State v. Ford (Lawyers Weekly No. 011-065-16, 23 pp.) (Wanda Bryant, J.) Appealed from Person County Superior Court (W. Osmond Smith III, J.) N.C. App.
Holding: While tracking a Myspace page directly to defendant through an electronic footprint or link would have provided some technological evidence, such evidence was not required given the strong circumstantial evidence that the Myspace page and its unique content belonged to defendant.
We find no error in defendant’s conviction of involuntary manslaughter.
The webpage contained content unique to defendant, whose nickname was “Flex” and webpage name was “Flexugod/7.” It contained (1) pictures of defendant; (2) pictures of his dog, DMX; (3) video captioned “DMX tha Killer Pit”; and (4) another video captioned “After a Short Fight, he killed that mut.” Not only was the content distinctive and unique to defendant and DMX, but it was also directly related to the facts in issue: whether defendant had been criminally negligent in allowing his dangerous dog to attack and kill a man. Thus, the trial court did not err in admitting the screenshots of the Myspace page as defendant’s webpage.
The trial court also admitted a recording of defendant performing a rap song in which he proclaimed that the victim was not killed by a dog. The state asserts that the song was relevant and admissible to prove that the Myspace page on which the song and other information were found was defendant’s page and to prove, not only defendant’s knowledge that his dog was vicious, but also that defendant was proud of the viciousness of his dog. Videos posted to defendant’s Myspace page were titled “dmx tha killa FLEXUGOD7” and “DMX THA KILLA PIT Flexugod7.”
While the song does contain profanity and racial epithets, it also carries a message consistent with defendant’s claim that the victim was not killed by a dog; that defendant and DMX were scapegoats and had nothing to do with the victim’s death; and that defendant’s dog, having been held “hostage” for almost two years, should be freed.
Defendant has failed to show the trial court abused its discretion in ruling that the evidence was relevant.
Further, the trial court did not err in determining that the probative value was not substantially outweighed by the prejudicial effect. While the song’s use of profanity and accusatory language may have inflamed the passions of the jury, the song itself was relevant and probative, outweighing any prejudicial effect.