If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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UNPUBLISHED

July 1, 2021

v No. 352369

Oakland Circuit Court

VERNEST JAMES GRIFFIN, LC No. 2018-268372-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 352370

Oakland Circuit Court

VERNEST JAMES GRIFFIN, LC No. 2018-267582-FC

Defendant-Appellant.

Before: REDFORD, P.J., and BORRELLO and TUKEL, JJ.

PER CURIAM.

A jury convicted defendant of eight total charges, arising from two cases that were 

consolidated for trial. In Docket No. 352369, the jury convicted defendant of first-degree 

premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of 

a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life 

imprisonment without parole for the murder conviction, and a consecutive two-year term of 

imprisonment for the felony-firearm conviction. In Docket No. 352370, the jury convicted 

defendant of one count of felonious assault, MCL 750.82, two counts of assault with intent to 

commit murder, MCL 750.83, and three counts of felony-firearm. The trial court sentenced 

defendant to concurrent prison terms of 23 to 60 years for each assault with intent to commit 

murder conviction and 23 to 48 months for the felonious assault conviction, to be served 

consecutively to three concurrent two-year terms of imprisonment for the felony-firearm 

convictions. Defendant appeals as of right in both cases. We affirm. 
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I. UNDERLYING FACTS

Defendant’s convictions arise from two separate criminal episodes that occurred on the 

morning of February 1, 2018, the first in Pontiac and the second in Waterford Township. Before 

engaging in the criminal acts in Pontiac and Waterford Township, defendant, a truck driver, first 

went to his former employer’s office, a trucking company in Wayne County, where he fatally shot 

the company’s dispatcher and then commandeered a company truck,1 which he used during the 

criminal episodes in Pontiac and Waterford Township.2 Relevant to this case, defendant’s criminal 

activity started in Pontiac when he arrived at Aluminum Blanking Company’s shipping and 

receiving area and fatally shot Edward Perez, whose main responsibility was to check in truck 

drivers. Defendant then went to another company, Assured Carriers in Waterford Township, 

where he previously had been employed as a truck driver, and requested the whereabouts of his 

former manager, who was not there. By this time, the police had been informed that the Aluminum 

Blanking shooter was driving a white semitruck and had entered a Waterford Township business. 

Shortly thereafter, a police chase ensued, during which defendant fired a semiautomatic weapon 

at two officers and pointed it at a third officer before being apprehended. 

II. THE PROSECUTOR’S OPENING STATEMENT

Defendant first argues that the prosecutor engaged in misconduct during opening

statement. We disagree. 

A. PRESERVATION AND STANDARD OF REVIEW

“In order to preserve an issue of prosecutorial misconduct, a defendant must 

contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App 

465, 475; 802 NW2d 627 (2010). Defendant did not object during opening statement to any of the 

conduct that he now challenges on appeal. As such, his claims of prosecutorial misconduct are 

unpreserved. Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich 108, 116; 

869 NW2d 829 (2015).

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. The third requirement generally requires a 

showing of prejudice, i.e., that the error affected the outcome of the lower court 

proceedings. It is the defendant rather than the Government who bears the burden 

of persuasion with respect to prejudice. Finally, once a defendant satisfies these 

three requirements, an appellate court must exercise its discretion in deciding 

 

1 Defendant was separately charged for the offenses in Wayne County and convicted of first-degree 

premeditated murder, carjacking, MCL 750.529a, and other offenses. This Court affirmed those 

convictions in People v Griffin, unpublished per curiam opinion of the Court of Appeals, issued 

October 22, 2020 (Docket Nos. 348864 and 348871).

2 Defendant’s convictions in Docket No. 352369 arise from his conduct in Pontiac; his actions in 

Waterford Township led to his convictions in Docket No. 352370. 
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whether to reverse. Reversal is warranted only when the plain, forfeited error 

resulted in the conviction of an actually innocent defendant or when an error 

seriously affected the fairness, integrity or public reputation of judicial proceedings 

independent of the defendant’s innocence. [People v Carines, 460 Mich 750, 763-

764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]

“A ‘clear or obvious’ error under the second prong is one that is not ‘subject to reasonable 

dispute.’ ” People v Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018). 

B. ANALYSIS

Defendant’s first complaint is that—during his opening statement—the prosecutor 

improperly displayed exhibits that had not yet been admitted. The challenged exhibits included 

an aerial map of Aluminum Blanking, still photographs extracted from surveillance and police 

cameras, photographs of shell casings, the recovered firearm, and the window of the shipping 

office at Aluminum Blanking. 

When evaluating allegations of prosecutorial misconduct, the test is whether a defendant 

was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 

(2007). “The cumulative effect of several errors can constitute sufficient prejudice to warrant 

reversal even when any one of the errors alone would not merit reversal, but the cumulative effect 

of the errors must undermine the confidence in the reliability of the verdict before a new trial is 

granted.” Id. at 106. “Issues of prosecutorial misconduct are decided case by case, and this Court 

must examine the entire record and evaluate a prosecutor’s remarks in context.” Id. at 64.

“Opening statement is the appropriate time to state the facts that will be proved at trial.” 

People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010). “A prosecutor may not offer 

his or her personal belief about the defendant’s guilt, but may summarize what he or she thinks the 

evidence will show.” People v Lane, 308 Mich App 38, 63; 862 NW2d 446 (2014). Considering 

the content of the exhibits, the prosecutor reasonably anticipated that this evidence would be 

admitted. Indeed, each of the exhibits defendant challenges was later admitted as evidence during 

trial. When referring to the exhibits during opening statement, the prosecutor simply “state[d] the 

facts that [would] be proved at trial.” Ericksen, 288 Mich App at 200. To the extent that the 

prosecutor’s display of the aerial map, photos, and sketch could be considered premature, because

the exhibits were later admitted into evidence, any error did not affect defendant’s substantial 

rights. Defendant has not identified any visual aid used during the prosecutor’s opening statement 

that was outside the scope of the evidence later presented at trial. Further, defendant does not 

otherwise challenge the admissibility of the later-admitted exhibits. Defendant also cites no 

precedential or persuasive authority to support his assertion that a prosecutor is prohibited from 

using visual aids during opening statement. Accordingly, the prosecutor’s use of the challenged 

visual aids during opening statement was not erroneous. 

Defendant also complains that the prosecutor committed misconduct by referring to the 

firearm recovered from defendant as an “AK-47,” when evidence introduced later at trial 

established that the weapon was not an AK-47. We disagree that the prosecutor’s terminology 

was improper. An expert in firearm and toolmark identification explained that the gun recovered 

from defendant was an Egyptian-made Maadi MISR-90 semiautomatic rifle. The witness agreed 
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that the weapon “[t]echnically . . . is not an AK-47,” but stated that a “general term for a gun that 

looks like this is considered . . . an AK-47-looking, you know, similar type firearm.” Another 

expert in firearm and toolmark identification explained that the recovered Maadi semiautomatic 

rifle is “a variant of an AK-47.” Given this testimony, defendant has not demonstrated that the 

prosecutor’s reference to the firearm as an “AK-47” in opening statement was plain error. 

Indeed, the record discloses that defendant, who represented himself at trial, occasionally

referred to the firearm as an AK-47 when questioning witnesses at trial. Further, defendant fails

to explain how the prosecutor’s description of the semiautomatic firearm as an AK-47, instead of 

a Maadi semiautomatic rifle, had any impact on the trial or his convictions. Defendant’s defense 

was that he was misidentified as the perpetrator, and that there was no evidence that the acts were 

premeditated. No part of his defense had anything to do with the firearm’s technical name. In 

other words, whether the firearm was technically an AK-47 semiautomatic rifle or a Maadi 

semiautomatic rifle had no bearing on defendant’s identity as the person who fatally shot Perez,

shot at two officers with the firearm, and pointed the rifle at a third officer, or the issue of 

defendant’s intent. Accordingly, defendant has not shown that the prosecutor’s description of the 

semiautomatic rifle as an AK-47 during opening statement was a plain error that affected his 

substantial rights.

Finally, in its final instructions, the trial court instructed the jury that the lawyers’

statements were not evidence, the jury was to decide the case only on the basis of the properly 

admitted evidence, and the jury was to follow the court’s instructions. Jurors are presumed to have 

followed their instructions, People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011), and 

defendant has not provided any basis for concluding that the jurors failed to do so in this case. 

Thus, the trial court’s instructions sufficiently dispelled any possible prejudice arising from the 

terminology used by the prosecutor, and thereby protected defendant’s substantial rights. People 

v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). 

III. ADMISSION OF EVIDENCE

Defendant also argues that the trial court abused its discretion by permitting the prosecutor 

to present evidence of defendant’s criminal activity associated with his offenses in Wayne County 

earlier in the day on February 1, 2018, for which he was not on trial. Defendant argues that this 

evidence was inadmissible under MRE 404(b)(1). We disagree. 

A. PRESERVATION AND STANDARD OF REVIEW

To preserve an issue regarding a trial court’s evidentiary ruling, a defendant must raise that 

particular issue in the trial court and raise the same basis for objection on appeal. People v Gaines, 

306 Mich App 289, 306; 856 NW2d 222 (2014). Defendant objected to the admission of this 

evidence at trial on the same grounds that he now raises on appeal. Thus, the issue is preserved.

This Court “review[s] for an abuse of discretion a trial court’s decision to admit or exclude 

evidence,” and reviews any preliminary legal questions of law de novo. People v Mann, 288 Mich 

App 114, 117; 792 NW2d 53 (2010). Preliminary questions of law require a court to determine 

“whether a rule of evidence or statute precludes admissibility of the evidence.” People v Lukity, 

460 Mich 484, 488; 596 NW2d 607 (1999). “An abuse of discretion occurs when the court chooses 
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an outcome that falls outside the range of reasonable and principled outcomes.” People v Mahone, 

294 Mich App 208, 212; 816 NW2d 436 (2011). “A trial court also necessarily abuses its 

discretion when it makes an error of law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 

826 (2015). “[A] trial court’s decision on a close evidentiary question ordinarily cannot be an 

abuse of discretion.” People v Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011) 

(quotation marks and citation omitted). 

B. ANALYSIS

Evidence is relevant if it has “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.” People v Martzke, 251 Mich App 282, 293; 651 NW2d 490 (2002) (citation 

and quotation marks omitted). “Under this broad definition, evidence is admissible if it is helpful 

in throwing light on any material point.” People v Aldrich, 246 Mich App 101, 114; 631 NW2d 

67 (2001). 

Under MRE 403, however, relevant evidence “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.” “MRE 403 does not prohibit prejudicial evidence; rather, it prohibits evidence that is 

unfairly prejudicial. In essence, evidence is unfairly prejudicial when there exists a danger that 

marginally probative evidence might be given undue weight by the jury.” People v Dixon-Bey, 

321 Mich App 490, 513; 909 NW2d 458 (2017). Stated differently, unfair prejudice exists if there 

is “a danger that marginally probative evidence will be given undue or pre-emptive weight by the 

jury” or “it would be inequitable to allow the proponent of the evidence to use it.” People v Mills, 

450 Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995). Unfair prejudice “refers to 

the tendency of the proposed evidence to adversely affect the objecting party’s position by 

injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, 

anger, or shock.” Cameron, 291 Mich App at 611 (quotation marks and citation omitted). 

“In reviewing the trial court’s decision for an abuse of discretion, the appellate court 

must view the evidence in the light most favorable to its proponent, giving ‘the 

evidence its maximum reasonable probative force and its minimum reasonable 

prejudicial value.’ ” “[T]he draftsmen intended that the trial judge be given very 

substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair 

prejudice’ on the other, and that the trial judge should not be reversed simply 

because an appellate court believes it would have decided the matter otherwise.” 

People v Head, 323 Mich App 526, 540-541; 917 NW2d 752 (citations and footnote 

omitted; alteration in original).

The admission of “other acts” evidence is governed by MRE 404(b).3 “At its essence, 

MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence as long as it is not being 

 

3 MRE 404(b) provides, in relevant part:
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admitted solely to demonstrate criminal propensity.” Martzke, 251 Mich App at 289; see also 

People v Mardlin, 487 Mich 609, 615; 790 NW2d 607 (2010) (“the rule is not exclusionary, but is 

inclusionary”). Although MRE 404(b)(1) prohibits “evidence of other crimes, wrongs, or acts” to 

prove a defendant’s character or propensity to commit the charged crime, it permits such evidence 

for other purposes, “such as proof of motive, opportunity, intent, preparation, scheme, plan, or 

system in doing an act, knowledge, identity, or absence of mistake or accident when the same is 

material.” People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). Other-acts evidence is 

admissible under MRE 404(b)(1) if it is (1) offered for a proper purpose, i.e., one other than to 

prove the defendant’s character or propensity to commit the crime, (2) relevant to an issue or fact 

of consequence at trial, MRE 401, and (3) sufficiently probative to outweigh the danger of unfair 

prejudice, under MRE 403. People v Starr, 457 Mich 490, 496-497; 577 NW2d 673 (1998); 

People v VanderVliet, 444 Mich 52, 55, 63-64, 74-75; 508 NW2d 114 (1993), amended 445 Mich 

1205 (1994). Further, although MRE 404(b)(1) provides examples of permissible uses of otheracts evidence, the list is not exhaustive. People v Watson, 245 Mich App 572, 576-577; 629 NW2d 

411 (2001). The rule permits the admission of evidence of a defendant’s other acts for any relevant 

purpose that “does not risk impermissible inferences of character to conduct.” Id. at 576 (citation 

omitted). 

The other-acts evidence in this case established that defendant shot and killed his former 

employer’s company dispatcher earlier the same morning as the events in this case, using the same 

semiautomatic rifle used in this case, and that defendant commandeered a white semitruck from 

that former employer. Witnesses in this case saw the gunman driving a vehicle with the same 

description. As such, the other-acts evidence was highly probative of defendant’s identity as the 

perpetrator of the charged offenses. “[I]dentity is an element of every offense.” See People v Yost, 

278 Mich App 341, 356; 749 NW2d 753 (2008). Additionally, the fact that defendant largely 

based his defense on discrediting the prosecution’s evidence of his identity as the perpetrator of 

the charged offenses enhanced the probative value of the other-acts evidence on this issue. 

The challenged evidence was also relevant to show defendant’s intent, plan, and motive to 

kill Perez. Indeed, the other-acts evidence was probative of defendant’s premediated and 

deliberate plan to kill individuals he knew in a work-related context and had grievances against. 

The day of the offenses at issue, defendant fatally shot the company dispatcher at the trucking 

company in Taylor where he formerly worked. He then commandeered a truck from that location, 

which he used to drive directly to Pontiac where he fatally shot Perez—who checked in truck 

drivers at Aluminum Blanking. Defendant then drove to a third location, Assured Carriers, at 

which while carrying a gun he searched for his former manager. This evidence was relevant to the 

prosecution’s theory that defendant formed a plan to seek revenge on February 1 against former 

 

(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or 

absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case.
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employers or coworkers with whom he had disagreements by shooting them, and thus acted with 

premeditation and deliberation when he went to the trucking company with a weapon that day and 

shot Perez. First-degree premeditated murder requires proof that the defendant intentionally killed 

the victim and that the act of killing was premeditated and deliberate. People v Ortiz, 249 Mich 

App 297, 301; 642 NW2d 417 (2001). Additionally, “the defendant’s actions before the killing”

are factors that may be considered to establish premeditation. People v Walker, 330 Mich App 

378, 384; 948 NW2d 122 (2019). The evidence of defendant’s similar conduct immediately before 

shooting Perez was probative of his intent at the time he shot Perez, and thus was relevant for a 

proper, noncharacter purpose in this case. 

We likewise reject defendant’s argument that the evidence should have been excluded 

under MRE 403 because it was unfairly prejudicial. As discussed earlier, under MRE 403, relevant 

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice. MRE 403; Cameron, 291 Mich App at 610. Defendant’s defense—that he was 

misidentified and the evidence was insufficient to prove premeditation and intent—enhanced the 

challenged evidence’s probative value, which shed light on the likelihood that defendant went to 

Aluminum Blanking on February 1 with a premeditated plan to shoot and kill Perez. Moreover, 

the trial court gave a cautionary instruction to the jury, both before the introduction of the otheracts evidence and again in its final instructions, explaining the limited, permissible use of the 

evidence, thereby limiting any potential for unfair prejudice. As previously noted, jurors are 

presumed to have followed their instructions. Breidenbach, 489 Mich at 13. Thus, the trial court 

did not abuse its discretion by determining that the probative value of the evidence was not 

substantially outweighed by the danger of unfair prejudice.

IV. CONCLUSION

For the reasons stated in this opinion, we affirm defendant’s convictions.

/s/ James Robert Redford 

/s/ Stephen L. Borrello 

/s/ Jonathan Tukel