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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 10, 2015

v No. 319248 Saginaw Circuit Court KEONDRE EARL SOLOMON, LC No. 13-038289-FC

Defendant-Appellant.

Before: J ANSEN , P.J., and M ETER and B ECKERING , JJ.

P ER C URIAM

. Defendant appeals as of right from his convictions, following a jury trial, of two counts of assault with intent to murder, MCL 750.83; three counts of p ossession of a firearm during the commission of a felony (felony- firearm), MCL 750.227b; and one count of carrying a dangerous weapon with unlawful intent, MCL 750.226. He was sentenced to prison terms of 276 months to 40 years for assault with intent to murder, 30 months to 5 year s for carrying a dangerous weapon, and 2 years for felony-firearm. The felony-firearm sentences a re concurrent with each other but consecutive to the assault-with-i ntent-to-murder and carrying-a -dangerous-weapon sentences. For the reasons explained below, we affirm.

I. BACKGROUND

This case involves the drive-by shooting of Marcel Wilson and Richard Fowler. Wilson and Fowler were driving from the west side to the south side of Saginaw, which was where Fowler lived. At one point they stopped at a gas station. Fow ler went into the store while Wilson stayed in the car. While waiting, Wilson noticed defend ant pumping gas into a white Dodge Charger. Fowler testified that he went into the store, m ade a purchase without talking to anyone, and walked straight out. Videotape surveillance footag e from the store confirmed that Fowler “ma[de] his purchase and walk[ed] out without any intera ction with anyone.” The footage also showed that defe ndant and a man named J’ion Parker left the store after Fowler.

Wilson testified that as he and Fowler proceeded toward the so uth side of town, he noticed the Charger coming up be hind them, eventually pulling u p alongside them. According to Wilson, “that’s when it started shooting.” Fowler said he and Wilson both tried to duck when the shooting began, but that “there wasn’t no stopping them.” The emergency room doctor who attended to Wilson and Fowler testified that Wilson had been sh ot twice and Fowler had been-2- shot once. Both men needed hospitalization and surgery. A wit ness testified that the car in which Wilson and Fowler had been traveling hit a tree and the C harger hit a fire hydrant.

Saginaw Police Officer Matthew Gerow interviewed Parker at the police station. Gerow testified that although Parker was “very reluctant” and “defini tely did not want to be there,” he identified a picture of codefendant Samuel Jackson as the shoot er and indicated on a piece of paper that both defendant and J ackson were involved. Gerow als o testified that there was a hidden camera and microphone in the interview room, and that at one point when Parker and his mother were alone, the camera recorded Parker whispering to her , “I can’t live my life as no snitch, though. I can’t do it. It would make me want to kill myself if I was a snitch. They gonna kill me if I snitch.” The trial court provided the following l imiting instruction regarding Parker’s statement: “That’s been offered to explain why the witness may have been reluctant with the police, and there may be an issue of credibility as to that wit ness. And so you may consider the evidence as to the witness credibility.” The trial court furth er explained that “[t]here is no evidence of threats of any kind by either of the defendants her e, or of threats or intimidation of any kind, by them or anybody associated with them.”

Gerow also testified regarding a map of Saginaw that was admit ted as a trial exhibit. The map contained annotations indicat ing where each of the involved parties lived, where the gas station was, and the location of the shooting. Gerow stated th at defendant and Parker resided in what would be considered the east side of Saginaw. Gerow testi fied that he was aware of conflicts between individuals from different parts of the city, and that he had encountered “assaultive-type cases” between individuals from the east and s outh sides. Gerow then stated that hand gestures made by Jack son and Parker in photographs ta ken from Parker’s Facebook page demonstrated their associa tion with the east side and Jack son was making gestures showing disrespect for the south side. Gerow made it clear that none o f the pictures admitted showed defendant displaying hand gestures that would associate him wit h a particular side of the city. The trial court stated to the jury:

. . . there was a reference to some assaultive acts on these di fferent parts of town or between these different people associated with these differe nt parts of town.

I caution you that there’s not hing in evidence to suggest that these two defendants were involved in these other acts that were referred to by the witness, and -- or that these two defendants were associated in any way with those other acts that were referr ed to by the witness.

II. STANDARD OF REVIEW

“The decision to admit evidence is within a trial court’s disc retion, which is reviewed for an abuse of that discretion.” People v Bynum , 496 Mich 610, 623; 852 NW2d 570 (2014). “An abuse of discretion occurs . . . when the trial court chooses a n outcome falling outside [the] principled range of outcomes.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). “Preliminary questions of law, s uch as whether a rule of eviden ce or statute precludes the admission of particular evidence, are reviewed de novo . . . .” Bynum , 496 Mich at 623.

III. ANALYSIS-3- Defendant first argues that the trial court erred in admitting evidence of his membership in a gang because such evidence was irrelevant and unfounded. “The Michigan Rules of Evidence provide the appropriate framework” for reviewing wheth er a defendant “is entitled to a new trial on the basis of evidentiary error.” Id

. at 623-624. “Evidence which is not relevant is not admissible,” MRE 402, and relevant evidence “may be exclude d if its probative value is substantially outweighed by the danger of unfair prejudice,” MR E 403. “In the context of gangrelated violence, . . . expert testimony may be admitted regard ing general characteristics of gang culture for an appropriate purpose, such as helping to elucidat e a gang member’s motive for committing a gang-related crime.” Bynum , 496 Mich at 626-627. “The testimony, of course, must otherwise meet the rules of evidence before it can be admi tted,” and an expert may not testify that “on a particular o ccasion, a gang member acted in conformity with character traits commonly associated with gang members.” Id . at 627.

The premise of defendant’s argument is inaccurate, rendering i t without merit. Neither Gerow nor any other witness testified that defendant or any of the involved parties were members of a gang and, unlike in Bynum
, id . at 616, there was no testim ony that defendant acted in conformity with the character istics of a gang or other group . Rather, Gerow testified that, based on his experience as a Sa ginaw police officer, he was awa re of “assaultive-type” conduct and animosity between residents of the city’s east and south si des, and that defendant and Parker resided in what would be consider ed the east side of town. Als o, although Gerow opined that Jackson and Parker—but not defe ndant—were seen in pictures disp laying hand gestures indicating an associa tion with the east si de and disrespect for the south side, he d id not opine that there were gangs in these areas or that defendant, Jackson, or Parker were members of any gang. Further, the trial court mitigated any unfairly prejudicial imp act of this testimony by instructing the jury that “there’s nothing in evidence to suggest that thes e two defendants were involved in these other acts [i.e., the hist orically observed “assaultive-t ype” conduct] . . . or that these two defendants were associated in any way with those other acts . . . .” “It is well established that jurors are presumed to follow their instructions.” People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998).

Moreover, defendant fails to explain why evidence of his resid ence on the east side of Saginaw was irrelevant. Evidenc e that defendant resided on the east side of Saginaw was relevant in explaining why he was willing to participate in an apparent random act of violence against two people whom he did not know, but whom he saw travel ing toward the south side of Saginaw. Accordingly, defendant has failed to show that he was convicted on the basis of evidence that was irrelev ant or unfairly prejudicial.

Next, defendant argues that the trial court erred in admitting evidence regarding Parker whispering to his mother, “I can ’t live my life as no snitch, t hough. I can’t do it. It would make me want to kill myself if I was a snitch. They gonna kill me i f I snitch.”

At trial, certain incriminating statements from Parker’s preli minary examination were admitted. Parker invoked his right to remain silent when calle d as a witness at trial, stating he did not want to testify. The t rial court appointed Parker coun sel to advise him regarding his Fifth Amendment rights, and his appoin ted counsel thereafter informed the court that Parker had no memory of what happened and did not want to testify. The court declared Parker unavailable and permitted his preliminary examination testimony to be read into the record.-4- At the preliminary examination, Parker testified that he was t raveling in a car with defendant and Jackson on the night in question, but he denied t hat he saw Jackson shoot a gun. Parker testified that when he, Jackson, and defendant left the gas station, they attempted to pass a slow-traveling vehicle and crashed when that vehicle bumped the ir vehicle. He testified that he did not know whether someone in his car’s front seat began shoo ting and that he heard shots only after he got out of the car fo llowing the crash and began runni ng home. Parker admitted, however, that he had previously t old a police detective that Ja ckson began shooting at another vehicle while he (Parker) was sitting in the backseat and defen dant was driving.

Given Parker’s conflicting statements, his credibility was hig hly relevant. “[T]he credibility of a witness is an issue of the utmost importance i n every case,” and “evidence of a witness’ bias or interest in a case is highly relevant to his c redibility.” People v Mumford , 183 Mich App 149, 152; 455 NW2d 51 (1990) (citation and internal qu otation marks omitted). Evidence that Parker stated before his preliminary examination that he did not want to “snitch” was highly probative regar ding this credibility.

Defendant complains that notwith standing the relevance of Park er’s reluctance to talk with police, the probative valu e of the phrase “[t]hey gonna ki ll me if I snitch” was substantially outweighed by the danger of unfai r prejudice under MRE 403 beca use it suggested that Parker had been threatened. Defendant also argues that reversal is wa rranted because the prosecutor did not introduce evidence connecti ng the threats to defendant.

As discussed, the phrase “[t]he y gonna kill me if I snitch” wa s highly relevant in this case, because it spoke directly to Parker’s potential bias. Mo reover, contrary to defendant’s assertion, the statement did not h ave an unfairly prejudicial e ffect because it did not demonstrate that any threats were made against Parker. Indeed, Parker did not say that anyone told him he would be killed if he snitched, let alone that defendant did. Rather, his statement merely reflected his opinion, however informed or exaggerated. Moreov er, the trial court mitigated any possible prejudicial impact of Pa rker’s statements by instructi ng the jury that “[t]here is no evidence of threats of any kind by either of the defendants her e, or of threats or intimidation of any kind, by them or anybody associated with them.” See Graves , 458 Mich at 486. Accordingly, the trial court di d not err in admitting Parker’s statements.

Affirmed.

/s/ Kathleen Jansen /s/ Patrick M. Meter /s/ Jane M. Beckering