Business records; Notice; MRE 902(11); Self-authenticating records; Business-records exception to the hearsay rule; MRE 803(6); First Amendment; As-applied challenge; MCL 750.411s; Motion for a directed verdict; Ineffective assistance of counsel; Jury instruction “concerning commentary on public figures or matters of public concern”; Sufficiency of the evidence; Unlawfully posting a message; Sentencing; Scoring of OVs 12 & 19

The court concluded that: (1) “the trial court did not abuse its discretion when it allowed the prosecutor to admit the Facebook records as self-authenticating records under MRE 902(11),” (2) the trial court did not err when it denied defendant’s motion for a directed verdict on the ground that the prosecutor only adduced evidence of posts that were protected under the First Amendment, (3) she was not denied the effective assistance of counsel, (4) the trial court did not err when it found that she was not entitled to an instruction as to “commentary on public figures or matters of public concern because the facts did not support such an instruction,” and (5) there was sufficient evidence to convict her under MCL 750.411s. She was convicted of unlawfully posting a message, and sentenced to 90 days in jail with the sentence suspended and 3 years on probation. She first argued “that the trial court abused its discretion when it allowed the prosecutor to admit business records produced by Facebook.” On appeal, she only argued “that the prosecutor had to strictly comply with the notice provisions stated under MRE 902(11) before the trial court could admit the records. Because the prosecutor did not send a formal written notice, she maintains that the trial court could not admit the records under MRE 803(6). The rules of evidence allow the admission of hearsay evidence compiled through regularly conducted activity under MRE 803(6)—the business-records exception to the hearsay rule.” The court held that although “the prosecutor did not provide a separate, formal notice to the defense in which she related that she intended to admit the Facebook records as self-authenticating documents under MRE 902(11), she nevertheless met the minimum requirements of that rule with her disclosure because she both identified certified records and social media posts as evidence that she intended to admit, and the context provided by the preliminary examination made it amply clear that the Facebook records were the social media posts that were certified.” As to defendant’s as-applied challenge, under MCL 750.411s, the court concluded that the trial court correctly held that her “posts about the victim, which she posted on Facebook and her website, did not involve protected speech.” It determined that although “there was evidence that defendant was angry about the handling of her son’s assault case by the prosecutor and the police department, she did not create the website about the prosecutor or the police department—she created a website about the victim. The images and commentary posted on that website demonstrate that the purpose of the website was to demean and disparage the victim. There was nothing on the website that suggested that the goal of the website was to discuss, or bring to light, deficiencies in the police department or with the prosecutor’s office, which only tangentially involved the victim.” Affirmed.