PEOPLE v BROWN Docket No. 158663. Decided December 3, 2020. Troy A. Brown was convicted by a jury in the Macomb Circuit Co urt of one count of firstdegree criminal sexual conduct, MCL 750.520b(1)(a). According to the victim, defendant threatened her with a belt and then forced her legs open and pe netrated her. The victim disclosed the assault to her brother the next day. Defendant agreed to c ome to the police station for an interview and voluntarily spoke to the police for approximately three hours. The entirety of defendant’s interview with two de tectives was videorecorded; ho wever, the video was not admitted at trial. Instead, the detectives testified as to what transpi red during the interview. At trial, one detective testified that defendant said that the truth was “pro bably somewhere in the middle” of the victim’s story and defendant’s story. Defense counsel cros s-examined the detective about whether the detective—not defendant—was actually the one who as ked defendant in the interview whether the truth was somewhere in the middle. Defense counsel asked whether the video should be shown, but the prosecutor objected, and the trial court sust ained the objection. When defense counsel continued to question the detective, the prosecutor rei nforced his position on redirect examination instead of conceding that the detective’s earlier t estimony was incorrect. During closing arguments, defense counsel again argued to the jury tha t the detective’s testimony was incorrect, but the prosecutor obj ected, and the court sustained the objection. Following a five-day jury trial, defendant was convicted and sentenced to the statut ory mandatory minimum of 25 years in prison, MCL 750.520b(2)(b), and to a maximum of 60 years in prison. Defendant appealed. In an unpublished order entered on June 28, 2017 (Docket No. 33605 8), the Court of Appeals, S AAD , P.J., and S ERVITTO and G LEICHER , JJ., granted a stipulated reque st to expand the record to inc lude the videorecording of the poli ce interview. The video revealed that the detective, in fact, had been the one to ask defendant if the tr uth was somewhere in the midd le. The video further showed that defendant, in response to the d etective’s questioning, did not move or make any gesture whatsoever. In an unpublished order entered on July 25, 2017, the Court of Appeals, S ERVITTO , P.J., and J ANSEN and S AAD , JJ., granted defendant’s motion to remand for an evidentiary hearing. On remand, the trial court conduc ted a hearing and heard testim ony from defense counsel. In an opinion and order, the trial court denied defendant’s request f or a new trial. Defendant appealed, and in an unpublished per curiam opinion issued on October 18, 2018, the Court of Appeals, O’B RIEN , P.J., and K. F. K ELLY and F ORT H OOD , JJ., affirmed. Defendant sought leave to appeal in the Supreme Court. Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. LoomisIn a unanimous per curiam opinion, t he Supreme Court, in lieu of granting leave to appeal and without hearing oral argument, held : A prosecutor may not knowingly use false evidence, including f alse testimony, to obtain a tainted conviction, and a prosecutor has an affirmative duty to correct patently false testimony, especially when that testimony c onveys to the jury an asserted confession from the defendant. In this case, the detective testified that defendant said that the truth between the victim’s allegations and defendant’s claims of innocence was actually “somewhere in the middle.” This claimed confession, however, was false, as evidenced by the videorecord ing of the interview. Therefore, the prosecutor elicited false testimony from the detective on d irect examination. The prosecutor then allowed this false testimony to stand uncorrected. At mos t, the prosecutor’s direct examination and defense counsel’s cross-examination left for th e jury the task of determining the detective’s credibility regardi ng the claimed confession. And even if defense counsel’s questioning worked to correct the detective’s inaccurate statem ents, the prosecutor failed in his duty to correct false testimony by subsequently attempting on r edirect examination to restore the detective’s credibility regarding his initial statements. Furt hermore, the attorneys’ closing arguments did not correct or alleviate the harm done by the det ective’s testimony. Accordingly, the prosecutor’s conduct failed to comport with due process. D efendant was entitled to a new trial because there was a reasonable probability that the prosecution ’s exploitation of the false testimony affected the verdict. T he trial presented a credibil ity contest between d efendant and the victim. The prosecutor not only failed to correct the false te stimony, which essentially claimed that defendant confessed to the crime, but the prosecutor under took affirmative actions to cloud defense counsel’s efforts to cor rect the record. Accordingly, defendant was entitled to a new trial. Court of Appeals judgment reversed; defendant’s conviction vac ated; and case remanded for a new trial.

©2020 State of MichiganFILED December 3, 2020

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 158663 TROY ANTONIO BROWN, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

P ER C URIAM

. At issue is whether defendant, Troy Antonio Brown, is entitled to a new trial because the detective who conducted defendant’s police interview testif ied falsely against him. We conclude that (1) the detective’s testimony against defendant w as false, (2) the prosecutor failed to correct the false testimony, and (3) there is a reaso nable likelihood that the uncorrected false testimony affected the judgment of the jury. People v Smith , 498 Mich 466, 475-476; 870 NW2d 299 (2015). Therefore, we reverse the j udgment of the Court of Appeals, vacate defendant’s conv iction, and remand to the trial court for a new trial. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 I. FACTS AND HISTORY Defendant lived across the stre et from the victim’s babysitter. On April 27, 2015, the 11-year-old victim was at defendant’s home playing with his two children and the babysitter’s children. According to the victim, defendant told her to go to his bedroom, and he locked the other children in a playroom. In the bedroom , he threatened to “whoop” the victim with a belt, and then he forced her l egs open and pe netrated her vagina with his penis. Afterward, defendant tol d her not to say anything and g ave her a dollar. The victim then went back to her babysitter’s house. She disclosed the as sault to her adult brother the next day. Defendant agreed to come to the police station for an interview and voluntarily spoke to the police for approxima tely three hours. Detective-S ergeant Robert Eidt was one of two detectives who participated in defendant’s interview, th e entirety of which was videorecorded. At trial, the video was not admitted. Instead, the detectives testified as to what transpired during the inter view. The prosecutor concluded his direct examination of Eidt by asking about Eidt’s questioning of defendant: Q . At some point did you confront the Defendant with the fact t hat [the victim] was staying [sic] one thing and [that defendant’s] story didn’t match up?
A . Yes, I did. Q . All right. And what was [d efendant’s] response?
A . He said that it was probably somewhere in the middle. Q . That what was probably so mewhere in the middle?
A . The truth.3 A short time later during the di rect examination, the prosecuto r repeated this point to conclude his questioning of Eidt: Q . So Sergeant, you had indicated that the Defendant said that the truth was probably somewhere in the middle?
A . Yes. Following the prosecutor’s direct examination of Eidt, defense counsel asked for and was granted a recess to revie w the videorecorded interview before beginning his crossexamination. Defense counsel the n cross-examined Eidt about wh ether he was actually the one who asked defendant whether t he truth was somewhere in the middle: Q . I asked for a recess to go back to this and watch it, to mak e sure my notes were accurate. If I told you the DVD say s that you sa id the truth’s somewhere in the middle and [defendant] never said that word, w ould you have any reason to dispute that?
A . As I said before, the report I did not author and this did h appen a year and a half ago and I reviewed the report and that’s what t he report says. Defense counsel then asked, “Do w e need to show this part of th e video?” But the prosecutor objected on the ground that the question was argumen tative, and the trial court sustained the objection. Defense counsel then continued his cr oss-examination of Eidt: Q . Do you, do you disagree with my position that the video show s you saying the truth is somewhere in the middle and not [defend ant], at 6:49:50, it’s not him but you that says that?
A . It’s possible. Q . So your testimony earlie r could be incorrect?
A . About that, yes. Instead of conceding th e point, the prosecu tor reinforced his p osition on redirect examination, asking Eidt if one of defendant’s responses during the interview was “that the4 truth is somewhere in the middl e[.]” Defense counsel objected before Eidt could answer, and defense counsel again said, “[I]f we want to show the video I gladly will.” But the prosecutor responded that “we c an rely on the previous testimon y and the report,” and the trial court agreed. Closing arguments were held the next day. When defense counsel argued to the jury that he had asked for the recess to mak e sure that his rev iew of the DVD was correct, that his notes were accurate, and that Eidt lied, the prosecuto r objected on the ground that this was “Counsel’s testimony of what he saw” on the DVD and th at “this is facts not in evidence,” and the trial court sustained the objection. And wh ile the prosecutor did not specifically mention the “truth i s in the middle” statement in his closing argument, he did argue during rebuttal: Counsel suggested that I’m hid ing something from you by not showing you the three-hour video . Do you really think you need to watch three hours of that kind of manipulation? You don’t, because y ou have him here in the flesh. That’s even better, and you can judge for y ourselves whether or not he’s lying. Following the five-day jury tri al, defendant wa s convicted as charged on one count of first-degree criminal sexual conduct, MCL 750.520b(1)(a). H e was sentenced to the statutory mandatory minimum of 25 years in prison, MCL 750.520b (2)(b), and a maximum sentence of 60 years. On appeal, the Court of Appeals granted a stipulated request to expand the record to include the videorecording of the police i nterview. People v Brown , unpublished order of the Court of Appeals, entered June 28, 201 7 (Docket No. 336058). The video revealed that Eidt, in fact, had been the one to ask defendant if the truth was somewhere in the middle. And the video further showed that def endant, in response to5 Eidt’s questioning, did not move or make any gesture whatsoever . The Court of Appeals granted defendant’s motion to rem and for an evidentiary hearing

. People v Brown , unpublished order of the Court of Appeals, entered July 25, 201 7 (Docket No. 336058). On remand, the trial court conducted a hearing and heard testim ony from trial defense counsel. In an opinion and order, the trial court denied defen dant’s request for a new trial. Defendant appealed, and the Court of Appeals affirmed. People v Brown , unpublished per curiam opinion of the Court of Appeals, issued October 18, 2018 (Docket No. 336058). We are now tasked with determini ng whether the detective’s test imony, in conjunction with the prosecutor’s actions, v iolated defendant’s constitutio nal right to due process.

II. LEGAL PRINCIPLES A due-process violation presen ts a constitutional question that this Court reviews de

novo. People v Wilder , 485 Mich 35, 40; 780 NW2d 26 5 (2010). A prosecutor’s use of false testimony is inconsi stent with due process. Smith , 498 Mich at 475. In other words, “a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction . . . .” Napue v Illinois , 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). 1 Importantly, a prosecutor “has an affirmative duty to correct” patently false testimony, Smith , 498 Mich at 476 (emphasis added), especially when that testim ony conveys to the jury an asserted confession from the defendant. See People v Tanner , 496 Mich 199, 254; 853 NW2d 653 (201 4) (“[C]onfessions and incrimin ating statements constitute perhaps the most comp elling and importa nt evidence a vailable to fact-finders in

1 Although Justice Z AHRA dissented in Smith , he expressed “agree[ment] with this fundamental proposition, and imagine[d] that no one denies it.” Smith , 498 Mich at 494- 495 (Z AHRA , J., dissenting).6 the justice system’s search for truth.”). And while “not every contradiction is material and the prosecutor need not correct every instance of mistaken or i naccurate testimony, it is the effect of a prosecutor’s failure to correct false testimony that is t he crucial inquiry for due process purposes.” Smith , 498 Mich at 476 (quotation marks and citations omitted). A prosecutor’s referencing, or taki ng advantage of, false testimo ny is of paramount concern because it “reinforce[s] the deception of the use of false test imony and thereby contribute[s] to the deprivation of due process.” Id . (quotation marks and citation omitted; alterations by the Smith Court). “A new trial is required if the uncorrected false tes timony ‘could . . . in any reasonable like lihood have affected the jud gment of the jury.’ ” Id ., quoting Napue , 360 US at 271-272.

III. ANALYSIS At trial, Eidt testified that def endant said that the truth bet ween the victim’s allegations and defendant’s claim s of innocence was actually “s omewhere in the middle.” In essence, Eidt told the jury that defendant at most confessed to committing first-degree criminal sexual conduct or at a minimum admitted that he engage d in sexual activity with the victim. This claimed confession, however, was false, as ev idenced by the videorecording of the interview. During the interview, Eidt ac tually asked defendant if the truth was “somewhere in the middle,” but defendant gave no indi cation—verbally or nonverbally—in response to this questioning. 2 Therefore, the prosecutor elicited false testimony from the detectiv e on direct examination.

2 The Court of Appeals explained, “[I]t is apparent that defenda nt made a non-verbal response to the challenged statem ent about the truth being some where in the middle, nodding his head in a discernable affirmative reply.” Brown , unpub op at 5. As a result,7 Our inquiry then turns to whether the prosecutor allowed this f alse testimony to stand uncorrected. Both the trial court and the Court of Appea ls held that defense counsel sufficiently impeached E idt on this point and thus that there w as no need for the prosecutor to correct the record. Certain ly, after the prosecutor elicite d Eidt’s response during direct examination, defense counsel attempted to set the record straig ht. Defense counsel requested a recess and then questioned Eidt about what was actu ally said during the interview. In response to defe nse counsel’s questioning, Eidt initially continued to testify that defendant made the inculpat ory statement as was recounted in the police report, but in response to Eidt’s comments, defense counsel asked if the video of the interview should be played for the jury. The prosec utor objected to this questioni ng, and the trial court sustained the objection. When de fense counsel continued his ex amination, he again asked if it was the detective, and not defendant, who made the inculp atory statement. Importantly, the detective never admitted that he was mistaken. Rather, he simply stated that it was “possible” he was wrong and agreed that his testimo ny “could be incorrect.”

the Court held that “even if that particular portion of the vid eo would have been shown to the jury to correct Sergeant Ei dt’s testimony . . . , the jury would have learned that although defendant did not orally state t hat the truth was somewhere in the middle, he did indeed nod in assent when it was said.” Id . We have reviewed the videorecorded interview, and the Court’s assertions are in error. At one point in the inter view, Detective James Twardesky asked a similar question that “somewhere in the middl e is probably the truth, right like any ot her story?” Defendant made a slight nod to th is question but seconds later said, “I told you I didn’t touc h her.” Indeed, defendant nodde d in response to many of the detectives’ questions but denied the criminal allegations over 20 times throughout the three-hour interview. But even if this one nod constituted evi dence that defendant agreed with Twardesky’s assertion, Eidt’s testimony nonetheless remain ed inaccurate and misleading because Eidt indicated at trial that while he was qu estioning defendant, defendant made the incriminating statement, not that defendant simply nodded his head in response to another detective’s questioning.8 We cannot conclude, as the trial court and Court of Appeals did , that this questioning sufficiently corrected the record . At most, the prosecutor’s d irect examination and defense counsel’s cross-examination left for the jury the task of deter mining Eidt’s credibility regarding the claimed confession. Even if defense counsel’s questioning worked to correct Eidt’s inaccurate statements, the prosecutor failed in his duty to correct false testimony by subsequently attempting on redirect examinati on to restore Eidt’s credibilit y regarding his initial statements. Despite being aware that there might be video evid ence to the contrary, the prosecutor asked Eidt, “And to s ummarize some of the responses that you got from [defendant] is that . .



### . the truth is somewhere in the middle?” Defense counsel object ed and argued that the prosecutor was mischaracterizing Eidt’s tes timony and that Eidt actually admitted that “he does no t remember” whether defendant confessed. 3 Instead of correcting the record and having E idt concede that defendant ne ver made any such admission, the prosecutor said, “Your Honor, we can rely on the previous testimony and the [police] report.” Eidt’s te stimony on direct and cross-exa mination was contradictory, and the police report was patently false. 4 Thus, the redirect examination did nothing to

3 Defense counsel’s characterizat ion of Eidt’s testimony, i.e., that Eidt simply “[did] not remember” what defendant said during the interview, further ind icates that Eidt did not unequivocally admit that he, rath er than defendant, made the in culpatory statement.

4 According to the police report, defendant told Eidt during the interview that “the truth was probably in the middle.” T he police report was not admitte d at trial, but Eidt testified that this is what the report indicated. Thus, even though Eidt correctly relayed the information in the police report, the report itself was factual ly inaccurate, and the prosecutor failed to adhere to his duty to correct the record w hen he told the court and the jury that they could “ rely on . . . the report.”9 correct the record and, indeed, fu rther suggested that the pros ecutor believed that Eidt initially told the truth and that defendant made the admission during the interview. 5 Here, the prosecutor’s failure to correct the testimony and instead r ely on that testimony in questioning is especially problematic because it “reinforce[d] the deception of the use of false testimony and thereby cont ribute[d] to the deprivation of due process.” Smith , 498 Mich at 476 (quotation mark s and citation omitted). We further find that the attorneys’ closing arguments did not c orrect or alleviate the harm done by Eidt’s testimony. Defense counsel attempted to hi ghlight to the jury that defendant made no such admission. However, the prosecutor agai n objected, arguing that those facts were “not in eviden ce.” The trial court sustained the objection, further underscoring the prosecutor’s atte mpt to obscure the truth abou t the claimed confession. And, finally, the prosecutor dur ing rebuttal argued to the jury that he was not trying to hide anything by keeping the actual video from them. This argument at worst misled the jury

5 It is clear that the prosecutor has a duty to apprise the cour t when he or she knows the witness is giving false testimony. See Smith , 498 Mich at 477 (“Regardless of the lack of intent to lie on the part of the witness, Giglio [ v United States , 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972)] and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially mis leading.”) (quotation marks and citation omitted; empha sis added). But, contrary to the prosecutor’s contention on appeal, the prosecutor also has such a duty when it should b e obvious that the witness is giving false testimony. “ ‘[W ]hen it should be obvious to t he Government that the witness’ answer, although made in good faith, is untrue, the Go vernment’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.’ ” Smith , 498 Mich at 477, quoting United States v Harris , 498 F2d 1164, 1169 (CA 3, 1974). This is not a case of “inconsistencies” among witnesses, as the prosecutor now sugges ts. Rather, it should have been obvious to the trial pros ecutor that Eidt’s testimony was false at least by the time defense counsel requested a rece ss, sought to correct the recor d (over the prosecutor’s objections), and asked if the taped interview should be played for the jury.10 to believe that defendant admitted his guilt or at best muddied the record so that the jury would have to assess on its own whether Eidt was telling the tr uth regarding the admission. We are unable to conclude that th e prosecutor adhered to his du ty to correct the record; instead, he left intact the false statements that Eidt made. A ccordingly, we hold that Eidt’s testimony was false; that the pros ecutor’s actions did not corr ect the false testimony; and that as a result, the prosecuto r’s conduct failed to comport wi th due process. Smith , 498 Mich at 482. We must determine whether the pr osecutor’s use of the false tes timony merits relief. A defendant is entitled to a new trial when “there is a reasona ble probability that the prosecution’s exploitation of the substantially misleading test imony affected the verdict.”
Id . at 470, citing Napue , 360 US at 271-272. As with many sexual-assault cases, the tr ial presented a credibility contest be tween defendant and the victi m. There was no DNA evidence, no physical injury to the victim, and no eyewitness t estimony that supported the prosecutor’s assertion that defe ndant sexually assaulted the vi ctim. Rather, the prosecutor’s case rested largely o n the victim’s testimony. Th roughout the trial, defense counsel fleshed out inconsistenc ies in the victim’s allegations , including (1) whether the assault occurred on the bed or on the floor, (2) whether the vi ctim cleaned herself up before or after the assault, (3) whether the victim kept her underwear on or took them off, and (4) whether the victim was quiet and did not fight back during the assault or whether she screamed and attempted to fores tall defendant’s advances. Addi tionally, defense counsel argued that the victim had a pro clivity for stealing and lying, highlighting the fact that she stole a candy bar the day of the assault.11 Conversely, the prosecutor effectively attacked defendant’s cre dibility by admitting portions of a jail-call video wherein defendant made comments t o his fiancée that he “fucked up,” that he could not s ay anything or else he would ge t “locked up,” and that “she came on to me and I fell right into the trap.” Additionally, t he officers testified that defendant at one point in the in terview said, “It never got tha t far,” rather than simply and repeatedly denying the allegations. The prosecutor also emphas ized throughout the trial that defendant’s bedding was in the washer when the police sear ched his home, indicating that defendant may have been try ing to cover up the evidence. And finally, the prosecutor introduced defendant’s prior conviction of assault with a dange rous weapon in order to rebut defendant’s claim that he h ad not been convicted of prior assaultive crimes. Yet, both sides had viable defenses of each aspect of their que stioning. The prosecutor argued that although de fense counsel highlighted inc onsistencies in aspects of the victim’s allegations, the vict im’s main assertion—that defe ndant sexually assaulted her—never wavered. Moreover, the prosecutor pointed to consist encies regarding the victim’s allegations, such as th at she gave the dollar she rece ived from defendant to her brother and that officers found the belt with which defendant a llegedly threatened her on defendant’s dresser. On the other hand, defendant and his fian cée testified that during their jail call they were not referring to the allegations against de fendant but about his recent affair with another woman. His f iancée also explained that she washed the bedding because one of the children urinated on it. As for defendant’s prior c onviction, he clarified that he had not been convicted of a ny other crime involving sexual assault, not assault in general. These illustrations reinforce tha t the trial was essentially a credibility contest in which both sides either bolstered or attacked the trustworthine ss of defendant and the12 victim. When credibility is a do minant consideration in ascert aining guilt or innocence, other independent evidence apar t from the testimony of the defe ndant and the victim is particularly vital to the fact-finding process. And false test imony simply undermines the jury’s ability to discern the truth in these circumstances. Th is is not to say that false testimony always gives rise to a violation of due process merit ing a new trial. In some cases, a new trial will not be war ranted given the sheer streng th of the truthful evidence relative to the false testimony. “[N]ot every contradiction is material and the prosecutor need not correct every instance of mistaken or inaccurate testi mony . . . .” Smith , 498 Mich at 476 (quotation marks and citation omitted). However, “confe ssions and incriminating statements constitute perhaps the most compelling and important evidence available to fact-finders in the justice sy stem’s search for truth.” Tanner , 496 Mich at 254. And when an alleged confession is introduc ed into a trial, even if the r eliability of the confession is in question, there is a greater likelihood that this testimony, wh en false, will destructively affect the judgment of the jury. As we explained in Smith , a new trial is warranted when there is a reasonable probability that the prosecutor’s exploit ation of the false testimony affected the verdict. Smith , 498 Mich at 470. Once again, the prosecutor here not only failed to correct Eidt’s testimony, which essentially claimed t hat defendant confessed to the crime, but the prosecutor undertook affirmative actions to cloud defense counsel’s efforts to correct the record. A prosecutor “may strike hard b lows, [but] he is not at liberty to strike foul ones,” and “[i]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use eve ry legitimate means to bring about a just one.” Berger v United States , 295 US 78, 88; 55 S Ct 629; 79 L Ed 1314 (1935). We recognize that the prosecutor may not have relied h eavily on this false13 testimony throughout the trial, but his actions nonetheless lef t it to the jury to decide if defendant made self-incriminator y statements during the intervi ew. Leaving this kind of false testimony for the jury to a ssess on its own is highly pre judicial in the present circumstances, and we conclude that there is a reasonable likel ihood that it affected the jury’s verdict, one ultimately r esting on the credibility of th e victim and defendant. We therefore reverse the judgment of the Court of Appeals, vacate defendant’s conviction, and remand for a new trial. 6

Bridget M. McCormack Stephen J. Markman Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

6 Given our holding, we do not address defendant’s remaining cla ims, including that the CARE House interviewer’s testimony and the prosecutor’s comment s violated the legal principles set forth in People v Peterson , 450 Mich 349; 537 NW2d 857 (1995). See also People v Thorpe , 504 Mich 230; 934 NW2d 693 (2019). However, we urge the pros ecutor on retrial to ensure that any tes timony, and any arguments rely ing on that testimony, fully comports with the standards set forth in Peterson and Thorpe

.