People v. Bulmer

• Decision Date: 25 March 2003
• Docket Number: Docket No. 236554.
• Citation: 256 Mich. App. 33,662 N.W.2d 117
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Travis Allen BULMER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

662 N.W.2d 117

256 Mich. App. 33

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Travis Allen BULMER, Defendant-Appellant.

Docket No. 236554.

Court of Appeals of Michigan.

Submitted January 14, 2003, at Lansing.

Decided January 24, 2003, at 9:05 a.m.

Approved for Publication March 25, 2003.

Released for Publication May 29, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for the people.

Birch, Mowry & Associates, P.C. (by Kenneth A. Birch), Lansing, for the defendant on appeal.

Before: O'CONNELL, P.J., and GRIFFIN and MARKEY, JJ.

PER CURIAM.

Defendant appeals by right his conviction of second-degree murder, M.C.L. § 750.317. Defendant was sentenced to seven to fifteen years' imprisonment. We affirm.

Defendant argues that the trial court improperly allowed the prosecutor to admit into evidence a computer-animated, slideshow simulation of the shaken-baby syndrome without proper foundation and because it served to inflame and prejudice the jury. We disagree. The trial court's decision regarding the admission of evidence is reviewed for an abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling. People v. Snider, 239 Mich.App. 393, 419, 608 N.W.2d 502 (2000).

In this case, the prosecutor offered the slideshow simulation solely as demonstrative evidence pursuant to MRE 702 and 703 to explain what happens to the baby's brain during a shaken-baby episode. The prosecutor stated that the simulation served as a basis for the opinion of Dr. Joyce DeJong, the prosecution's expert witness, and that it was not intended to be an exhibit that would be introduced into evidence at trial. Defendant objected, not on the grounds raised on appeal, but rather on the ground that he had reviewed the slideshow just before trial and had not had time to have other medical experts review it. Defendant cited MCR 6.201(A)(2) and (3) regarding discovery and argued that he should have received the slideshow before trial. The trial court found MCR 6.201(A)(2) and (3) inapplicable. As the prosecutor points out, an objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. People v. Asevedo, 217 Mich.App. 393, 398, 551 N.W.2d 478 (1996). When reviewing an unpreserved error, the defendant must show a plain error that affected substantial rights. People v. Carines, 460 Mich. 750, 763, 774, 597 N.W.2d 130 (1999).

Demonstrative evidence is admissible when it aids the fact-finder in reaching a conclusion on a matter that is material to the case. People v. Castillo, 230 Mich.App. 442, 444, 584 N.W.2d 606 (1998). The demonstrative evidence must be relevant and probative. Id. Further, when evidence is offered not in an effort to recreate an event, but as an aid to illustrate an expert's testimony regarding issues related to the event, there need not be an exact replication of the circumstances of the event. Lopez v. Gen. Motors Corp., 224 Mich.App. 618, 628 n. 13, 569 N.W.2d 861 (1997).

After reviewing the slideshow, we conclude that it simply demonstrated what Dr. DeJong described in her testimony. Defendant did not object to Dr. DeJong's testimony that described in detail the shaken-baby syndrome. The court also clearly advised the jury that the slideshow was a demonstration and not a reenactment of what happened to the victim. The brief slideshow was relevant and probative in refuting defendant's claim that he only "gently" shook the victim. The slideshow was not a reenactment. It illustrated Dr. DeJong's testimony regarding a material issue relating to the case, i.e., whether defendant gently or severely shook the victim. See Castillo, supra. Even if we concluded that the admission of the slideshow was a close evidentiary question, a decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v. Sabin (After Remand), 463 Mich. 43, 67, 614 N.W.2d 888 (2000). Defendant has not shown prejudice to the extent that the outcome of the lower-court proceedings was affected. Carines, supra at 763, 597 N.W.2d 130.

Defendant also argues that insufficient evidence was presented to prove beyond a reasonable doubt the necessary element of defendant's intent to commit second-degree murder. We disagree. In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992). This Court should not interfere with the jury's role of determining the weight of the evidence or the credibility of the witnesses. Id. at 514-515, 489 N.W.2d 748.

In People v. Mayhew, 236 Mich.App. 112, 125, 600 N.W.2d 370 (1999), this Court stated with regard to second-degree murder:

...