COA 371955 PEOPLE OF MI V ADAM MANLEY DUNN Opinion - Per Curiam - Unpublished 4/9/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
April 09, 2026
2:42 PM
v No. 371955
Wayne Circuit Court
ADAM MANLEY DUNN, LC No. 24-001116-01-FC
Defendant-Appellant.
Before: KOROBKIN, P.J., and YOUNG and BAZZI, JJ.
PER CURIAM.
Defendant, Adam Manley Dunn, appeals as of right his bench trial convictions of one count
of armed robbery, MCL 750.529; one count of assault with the intent to do great bodily harm less
than murder (AWIGBH), MCL 750.84(1)(a); one count of being a felon in possession of a
firearm (felon-in-possession), MCL 750.224f; and three counts of carrying a firearm during the
commission of a felony (felony-firearm), second offense, MCL 750.227b(1). Dunn was sentenced
to concurrent terms of 25 to 50 years’ incarceration for the armed robbery conviction, 5 to 10
years’ incarceration for the AWIGBH conviction, and three to five years’ incarceration for the
felon-in-possession conviction. He was further sentenced to five years’ incarceration for each
felony-firearm conviction, to be served concurrently with each other but consecutive to his other
sentences. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises out of the January 2024 robbery and shooting of complainant, Michael
Jackson, on the driveway of his home in Detroit, Michigan. At approximately 1:00 p.m., Jackson
was driving his vehicle with his girlfriend in the vicinity of residence, when he noticed a black
Ford Escape appeared to be following him as he traveled between multiple locations. Jackson and
his girlfriend then returned to his home. Shortly after Jackson parked his car in the driveway of
his home, he noticed the same black Ford Escape pull over on his street and stop by his driveway.
One person got out of the Ford Escape, whom Jackson recognized as Dunn; the two had known
each other since they were children. Dunn approached and the two exchanged pleasantries. As
Jackson was speaking to Dunn, he noticed a masked individual get out of the black Ford Escape,

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who then walked up to join the conversation. Jackson testified that he was familiar with the
masked individual and recognized his tattoos, complexion, and voice. Jackson recalled that while
he was not threatened by either party, he felt uneasy about the fact that this person was wearing a
mask. Dunn and the masked individual stood side by side as they continued to converse with
Jackson. Jackson was wearing a pair of Cartier glasses and a Rolex watch, both of which were in
plain view. Jackson further carried two weapons on his person, including a Draco pistol that he
was holding in his hand and a “FN Five seven by twenty eight” pistol1 that was visibly tucked into
his waistband. Dunn and Jackson shook hands, and the conversation seemingly concluded.
After bidding the men farewell, Jackson was shot. Jackson testified that while he did not
see any weapons, he heard and felt approximately three gunshots, and he could see that the shots
came from Dunn’s direction. Dunn had his hand in his coat at the time. After Jackson was shot,
he was tackled by Dunn, which caused Jackson to slip and fall to the ground. As Jackson was on
the ground, Dunn reached inside Jackson’s clothing and forcibly retrieved Jackson’s FN Five-
seveN pistol off his person. As Jackson wrestled with Dunn, Jackson heard another gunshot and
asserted at trial that he was certain the additional shot did not come from the firearm inside of his
sweatshirt. The masked individual was allegedly instructing Dunn to get off of Jackson while the
two were struggling for the FN Five-seveN pistol to allow the masked individual to shoot Jackson.
Jackson further testified that the masked individual pointed Jackson’s Draco pistol at him and said,
“[Y]ou got five mother ‘F’in seconds to take off that watch, or I’m gonna kill you’re [sic] a**.”
Jackson lost possession of both his Draco pistol and Cartier glasses during the struggle. After
Dunn and the masked individual acquired Jackson’s Rolex, the two returned to the black Ford
Escape and fled the scene. Jackson received treatment at a hospital for his wounds, which included
a bullet wound on his bicep, two in his armpit, and one final wound from where a bullet exited out
of his back. The security camera of Jackson’s neighbor, Kevin Booker, captured the physical
struggle between Jackson and Dunn, and the footage was submitted into evidence.
Following a bench trial, the trial court convicted Dunn as previously provided. Dunn was
acquitted of an additional charge of assault with intent to murder, MCL 750.83, in addition to the
corresponding felony-firearm charge. As the trial court announced its verdict, an unidentified
speaker interrupted the proceedings. As the trial court attempted to continue reading its verdict,
the speaker argued with a deputy and attempted to bring a matter to the court’s attention. After a
heated exchange with the deputy, the proceedings continued without further interruption. Dunn
was sentenced as noted prior. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, Dunn argues that the prosecution presented insufficient evidence to sustain his
convictions. We disagree.
To effectively protect the right to due process in a criminal proceeding, prosecutors must
provide evidence to support a criminal conviction beyond a reasonable doubt. People v Nowack,
462 Mich 392, 399; 614 NW2d 78 (2000). As opined by the Michigan Supreme Court:
1 This type of pistol is commonly referred to as an “FN Five-SeveN.”

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Bench trials stand in sharp contrast to jury trials. A jury is required to consider all
the evidence and to render a unanimous verdict, without the need for explanation.
In a bench trial, however, the trial court is obligated to find the facts specially, state
separately its conclusions of law, and direct entry of the appropriate judgment. The
court must state its findings and conclusions on the record or in a written opinion
made a part of the record. Because of this, reviewing courts are provided greater
insight into the specific evidence found by the trial court to support verdicts in
bench trials. [People v Xun Wang, 505 Mich 239, 250; 952 NW2d 334 (2020)
(quotation marks and citation omitted).]
Challenges to the sufficiency of that evidence are reviewed de novo. People v Kloostermann, 296
Mich App 636, 639; 823 NW2d 134 (2012). In an appeal challenging the sufficiency of the
evidence, this Court must review the evidence in the light most favorable to the prosecution to
determine whether it was sufficient to permit the finder of fact to find the essential elements of a
crime beyond a reasonable doubt. People v Jarell, 344 Mich App 464, 480; 1 NW3d 359 (2022).
Furthermore, this Court “must defer to the fact-finder’s role in determining the weight of the
evidence and the credibility of the witnesses and must resolve conflicts in the evidence in favor of
the prosecution.” People v Savage, 327 Mich App 604, 614-615; 935 NW2d 69 (2019) (quotation
marks and citation omitted).
“Findings of fact by the trial court may not be set aside unless they are clearly erroneous.”
People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). “A finding of fact is clearly erroneous
if, after a review of the entire record, an appellate court is left with a definite and firm conviction
that a mistake has been made.” People v Gingrich, 307 Mich App 656, 661; 862 NW2d 432 (2014)
(quotation marks and citation omitted).
A. AWIGBH
Dunn contends that there was insufficient evidence to support his AWIGBH conviction
because the prosecution failed to establish that Dunn possessed a weapon or caused Jackson’s
injuries. We disagree.
“The elements of assault with intent to do great bodily harm less than murder are: 1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and 2) an intent
to do great bodily harm less than murder.” People v Brown, 267 Mich App 141, 148; 703 NW2d
230 (2005) (quotation marks and citation omitted; emphasis omitted). AWIGBH is a specific
intent crime. Id. at 146. Intent to do great bodily harm has been defined as “an intent to do serious
injury of an aggravated nature.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016)
(quotation marks and citation omitted). This Court has previously determined that intent may be
inferred from circumstantial evidence. People v Kenny, 332 Mich App 394, 403; 956 NW2d 562
(2020). This circumstantial evidence may include “defendant’s actions, including the use of a
dangerous weapon or the making of threats.” People v Stevens, 306 Mich App 620, 629; 858
NW2d 98 (2014). A defendant’s intent may also be inferred from injuries suffered by the
complainant. Id. A criminal assault is defined as (1) an attempt to commit a battery or (2) an
unlawful act that places another in immediate, reasonable apprehension of a battery. People v
Starks, 473 Mich 227, 234; 701 NW2d 136 (2005). The elements of battery have been defined as

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“an intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person.” Id. (quotation marks and citations omitted).
In the present case, the trial court articulated its factual findings after reviewing the entirety
of the record, including the admitted exhibits, the testimonies of Jackson, Booker, and Detroit
Police Department Officer Ahmed Haidar, in addition to the video evidence depicting a portion of
the underlying incident. The court resolved that Dunn was the person responsible for initially
shooting Jackson, stating:
Uh, the Court finds as a fact that, uh, Mr. Dunn shot and struck Mr. Jackson,
uhm, at least two times, in the arm, and arm pit region, uh, of Mr. Jackson’s body.
Uhm, the Court notes that Mr. Jackson credibly testified that he believes Mr. Dunn,
believed Mr. Dunn was the shooter, because, uh, he was shot in a line that was
directly from Mr. Dunn, even though he didn’t see, uh, the gun in Mr. Dunn’s hand.
Uh, but clearly, based on the fact that Mr. Jackson had two bullet wounds, at least
two bullet wounds, in his arm and arm pit, uh, there is no question that Mr. Dunn,
uhm, in fact, shot and struck Mr. Jackson.
As previously noted, Booker’s security footage portrayed the physical struggle between
Jackson and Dunn. In conjunction with Jackson’s testimony, the cited footage depicted Jackson,
on the ground, yelling, as Dunn was looming over Jackson attempting to remove Jackson’s firearm.
The footage further shows Dunn with a separate, unidentified firearm in his hand while Dunn was
attempting to disarm Jackson of his FN Five-seveN pistol. Further, during the entire altercation,
the sole firearm seen in the masked individual’s possession was Jackson’s Draco pistol. Due to
the assault, Jackson suffered multiple gunshot wounds and was hospitalized, requiring a blood
transfusion. Considering the nature and extent of Jackson’s injuries, a reasonable fact-finder may
infer the assault which caused such harm was committed with the intent to cause serious injury of
an aggravated nature.
In light of the foregoing, the prosecution presented sufficient evidence for the trial court to
find Dunn guilty of AWIGBH beyond a reasonable doubt, and thus Dunn’s conviction must be
affirmed. However, the evidence was further adequate to support Dunn’s conviction of AWIGBH
under an aiding and abetting theory. See Robinson, 475 Mich at 6 (explaining that vicarious
liability may be imposed on accomplices); MCL 767.39 (“Every person concerned in the
commission of an offense, whether he directly commits the act constituting the offense or procures,
counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried, and on
conviction shall be punished as if he had directly committed such offense.”) The elements of
aiding and abetting are as follows:
(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the
commission of the crime; and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time
that [the defendant] gave aid and encouragement. [Robinson, 475 Mich at, 6 (
alteration in original; quotation marks and citation omitted).]

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Dunn argues that he was merely present during the commission of the alleged offenses.
However, the evidence presented at trial belies this argument. The proofs demonstrated that Dunn
and the masked man purposely stopped by Jackson’s residence. Both men separately approached
Jackson in a nonthreatening manner, but as the conversation was concluding, Jackson was shot.
Jackson’s Draco pistol is subsequently portrayed in the masked man’s hands while Dunn forcibly
removes Jackson’s FN Five-seveN pistol from his possession. The footage additionally depicts
Dunn and the masked individual working in concert to disarm Jackson, and the masked individual
instructing Dunn to reposition himself to allow a clearer shot of Jackson. Jackson also testified
that he was shot again while on the ground. After acquiring Jackson’s Rolex, Dunn and the masked
individual jointly fled the premises. The foregoing evidence was sufficient to establish AWIGBH
under an aiding and abetting theory.
B. ARMED ROBBERY
Next, Dunn argues that there was insufficient evidence presented to support his armed
robbery conviction. We disagree.
As previously stated by this Court, the elements of armed robbery are as follows:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the defendant,
in the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to
reasonably believe that the article was a dangerous weapon, or represented orally
or otherwise that he or she was in possession of a dangerous weapon. [People v
Muhammad, 326 Mich App 40, 61; 931 NW2d 20 (2018) (quotation marks and
citation omitted).]
Armed robbery may occur when “a criminal defendant makes an effort or undertakes an overt act
with an intent to deprive another person of his property, but does not achieve the deprivation of
property.” People v Williams, 491 Mich 164, 174; 814 NW2d 270 (2012) (quotation marks
omitted).
The footage portraying the underlying physical altercation between Dunn and Jackson
plainly depicts Dunn as the person attempting to remove the FN Five-seveN pistol from Jackson’s
possession, as Jackson is visibly struggling and shouting. The masked individual is holding
Jackson’s Draco pistol and pointing the firearm at Jackson during the struggle, as one of the
assailants is yelling, “Let it go.” Further, after Jackson is disarmed of his firearms, the masked
individual instructs Jackson to give over his Rolex while continuing to point the Draco pistol in
Jackson’s direction. Taken together, the evidence similarly supports Dunn’s conviction of armed
robbery under an aiding and abetting theory.
C. FELON-IN-POSSESSION AND FELONY-FIREARM
Dunn was further convicted of multiple felonies related to his possession and use of a
firearm. We conclude that the prosecution presented sufficient evidence to permit the trial court

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to find Dunn guilty of the offenses of felon-in-possession and felony-firearm beyond a reasonable
doubt.
To be convicted of felon-in-possession, the requisite statute “requires proof that the
defendant was a convicted felon at the time he possessed a firearm.” People v Thigpen, 349 Mich
App 437, 454; 27 NW3d 647 (2023). In the present case, the parties stipulated to the fact that
Dunn was a felon ineligible to carry firearms at the time of the offense, and that his rights to own
a firearm had not been restored. Furthermore, the record indicates that Dunn possessed a firearm
at the time of the incident despite his status as a felon. Jackson testified that Dunn shot him,
implying that Dunn was in possession of a firearm. The pertinent footage further portrays Dunn
with a firearm when he forcibly removed Jackson’s FN Five-seveN pistol from his possession.
Thus, the elements of felon-in-possession were established beyond a reasonable doubt.
To be convicted of felony-firearm, one must (1) possess a firearm and (2) possess the
firearm during the commission or attempted commission of a felony. People v Burgenmeyer, 461
Mich 431, 436; 606 NW2d 645 (2000). As Dunn used a firearm in the commission of all three of
the aforementioned felonies, three felony-firearm convictions are properly supported by these
predicate felonies.2 Sufficient evidence was therefore presented to affirm Dunn’s three felony-
firearm convictions.
III. RIGHT TO A PUBLIC TRIAL
Dunn also contends that the removal of his mother from the courtroom violated his Sixth
and Fourteenth Amendment rights. We conclude that Dunn is not entitled to relief under the
applicable plain-error standard of review.
In criminal proceedings, issues must be raised at the time of trial to be preserved for appeal
because “requiring a contemporaneous objection provides the trial court an opportunity to correct
the error, which could thereby obviate the necessity of further legal proceedings and would be by
far the best time to address a defendant’s constitutional and nonconstitutional rights.” People v
Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999) (quotation marks and citation omitted).
In the instant matter, Dunn admits that this issue is presented in the first instance on appeal. The
issue is therefore not preserved.
For preserved issues, questions of law are to be reviewed de novo. People v Perez, 469
Mich 415, 418; 670 NW2d 655 (2003), citing People v Gonzalez, 468 Mich 636, 641; 664 NW2d
159 (2003). Unpreserved issues are instead reviewed for plain error. Carines, 460 Mich at 763.
“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id.
Once all three elements are proven, it is up to the discretion of the appellate court whether
to reverse. Id. However, “[r]eversal is warranted only when the plain, forfeited error resulted in
the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
2 See MCL 750.529; MCL 750.84(1)(a); MCL 750.224f (identifying these offenses as felonies).

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integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.”
Id. at 763-764 (quotation marks and citation omitted; second alteration in original).
Ordinarily, “[t]he third requirement [of the plain-error test] . . .requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Carines, 460
Mich at 763. However, “the erroneous denial of a defendant’s public-trial right is considered a
structural error.” People v Davis, 509 Mich 52, 67; 983 NW2d 325 (2022). And in Davis, the
Michigan Supreme Court
modified the Carines “plain error” test as applied to unpreserved structural errors.
.. .. In addressing the third prong, also known as the prejudice prong, the Davis
Court held that a forfeited structural error creates a formal presumption that this
prong of the plain-error standard has been satisfied. The formal rebuttable
presumption in cases of forfeited structural error shifts the burden to the prosecutor
to demonstrate that the error did not seriously affect the fairness, integrity, or public
reputation of the judicial proceeding. In such instances, the prosecutor must present
specific facts that affirmatively demonstrate that, despite the error, the overall
fairness, integrity, and reputation of the trial court proceedings were preserved.
[People v King, 512 Mich 1, 10; 999 NW2d 670 (2023) (quotation marks, citations,
and alterations omitted.]
“Given th[e] conceptual overlap between the third and fourth prongs of the plain-error standard
and that a forfeited structural error automatically satisfies the third prong of the plain-error
standard, a forfeited structural error is very likely to also satisfy the fourth prong of the plain-error
test.” Davis, 509 Mich at 75-76.
Under the federal and Michigan Constitutions, a criminal defendant is ensured the right to
a public trial. US Const, Ams VI and XIV; Const 1963, art 1, § 20. The Sixth Amendment right
to a public trial is applicable to the states through the Due Process Clause of the Fourteenth
Amendment. People v GR, 331 Mich App 58, 69; 951 NW2d 76 (2020). However, “the public-
trial right is not unlimited, and circumstances may exist that warrant the closure of a courtroom
during any stage of a criminal proceeding.” Davis, 509 Mich at 65. In Davis, the Supreme Court
determined that
to justify a courtroom closure, there must be an overriding interest that is likely to
be prejudiced, the closure must be no broader than necessary to protect that interest,
the trial court must consider reasonable alternatives to closing the proceeding, and
it must make findings adequate to support the closure. [Id. (quotation marks and
citation omitted).]
In addition, this Court has resolved that a singular disruption was not enough to remove the
defendant from the courtroom and that only a defendant who makes repeated disruptions and is
continually warned by the court to modify their behavior to avoid removal could be removed from
the courtroom. People v Buie, 298 Mich App 50, 59; 825 NW2d 361 (2012).
Previous Michigan jurisprudence has distinguished a partial closure of the court to a total
closure. “A partial closure occurs where the public is only partially excluded, such as when family

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members or the press are allowed to remain . . . .” People v Kline, 197 Mich App 165, 170 n 2;
494 NW2d 756 (1992). And because “the effect of a partial closure of trial does not reach the
level of a total closure . . . only a substantial, rather than a compelling reason for the closure is
required.” People v Russell, 297 Mich App 707, 720; 825 NW2d 623 (2012). However, partial
closure of the court to a criminal defendant’s family members may warrant additional scrutiny.
See Kline, 197 Mich App at 171 n 3. This Court posited in Kline that a criminal defendant’s family
members should not be removed from the court absent compelling reasons.3 Id.
Upon initial review, the pertinent record is sparse at best. As the trial court announced its
verdict, the following interaction transpired:
Unknown Speaker: He needs to see this.
He needs to see this.
Deputy: I don’t care.
The Court: With respect to count four—
Unknown Speaker: Okay.
Well, he needs to see this.
Deputy: Step out.
Unknown Speaker: The Judge needs to see this.
Deputy: You gonna go in the back.
Come on.
Let’s go in the back.
Unknown Speaker: The Judge needs to see this.
Deputy: Step out.
Unknown Speaker: He needs to see this.
3 In refusing to “condone the removal of family members from the courtroom in the absence of
compelling reasons,” the Kline Court acknowledged that the case before it did not involve removal
of family members. Kline, 197 Mich App at 171 n 3. Because Kline’s statement regarding the
higher scrutiny that should be applied to removal of a defendant’s family members was
unnecessary to its decision, it was arguably nonbinding obiter dictum. To the extent Kline’s
statement regarding the removal of family members was dictum, we may still rely on it as
persuasive authority. People v Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001).

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Deputy: Step out, before you go to jail.
Unknown Speaker: He needs to see this.
He knows who shot him.
He knows who shot him.
He knows who shot him.
After the cited exchange, the trial court continued its oration of the verdict, and the interruption
was not addressed further. On appeal, Dunn contends that the speaker was his mother and that she
was removed from the courtroom. The record, however, does not identify the unknown speaker,
nor does it clearly establish that the speaker was removed by the deputy. Even less clear is whether
the individual, if removed, sought to reenter the courtroom and, if so, how that situation was
handled. On these facts, we conclude that Dunn has forfeited this claim under the plain-error rule.
The trial court arguably erred if it permitted the removal of Dunn’s mother from the
courtroom. Trial judges have a recognized “obligation to maintain orderly proceedings and proper
decorum in the courtroom.” People v Jones, 442 Mich 893; 499 NW2d 344 (1993). Furthermore,
this Court has previously determined a defendant’s disruptions in the courtroom were considered
a justified reason to continue voir dire without his presence. Buie, 298 Mich App at 59. However,
the Buie Court required that the interruptions be repetitive and that there be previous warnings
from the trial court to rectify the disruptive behavior before subjecting the party to removal. Id.
While Dunn’s mother did make repeated statements interrupting the reading of the verdict, she
received no prior warnings from the court before her removal. Additionally, there is no indication
that the trial court considered reasonable alternatives to removal, or iterate findings supporting a
partial closure of the courtroom, as required by Davis, 509 Mich at 66.
But this error, if it occurred, was not plain. In Carines, 460 Mich at 763, the Michigan
Supreme Court clarified that by requiring that an error be plain, it meant the error was clear or
obvious. “A clear or obvious error under the second prong is one that is not subject to reasonable
dispute.” People v Allen, 507 Mich 597, 614; 968 NW2d 532 (2021). The trial court’s error in
removing the individual without prior warning cannot be deemed clear or obvious. There is little
instructive caselaw regarding the obligations of trial courts before removal of disruptive family
members. We have accepted, for the sake of addressing this issue, that such a requirement exists
as a result of the language in Buie regarding the proper procedure for the removal of a disruptive
defendant, in conjunction with the higher scrutiny applied to the removal of family members noted
in Kline. However, that is by no means a foregone conclusion, as the facts of Kline and Buie are
distinguishable from the present case in that neither directly involved the removal of disruptive
family members. Taking into consideration the rather ambiguous status of the law on the instant
matter, we conclude any error that occurred was not plain or obvious. And as previously stated,
the record is not clear as to the speaker’s relationship to Dunn, whether the speaker was actually
forced to leave the courtroom, and if so whether the speaker was permitted to reenter.
Consequently, we must deem Dunn’s claim of error to be forfeited and he is not entitled to relief
on these grounds.

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IV. FALSE TESTIMONY
Lastly, Dunn argues that the use of Jackson’s “false” testimony violated his state and
federal rights to due process. We disagree.
Dunn did not preserve this issue by objecting to the prosecution’s use of the challenged
testimony at trial. People v Clark, 330 Mich App 392, 433; 948 NW2d 604 (2019). We therefore
review this issue for plain error affecting Dunn’s substantial rights. Carines, 460 Mich at 763.
It is well established that “a State may not knowingly use false evidence, including false
testimony, to obtain a tainted conviction . . . .” People v Smith, 498 Mich 466, 475-476; 870 NW2d
299 (2015) (quotation marks and citation omitted). Under the United States and Michigan
Constitutions, no person shall be deprived of life, liberty, or property without due process of law.
US Const, Am XIV; Const 1963, art 1, § 17. Under Michigan law, “[i]t is inconsistent with due
process when the prosecutor, although not having solicited false testimony from a state witness,
allows it to stand uncorrected when it appears, even when the false testimony goes only to the
credibility of the witness.” People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986). When
“it should be obvious to the Government that the witness’s answer, although made in good faith,
is untrue, the Government’s obligation to correct that statement is as compelling as it is in a
situation where the Government knows that the witness is intentionally committing perjury.”
People v Brown, 506 Mich 440, 450 n 5; 958 NW2d 60 (2020) (quotation marks and citation
omitted). In cases of potentially inconsistent testimony, the witness’s preliminary examination
testimony may be used to permit the finder of fact to verify the witness’s credibility. People v
Donald, 103 Mich App 613, 617-618; 303 NW2d 247 (1981).4
However, this Court has determined that a conviction “offends a defendant’s due process
protections guaranteed under the Fourteenth Amendment” when it is “obtained through the
knowing use of perjured testimony.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285
(2009) (emphasis added; quotation marks and citation omitted). See also People v Thornton, 80
Mich App 746, 750; 265 NW2d 35 (1978) (“Based on existing authorities, we are convinced that
[error] occurs when . . .the prosecution knowingly presents false testimony.”) (Emphasis added).
Additionally, this Court has previously determined that the focus of this due-process inquiry is
“the misconduct’s effect on the trial,” and “not the blameworthiness of the prosecutor . . . .”
Aceval, 282 Mich App at 390 (quotation marks and citation omitted).
We conclude that Dunn has also forfeited this claim under the plain-error rule. The
prosecution did not err by presenting Jackson’s potentially inconsistent testimony. It is true that
Jackson’s statements before and during trial included several questionable assertions. Namely,
Jackson initially claimed to police that Dunn and the other individual withdrew black firearms and
fired at him. Despite this claim, Jackson later testified at trial that he did not see firearms on either
of these persons before being shot. Additionally, Jackson claimed during the preliminary
examination that he identified the other individual at the time of the attack through various physical
4 Although preliminary examination testimony may be used in assessing the credibility of a
witness, testimony from preliminary examinations may not be used substantively. Donald, 103
Mich App at 617-618.

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features, but later testified at trial that he did not know the other individual “at the time.” He then
backtracked this statement, clarifying that the other individual “looked familiar” and that Jackson
“knew of him.” When asked how he could recognize the other individual if that person’s face was
covered with a mask, Jackson referenced various distinctive features, such as the individual’s
complexion, tattoos, “darkness,” and voice. Further, while Jackson testified at trial that he did not
see the firearm used to shoot him, he additionally stated, “I seen and heard, a, a bow, yeah, straight,
straight ahead.” These statements are somewhat inconsistent as it remains unclear how Dunn could
“see” a sound and the direction of gunshots without actually seeing the firearm itself.
While the cited testimony may be inconsistent, the pertinent inquiry is whether the
prosecution knowingly utilized false testimony. Smith, 498 Mich at 475-476. “The defendant has
the burden of demonstrating that a witness’s testimony was, in fact, false.” People v Thurmond,
348 Mich App 715, 736; 20 NW3d 311 (2023). “Although an inconsistent prior statement may be
a mechanism to impeach a witness’s credibility at trial, it is not definitive evidence that the trial
testimony is false.” Id. at 737 (quotation marks and citation omitted). In the present case, while
Jackson’s statements at his preliminary examination were certainly inconsistent with his later trial
testimony, there is no evidence in the record to support that those statements were patently false.
As Dunn has not met his burden to demonstrate that Jackson’s testimony was false, the use of this
testimony does not violate the rule in Smith. Accordingly, the prosecution did not violate Dunn’s
due-process rights by presenting Jackson’s inconsistent testimony.
Affirmed.
/s/ Daniel S. Korobkin
/s/ Adrienne N. Young
/s/ Mariam S. Bazzi

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