PEOPLE OF MI V MARK THOMAS WEINERT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 2, 1998
Plaintiff-Appellee,
v
No. 200279
Schoolcraft Circuit Court
LC No. 96-006083 FH
MARK THOMAS WEINERT,
Defendant-Appellant.
Before: Markman, P.J., and Griffin and Whitbeck, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction following a jury trial of assault and infliction of
serious injury, MCL 750.81a; MSA 28.276(1). He was sentenced to ten months in jail. We affirm.
Defendant argues that the trial court abused its discretion by admitting two color photographs
depicting the victim's injuries. First, defendant argues that the photographs were admitted without a
proper foundation. An appropriate foundation for the admissibility of photographic evidence is satisfied
when a person with personal knowledge of the scene or the person photographed testifies that the scene
or person photographed is accurately represented. In re Robinson, 180 Mich App 454, 460; 447
NW2d 765 (1989). It is not necessary that the person who took the photograph testify. People v
Riley, 67 Mich App 320, 322; 240 NW2d 787 (1976), rev’d and remanded on other grounds 406
Mich 1016 (1979). Here, the photographs were admitted through the victim, who had personal
knowledge of the injuries depicted in the photographs. As a person with personal knowledge, he was
qualified to testify regarding the authenticity of the injuries depicted in the photographs. Therefore, we
conclude that the trial court properly found that there was an adequate foundation for the admissibility of
the two photographs.
Second, defendant argues that the photographs were unduly inflammatory and that their
probative value was substantially outweighed by the prejudice they caused defendant. The admission or
exclusion of photographic evidence is within the sound discretion of the trial court. People v Duby, 120
Mich App 241, 256; 327 NW2d 455 (1982). A trial court need only determine whether the admission
of photographic evidence is substantially necessary or instructive to show material facts or conditions or
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whether the photographs are being introduced merely to incite passion or prejudice against the
defendant. Id. at 256-257. Photographic evidence is not inadmissible merely because it contains
“gruesome or shocking details” of the alleged crime. Id. at 257. In this case, the prosecution sought to
convict defendant of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA
28.279. The trial court could have correctly concluded that these additional photographs depicted the
additional swelling and bruising the victim suffered following defendant’s assault. These photographs
were therefore instructive in showing the jury the nature and extent of the victim's injuries, a material
fact, and were therefore not cumulative. People v Banks, 50 Mich App 622, 627; 213 NW2d 817
(1973). We find no abuse of discretion.
Finally, defendant argues that the prosecution failed to produce the photographs in accordance
with a discovery order and that they therefore should have been excluded. However, violation of a
discovery order does not automatically entitle a defendant to the exclusion of what is otherwise
admissible evidence. People v Paris, 166 Mich App 276, 281; 420 NW2d 184 (1988). In addition,
a trial court does not automatically abuse its discretion by allowing the admission of evidence that
violates a discovery order when the defendant has independent knowledge of the nature of the
evidence. People v Young, 212 Mich App 630, 642; 538 NW2d 456 (1995). A trial court is entitled
to fashion its own remedy for noncompliance with a discovery order. People v Loy-Rafuls, 198 Mich
App 594, 597; 500 NW2d 480, rev’d on other grounds, 442 Mich 915 (1993). Here, the trial court
found that the prosecution did not receive the photographs at issue until just before trial. Defendant was
already aware of the prosecution’s intent to offer as evidence other photographs depicting the victim’s
injuries. In addition, defendant was also aware that the prosecution intended to show that the
seriousness of the victim’s injuries was evidence of defendant’s intent to cause harm to the victim. It
follows that defendant had independent knowledge of the nature of the evidence depicted in the
photographs. Therefore, we hold that the trial court correctly concluded that the photographs were
admissible.
Affirmed.
/s/ Stephen J. Markman
/s/ Richard Allen Griffin
/s/ William C. Whitbeck
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