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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UNPUBLISHED

December 14, 2017

v No. 332793

Kent Circuit Court

RODNEY SCOT ARMSTRONG, JR., LC No. 14-006822-FH

Defendant-Appellant.

Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of two counts of assault with the intent 

to murder, MCL 750.83; possession of a firearm during the commission of a felony, MCL 

750.227b; and felon in possession of a firearm, MCL 750.224f. For the reasons explained in this 

opinion, we affirm.

I. BASIC FACTS

Defendant’s charges stem from a shooting that occurred near the Buffalo Wild Wings 

restaurant in downtown Grand Rapids at approximately midnight on the night of June 17 to June 

18, 2014. Earlier in the day, a group of teenagers went downtown to hang out at a Swing dance 

event being held at Rosa Parks Circle. The group of teenagers included Jordan Forbes, Jamond 

Means, Shadiah McIntosh, Tasia Harris, and Nashay Minter. There was evidence that some of 

the teenagers fought with others at Rosa Parks Circle. 

Although the teenagers repeatedly denied it, there was also evidence that one or more 

members of their group clashed with defendant at Buffalo Wild Wings at approximately 10:30 

p.m. Defendant was beaten and left unconscious on the sidewalk outside the restaurant. 

Testimony showed that defendant regained consciousness after a few minutes and went into the 

restaurant to clean up. He refused medical treatment and refused to cooperate with an 

investigating officer. Defendant’s friend, Ngoc Pham, drove him home. 

There was cell phone and video evidence supporting the conclusion that, after being 

dropped home by Pham, defendant drove back downtown. At that time, the teenagers were 

standing near a parking lot that was adjacent to the restaurant. The evidence indicated that 

defendant circled in front of the restaurant. He then parked his car, walked down an alley and 

through the parking lot next to which the teenagers were standing, and fired three shots at them. 
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Forbes was struck in the back and suffered a severed spine. Means was shot in the buttocks. 

Defendant then fled the scene and drove out of the area. The teenaged witnesses identified the 

shooter as the man who was the victim of the beating earlier in the evening.

At trial, defense counsel asserted that the teenaged witnesses fought with others earlier in 

the evening and that they were involved in gang activities. In light of these activities, counsel 

argued that others had a motive to shoot at the teenagers. He further argued that the teenagers 

were lying to protect each other and only identified defendant as the man who shot Means and 

Forbes in order to cast themselves in the role of victims. In that way, he maintained, they might 

prevent police officers from arresting their friends for the attack on defendant. He further stated 

that the other circumstantial evidence—the cell tower records and video evidence—did not 

demonstrate that defendant was the shooter. The jury found defendant guilty as charged.

II. PROSECUTORIAL MISCONDUCT

Defendant first argues that the prosecutor improperly elicited false testimony from the 

teenaged witnesses and failed to correct the falsehoods. He also maintains that the prosecutor 

improperly vouched for the teenaged witnesses’ identification testimony. 

We review de novo a claim that due process was violated. People v Smith, 498 Mich 

466, 475; 870 NW2d 299 (2015). This Court also reviews de novo a claim of prosecutorial 

misconduct. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). However, 

because defendant did not preserve these claims, our review is limited to plain error affecting 

defendant’s substantial rights. People v Bass, 317 Mich App 241, 272; 893 NW2d 140 (2016). 

In order to establish plain error, defendant must show the occurrence of a clear or obvious error 

and that the error affected the outcome of the lower court proceeding. Id.

“It is well settled that a conviction obtained through the knowing use of perjured 

testimony offends a defendant’s due process protections guaranteed under the Fourteenth 

Amendment.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). When the 

prosecutor knows that a witness has testified falsely, the prosecutor has an affirmative duty to 

correct the testimony. Smith, 498 Mich at 475-476. “[I]t is the effect of a prosecutor’s failure to 

correct false testimony that is the crucial inquiry for due process purposes.” Id. at 476 (citation 

and quotation marks omitted). Thus, the focus is on the fairness of the trial and not the 

culpability of the prosecutor. Aceval, 282 Mich App at 390. “A prosecutor’s capitalizing on the 

false testimony, however, is of particular concern because it reinforce[s] the deception of the use 

of false testimony and thereby contribute[s] to the deprivation of due process.” Smith, 498 Mich

at 476 (citation and quotation marks omitted). “If a conviction is obtained through the knowing 

use of perjured testimony, it must be set aside if there is any reasonable likelihood that the false 

testimony could have affected the judgment of the jury.” Aceval, 282 Mich App at 389 (citation 

and quotation marks omitted).

Defendant argues that, based on video evidence, it was obvious that Means, Forbes, 

Harris, McIntosh, and Minter lied about their role in the fights at Rosa Parks Circle and lied 

about their involvement in the attack on defendant. While there are apparently conflicts between 

the teenagers’ testimony and certain events depicted in the video footage, the video evidence is 

not definitive proof of everything that occurred on the evening in question and it does not 
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establish that the teenagers lied about everything that happened that night, particularly those 

events not captured on video. A prosecutor is under no obligation to disbelieve his or her own 

witnesses. People v Lester, 232 Mich App 262, 278-279; 591 NW2d 267 (1998), overruled not 

in relevant part People v Chenault, 495 Mich 142; 845 NW2d 731 (2014). As such, the 

prosecutor could conclude that the witnesses were being truthful on many, if not all, the matters 

at issue. 

To the extent that the video evidence establishes some inaccuracies or some untruths in 

the teenagers’ testimony, it is clear that defendant is not entitled to relief because the jury was 

made aware of the conflict between the teenagers’ testimony and the video evidence and the

prosecutor did not rely on the teenagers’ purported lies in obtaining a conviction. There is no 

indication that the prosecutor attempted to keep the video footage from defendant. Cf. People v 

Parker, 230 Mich App 677, 690; 584 NW2d 753 (1998). Instead, the video footage in question 

was played at trial, the teenagers’ were examined about the conflicts between their testimony and 

the video footage, and, when confronted with video footage, Forbes, in particular, acknowledged 

that he had lied about certain facts. Thus, this is not a case where the jury was left with a false or 

misleading impression. Cf. Smith, 498 Mich at 478. Rather, the jury had all the information 

necessary to assess the credibility of these witnesses and to determine whether and to what extent 

the witnesses were being truthful. See People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999) 

(“[A] jury is free to believe or disbelieve, in whole or in part, any of the evidence presented.”). 

Moreover, it is evident that the prosecutor did not believe the witnesses’ implausible testimony 

about the fights earlier in the evening, and the prosecutor did not attempt to exploit this 

testimony to obtain a conviction. To the contrary, the prosecutor argued to the jury that the 

witnesses were not being truthful about those events. The prosecutor told the jury that the 

evidence showed that the teenaged witnesses had been fighting at Rosa Parks Circle and “almost 

certainly” participated in the attack on defendant. He argued that the evidence demonstrated that 

Means and Forbes were “absolutely” involved. On this record, where the jury was apprised of 

the video evidence and the prosecutor conceded that the teenagers lied about certain facts, there 

is no reasonable likelihood that any false testimony by the teenagers regarding events at Rosa 

Parks Circle or the attack on defendant affected the judgment of the jury. Consequently, 

defendant is not entitled to relief on appeal. See Aceval, 282 Mich App at 389. 

On appeal, defendant also argues that the prosecutor’s remarks amounted to improper 

vouching for the eyewitnesses. Specifically, defendant asserts that the prosecutor had no way to 

discern when the witnesses were lying and when they were being truthful. According to 

defendant, by arguing that the witnesses’ identifications were credible even though they had lied 

about other things, the prosecutor implied that he had special knowledge. 

A prosecutor may not vouch for a witness’ credibility by implying that he or she has 

some special knowledge that the witness is telling the truth. People v Bahoda, 448 Mich 261, 

276; 531 NW2d 659 (1995). However, a prosecutor is free to argue from the facts that a witness 

should be believed. People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). In this case, 

while conceding that the teenagers were not entirely truthful, the prosecutor argued that their 

description of the shooting and their identification of defendant was worthy of belief. The 

prosecutor asserted that the eyewitnesses had a motive to lie about their involvement in beating 

defendant, but that they did not have such a motive when it came to identifying him as the 

shooter. The prosecutor further emphasized that it was highly implausible that the teenaged 
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eyewitnesses would conspire to frame defendant. He noted too that an officer confirmed that one 

of the teenagers identified defendant moments after the shooting, which made it unlikely that her 

identification was part of a conspiracy to frame defendant. The prosecutor also relied on 

independent circumstantial evidence that defendant was the shooter. He cited the cell phone and 

video evidence that tended to show that defendant returned to the area of Buffalo Wild Wings 

after being beaten by the teenagers, circled the restaurant, parked, and walked to the area of the 

shooting. This circumstantial evidence bolstered the eyewitnesses’ identifications, and the 

prosecutor could rely on it when arguing credibility. There was also no indication that the 

prosecutor improperly placed the prestige of his office behind his arguments or claimed special 

knowledge. See Bahoda, 448 Mich at 277 n 26. Thus, the prosecutor did not improperly vouch 

for their credibility, and defendant is not entitled to relief on this basis.

III. HEARSAY WITNESS

Defendant next argues that the trial court prevented him from presenting a defense when 

it precluded a witness, who was present at Rosa Parks Circle during the fighting, from testifying 

that he heard an unidentified black male threaten to shoot someone. 

Constitutional questions are reviewed de novo. Smith, 498 Mich at 475. We review a 

trial court’s evidentiary decisions for an abuse of discretion. People v Yost, 278 Mich App 341, 

353; 749 NW2d 753 (2008). A trial court abuses its discretion when it selects an outcome that is 

outside the range of reasonable and principled outcomes. Id. This Court reviews de novo the 

proper interpretation and application of the rules of evidence. People v Duncan, 494 Mich 713, 

723; 835 NW2d 399 (2013). “[I]t is necessarily an abuse of discretion to admit evidence that is 

inadmissible as a matter of law.” Yost, 278 Mich App at 353.

Although a defendant has a constitutional right to present a defense, which includes the 

right to call witnesses, that right is not absolute. Id. at 379. The defendant “must still comply 

with established rules of procedure and evidence designed to assure both fairness and reliability 

in the ascertainment of guilt and innocence.” Id. (quotation marks and citations omitted). A trial 

court does not violate a defendant’s constitutional right to present a defense when it properly 

enforces the rules of evidence. People v Unger, 278 Mich App 210, 250-251; 749 NW2d 272 

(2008).

At trial, defendant indicated that he intended to call a witness, who was present during 

the fights at Rosa Parks Circle, to testify that he heard an unidentified “black male” scream:

“I’m going to shoot you.” There were numerous individuals fighting at Rosa Parks Circle, and 

there is no indication that the threat was directed toward one of the teenagers involved in this 

case. Nevertheless, defense counsel argued that the statement was relevant because the threat 

suggested that someone else might have had a motive to shoot at the teenagers. The prosecutor 

objected to the admission of this testimony based on hearsay. Defense counsel conceded that the 

proposed testimony was hearsay, but defense counsel argued that it was admissible as an excited 

utterance, MRE 803(2), or under the catchall exception provided by MRE 804(b)(7). Citing 

MRE 403, the trial court excluded the evidence, explaining that any connection between the 

threat and the events at issue was too speculative and might confuse the jury.
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Hearsay is a statement, other than the one made by the declarant while testifying at trial,

that the proponent offers to prove the truth of the matter asserted. MRE 801(c). Defense counsel

offered the witness’ testimony to prove the truth of the matter asserted: that the unidentified 

declarant intended to shoot someone. Thus, the statement was inadmissible hearsay unless an 

exception applied. MRE 801(c); MRE 802. Even assuming that the statement was admissible 

under an exception to the hearsay rule, the trial court could properly bar its admission under 

MRE 403, if the “probative value” of the evidence was “substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the jury . . . .” 

Relevant evidence is “evidence having any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” MRE 401. In this case, defendant contends that the hearsay 

statement was relevant to the identity of the shooter insofar as the statement suggested that 

someone other than defendant had a motive to shoot at the teenagers. However, there were 

numerous individuals fighting at Rosa Parks Circle, and, when seeking to introduce the 

statement, defense counsel offered no reason to suppose that the threat by the unidentified 

declarant was directed at one of the teenagers involved in this case. Absent a basis to reasonably 

infer that the statement was directed at the teenagers in question, any assertion that the statement 

demonstrates that someone other than defendant wished to shoot one or all of the teenagers is 

mere conjecture and speculation. Because this statement’s relevance rested on speculative 

inferences, it had little—if any—probative value. See McCormick on Evidence § 185 (7th ed.) 

(“[E]vidence lacking in substantial probative value may be condemned as ‘speculative.’”). And,

the trial court did not abuse its discretion by concluding that the statement’s scant probative 

value was substantially outweighed by the risk that admission of a statement made by an 

unknown declarant to an unspecified individual would confuse or mislead the jury, particularly 

where the prosecution could not cross-examine the declarant. Under these circumstances, the 

trial court’s decision to bar the hearsay testimony under MRE 403 fell within the range of 

reasonable and principled outcomes, Yost, 278 Mich App at 353, and the exclusion of this 

evidence did not deny defendant the right to present a defense, Unger, 278 Mich App at 250-251. 

IV. COMPILATION VIDEO

Defendant also argues that the prosecutor committed misconduct by showing the jury a 

compilation video during closing argument. More specifically, he argues that there is a 

“substantial difference between raw evidence (which was admitted) and evidence which is 

constructed/created from that raw evidence using unknown methods and/or safeguards.” He then 

argues that the prosecutor could not rely on the newly “created evidence” in his closing argument

because to do so involved reliance on evidence that was not admitted at trial. Defendant further 

suggests that the compilation would not be admissible under MRE 1006. 

Defendant’s claim is unpreserved because he failed to object to the prosecutor’s use of 

the video during closing. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). 

This Court reviews de novo on a case-by-case basis whether the prosecutor engaged in conduct 

that deprived the defendant of a fair trial. Id. However, this Court reviews an unpreserved claim 

of prosecutorial misconduct for plain error affecting substantial rights. Id.
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Initially, we note that, although defendant discusses the admissibility of the compilation 

video, he also concedes that the prosecutor did not seek the admission of the compilation video 

and that the trial court did not admit it into evidence. Because the compilation video was not 

admitted, the arguments concerning the compilation’s admissibility under MRE 1006 or another 

rule of evidence are inapposite. Instead, the prosecutor used the video as a visual aid during 

closing and the issue on appeal is whether this use of a visual aid amounted to misconduct. 

“The purpose of closing argument is to allow attorneys to comment on the evidence and 

to argue their theories of the law to the jury.” People v Finley, 161 Mich App 1, 9; 410 NW2d 

282 (1987). “Closing argument is not the time to introduce new evidence.” Id. However, 

during closing arguments, the attorneys may use exhibits, including films, which were properly 

admitted into evidence at trial. People v Coddington, 188 Mich App 584, 603; 470 NW2d 478 

(1991); People v Mundy, 63 Mich App 606, 608; 234 NW2d 663 (1975). See also People v 

Walters, 223 Mich 676, 680; 194 NW 538 (1923). Depending on the circumstances, attorneys 

may also use visual aids during closing arguments. Campbell v Menze Const Co, 15 Mich App 

407, 409-410; 166 NW2d 624 (1968). See also People v Potter, 213 Mich 301, 307; 182 NW 

144 (1921). However, in making closing arguments, the prosecutor may not argue facts that are 

not supported by the evidence admitted at trial, nor may the prosecutor mischaracterize the 

evidence. People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001). Accordingly, it 

would be error for the prosecutor to use a demonstrative aid that did not represent the evidence 

actually admitted at trial, that amounted to a mischaracterization of the evidence, or that 

amounted to other improper argument. 

In his closing argument, the prosecutor summarized the testimony by a detective wherein 

the detective described the videos that the police collected from various locations in the area of 

the shooting. The prosecutor asked the jury to “watch the video, or all the videos combined into 

a compilation which shows the defendant’s movements.” That is, the prosecutor represented that 

the compilation was a video that combined the videos actually admitted into evidence and about

which the detective testified. The prosecutor then played the compilation for the jury. The 

compilation video consists of various snippets of footage taken from cameras at various locations 

in the time around the shooting.1 The individual segments are separated by the appearance of a 

blue screen with written text identifying the camera location for the footage that will appear next. 

At points, the video pauses and objects or persons in the video—such as a vehicle with a missing 

hubcap or a man wearing white socks—are highlighted by the appearance of a light circle. At 

trial, during the playback, the prosecutor pointed out how, when viewed in the selected order, the 

videos admitted into evidence showed the car associated with defendant moving through the area 

near the time of the shooting and showed that it stopped at a nearby location that enabled the 

driver to approach the teenaged victims. He noted that the videos appeared to show the driver, 

who was wearing clothing consistent with the eyewitnesses’ testimony, approach the scene of the 

shooting at around the time of the shooting, and then flee from the scene afterward. Thus, the 

record shows that the prosecutor used the compilation video as a demonstrative aid as part of the 

prosecutor’s argument about how the jury should view the videos admitted into evidence.

 1 Defendant has provided the compilation video on appeal, and we have reviewed it. 
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Defendant maintains that it was error for the prosecutor to use the compilation because 

the compilation amounted to new evidence created by the prosecutor and thus the use of the 

compilation amounted to an argument based on evidence not admitted at trial. Specifically, he 

argues that the compiled video presented a “compelling version of events that was not obvious 

from the evidence admitted at trial” and that it “was slanted towards the prosecution’s view of 

events.” However, defendant does not argue that the prosecutor used videos segments in the 

compilation that were not actually admitted at trial. He merely states that the prosecutor 

assembled the videos in a compelling sequence—that is, he essentially faults the prosecutor for 

making a convincing argument. But, the prosecutor was free to argue the evidence and the 

reasonable inferences from the evidence in support of his theory of the case. Bahoda, 448 Mich 

at 282. In assembling the videos in a particular order and highlighting certain images, the

prosecutor did not offer new evidence, nor did the prosecutor distort the video images that had 

been admitted into evidence. Instead, the prosecutor simply used admitted video evidence 

during closing arguments as a demonstrative aid. We see nothing improper in the prosecutor’s 

use of a demonstrative aid during closing arguments, and defendant has not shown plain error. 

See Bennett, 290 Mich App at 475. 

Moreover, even if we were to conclude that the prosecutor should not have used the 

compilation video, defendant has not shown that the error affected his substantial rights. There 

is no indication the actual videos admitted at trial were unavailable for the jury’s review during 

deliberations, and defense counsel had the opportunity to react to the compiled video and to 

argue that the jury should not view the video evidence in the manner suggested by the 

prosecutor. Further, the trial court instructed the jury that the parties’ closing arguments were 

not evidence; the evidence, it told the jury, was the sworn testimony and the exhibits admitted at 

trial. Jurors are presumed to follow their instructions, and the trial court’s instruction cured any 

minimal prejudice. Unger, 278 Mich App at 235. Thus, defendant has not shown that the 

prosecutor committed outcome determinative error by using the compiled video as a 

demonstrative aid during closing argument.

V. CUMULATIVE ERROR

Finally, defendant argues that, even if the errors he identified on appeal do not 

individually warrant relief, the cumulative prejudice of the errors would warrant a new trial. 

However, defendant has not identified any actual errors, and thus there is no cumulative effect of 

errors that would warrant relief. People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 

(2007).

Affirmed.

/s/ Jane E. Markey

/s/ Joel P. Hoekstra

/s/ Amy Ronayne Krause