -5-
