            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       March 12, 2020
                Plaintiff-Appellee,

 v                                                                     No. 345742
                                                                       Bay Circuit Court
 JAMES EDWARD JONES,                                                   LC No. 18-010043-FH

                Defendant-Appellant.


Before: CAMERON, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

       Defendant, James Edward Jones, appeals his jury-trial conviction of third-degree criminal
sexual conduct (CSC-III), MCL 750.520d(1)(b) (force or coercion used to accomplish sexual
penetration). The trial court sentenced Jones as a fourth-offense habitual offender, MCL
769.12(1)(a), to serve a prison term of 300 to 450 months. We affirm.

                                        I. BACKGROUND

         On April 2, 2016, the victim visited her neighbor’s apartment for a small gathering, where
she met Jones for the first time. After the victim left the neighbor’s apartment and as she
approached the door to her own apartment, she realized that Jones was behind her. The victim
testified that Jones stated that “[h]e wanted to see what [her] apartment looked like.” The victim
allowed Jones to enter her apartment, but testified that she was afraid of him at that point. When
the prosecutor asked what happened after Jones closed the door, the victim responded, “Relax.
Relax. Relax. It won’t hurt. Relax. It won’t hurt. Relax. It won’t hurt. Relax. It won’t hurt.”
She testified that Jones took her clothes off, even though she had told him not to. The victim also
told Jones to leave, but he did not and, instead, told her to relax and to get on her bed. The victim
got on the bed. She testified that she believed Jones was going to hurt her.

        The victim testified, “I told him—I told him—I told him no. I told him no. I tried to get
him off of me with . . . my knees. I told him no, and he—he told me—he told me just relax. Just
relax. Just relax.” The victim further testified that Jones had inserted his penis inside her vagina
and that Jones ignored her when she told him “to take it out.” Jones held the victim down by her
shoulders as he penetrated her. The victim testified that she was in pain. Once the sexual assault


                                                -1-
ended, Jones left the victim’s apartment. Law enforcement was contacted, and a sexual assault
examination was performed. DNA testing of a vulvar swab that was obtained during the
examination revealed “very strong support” that Jones was a contributor to the mixture of DNA
found on the swab.

        Jones was charged with CSC-III. The felony information included a fourth-offense
habitual offender charge, notifying Jones that he faced a mandatory minimum sentence of 25 years’
imprisonment if convicted of CSC-III. The mandatory minimum sentence was also discussed on
the record on June 25, 2018, while the parties and the trial court discussed a plea offer. In exchange
for Jones pleading guilty or nolo contendere to CSC-III as a second-habitual offender, the
prosecutor offered to dismiss the fourth-offense habitual offender charge and an unrelated pending
charge. It was noted on the record that, if Jones accepted the plea offer, he would avoid the 25-
year mandatory minimum sentence, and his maximum sentence would be 270 months’
imprisonment. Jones rejected the offer on the record. On the morning of trial, the trial court again
informed Jones of the 25-year mandatory minimum and asked Jones to confirm that he had rejected
the plea offer. Jones responded that he “still” rejected the offer. Trial commenced, and Jones was
convicted as charged. Jones was sentenced to 300 to 450 months’ imprisonment. This appeal
followed.

                                          II. ANALYSIS

                                     A. 25-YEAR SENTENCE

       Jones argues that the mandatory 25-year prison term under MCL 769.12(1)(a) is
unconstitutionally cruel or unusual as applied to him. We disagree.

       We review issues of constitutional law de novo. People v Swint, 225 Mich App 353, 364;
572 NW2d 666 (1997). “Statutes are presumed to be constitutional, and the courts have a duty to
construe a statute as constitutional unless its unconstitutionality is clearly apparent.” People v
Dipiazza, 286 Mich App 137, 144; 778 NW2d 264 (2009) (citation omitted).

         The Eighth Amendment of the United States Constitution prohibits the infliction of “cruel
and unusual punishments.” US Const, Am VIII. The Michigan Constitution prohibits the
infliction of “cruel or unusual punishment.” Const 1963, art 1, § 16. “If a punishment passes
muster under the state constitution, then it necessarily passes muster under the federal
constitution.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011) (quotations
omitted).

         To determine whether a punishment is cruel or unusual, this Court employs a three-part
test: (1) it examines “the severity of the sentence imposed and the gravity of the offense,” (2) it
compares “the penalty to penalties for other crimes under Michigan law,” and (3) it compares
“Michigan’s penalty and penalties imposed for the same offense in other states.” Id. However,
the “dominant test” is the proportionality question, which is “whether the punishment is so
excessive that it is completely unsuitable to the crime.” People v Coles, 417 Mich 523, 530; 339
NW2d 440 (1983), overruled on other grounds by People v Milbourn, 435 Mich 630, 644; 461
NW2d 1 (1990). “[A] proportionate sentence is not cruel or unusual,” People v Bowling, 299 Mich
App 552, 558; 830 NW2d 800 (2013), and “[l]egislatively mandated sentences are presumptively

                                                 -2-
proportional and presumptively valid,” People v Brown, 294 Mich App 377, 390; 811 NW2d 531
(2011). “In order to overcome the presumption that the sentence is proportionate, a defendant
must present unusual circumstances that would render the presumptively proportionate sentence
disproportionate.” Bowling, 299 Mich App at 558 (citation omitted).

         In this case, Jones’s 25-year minimum sentence was legislatively mandated.1 To support
that this presumptively proportionate sentence is disproportionate, Jones argues that the 25-year
minimum sentence is the functional equivalent of life imprisonment without the possibility of
parole. Jones’s argument is without factual merit, however. Jones, who is currently 59 years old,
will be eligible for parole when he is 82 years old. However, Jones notes that he is expected to
live until the age of approximately 90.2 years. Although Jones has not provided an empirical basis
for his assertion, even by his own calculations the 25-year mandatory minimum does not exceed
his life expectancy. Furthermore, this Court has concluded that while a minimum sentence of 25
years is substantial, it is not comparable to sentences of death and life without parole. See People
v Payne, 304 Mich App 667, 675; 850 NW2d 601 (2014). Rather, a 25-year sentence “allow[s]
for review of an individual defendant’s progress toward rehabilitation and provides a meaningful
opportunity for release on parole.” Id. Therefore, Jones has not presented any unusual
circumstances that would render the punishment outlined in MCL 769.12(1)(a) disproportionate.

        Furthermore, Jones has failed to show that the severity of the sentence imposed was
disproportionate to the gravity of the offense. The evidence at trial showed that Jones removed
the victim’s clothing against her wishes, refused to leave her apartment when asked to do so, held
her down by the shoulders, and engaged in penile-vaginal penetration with her despite her
objections. At the time Jones committed the offense in this case, he had seven prior felonies and
ten prior misdemeanors, which supports a pattern of disregard for the law. Jones has also failed to
demonstrate that his sentence is cruel or unusual in comparison to the penalties imposed for other
crimes in this state or for the same crimes in other states. Although Jones does argue that the
“three strikes” law in California and other states has been unsuccessful, this is a policy argument
for the Legislature to address—not a legal issue for this Court. See King v R G Indus, Inc, 182
Mich App 343, 345; 451 NW2d 874 (1990). Furthermore, in a plurality decision, the United States
Supreme Court upheld the constitutionality of California’s “three strikes law” against a cruel and
unusual punishment challenge. Ewing v California, 538 US 11, 30-31; 123 S Ct 1179; 155 L Ed
2d 108 (2003).

        Thus, Jones has failed to demonstrate that application of MCL 769.12(1)(a) in this case
constituted cruel or unusual punishment as applied to him. Because Jones’s punishment “passes




1
  A 25-year mandatory sentence under MCL 769.12(1)(a) will be imposed if a defendant’s
“subsequent felony is a serious crime . . . and 1 or more of the prior felony convictions are listed
prior felonies . . . .” MCL 769.12(1)(a). Jones was convicted of CSC-III, which is a serious crime
as defined by MCL 769.12(6)(c). Jones had at least three listed prior felony convictions as defined
by MCL 769.12(6)(a), including carrying a concealed weapon, MCL 750.227; attempted armed
robbery, MCL 750.529; and escape from jail, MCL 750.197c. Therefore, Jones was subject to a
mandatory 25-year minimum sentence.

                                                -3-
muster under the state constitution, then it necessarily passes muster under the federal
constitution.” See Benton, 294 Mich App at 204 (quotation omitted).

                                     B. STANDARD 4 BRIEF

       In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, Jones raises additional arguments on appeal. We conclude that none of these arguments
have merit.

                                 1. PROSECUTORIAL ERROR

        Jones argues that the prosecutor committed error by referring to the victim as “mentally
slow” without providing evidence “to prove the [victim’s] mental disability.” Jones also argues
that the prosecutor improperly “implie[d] that [the victim] should be allowed more chances to give
truthful testimony than are usually allowed before a witness is deemed as not credible.” We
disagree that the prosecutor’s comments amounted to prosecutorial error.

        “[T]o preserve an issue of prosecutorial [error], a defendant must contemporaneously
object and request a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). Because that did not occur here, we apply the plain-error rule, which requires that
“1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An
error has affected a defendant’s substantial rights when there is “a showing of prejudice, i.e., that
the error affected the outcome of the lower court proceedings.” Id. Moreover, “once a defendant
satisfies these three requirements, . . . [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, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. at 763-764 (quotation marks and citation omitted). A defendant “bears the burden
of persuasion with respect to prejudice.” Id. at 763 (citation omitted). “We will not find error
requiring reversal if a curative instruction could have alleviated the effect of the prosecutor’s
misconduct.” People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014).

        “A prosecutor has committed [error] if the prosecutor abandoned his or her responsibility
to seek justice and, in doing so, denied the defendant a fair and impartial trial.” Id. “A defendant’s
opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than
the defendant’s guilt or innocence.” People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546
(2007). “Issues of prosecutorial [error] are decided case by case, and this Court must examine the
entire record and evaluate a prosecutor’s remarks in context.” Id. at 64. “The propriety of a
prosecutor’s remarks depends on all the facts of the case.” People v Rodriguez, 251 Mich App 10,
30; 650 NW2d 96 (2002).

       During voir dire, the prosecutor stated, “You’re going to figure out fairly quickly, in her
testimony, that [the victim] is mentally slow.” The prosecutor made a similar comment in his
opening statement when he stated, “You’re going to realize early on in her testimony that [the
victim] is a little mentally slower than the rest of us, but she can communicate if you give her
enough time.” During closing argument the prosecutor stated, “As I told you in my opening


                                                 -4-
statement, as I’m sure you noticed, pretty quickly in her testimony, [the victim] is mentally slow.
You all agreed in voir dire that you would not hold that against her when judging her credibility.”

        After reviewing the entire record and evaluating the prosecutor’s statements in context, we
conclude that they were not improper. During the victim’s testimony, it was clear that she had
some degree of disability, as she often repeated the word “relax” or the phrase “it won’t hurt” in
her answers when describing the sexual assault. Additionally, at times, the victim would
spontaneously repeat “relax,” “I’m sorry,” or “[m]y fault.” Other times during the victim’s
testimony, it was difficult to understand her answer and it took her more time than one would
expect to provide an intelligible response. In light of the victim’s manner of testifying, it appears
that the prosecutor’s references to the victim being “mentally slow” provided a greater context for
her unusual manner of testifying. The prosecutor’s reminder during closing argument that the jury
promised during voir dire not to hold the victim’s disability against her was made in the context
of asking the jury not to discount the victim’s testimony because of her disability. Consequently,
because we conclude that the prosecutor’s remarks were not improper, Jones has failed to establish
plain error. Moreover, with respect to the prejudice prong, the jurors were able to observe the
victim during her testimony and form their own opinions about the victim’s credibility. The jury
was instructed that the prosecutor’s arguments were not evidence, that they were the only judges
of the facts, that they must decide which witnesses they believed, and that they must not let
sympathy or prejudice influence their decision. Jurors are presumed to follow their instructions.
See People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330 (2009). Thus, Jones has failed
to establish plain error affecting his substantial rights.

                                  2. PERJURED TESTIMONY

       Jones argues that he was convicted on the basis of the victim’s false or perjured testimony.
Because this issue was not raised below, we review for plain error affecting substantial rights. See
Carines, 460 Mich at 763.

        Jones appears to suggest that the differences between the victim’s testimony at the
preliminary examination and her testimony at trial demonstrates that the victim’s testimony was
false or perjured, and that the trial court, prosecutor, and defense counsel allowed this testimony
without correction. Although it is well settled that a conviction obtained through perjured
testimony must be set aside, People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009), a
defendant must first prove that the testimony was actually false. In this case, Jones has not
presented any factual basis showing that the victim’s testimony was actually false. Rather, Jones
only points to inconsistencies in the victim’s testimony. This is unavailing, however, because this
Court has held that the existence of an inconsistent prior statement does not automatically establish
that the testimony was false. People v Bass, 317 Mich App 241, 275; 893 NW2d 140 (2016).
Furthermore, the alleged inconsistencies in the victim’s testimony were presented to the jury
through the questioning of defense counsel on cross-examination. Defense counsel also
highlighted the victim’s inconsistent statements during closing argument to support that the victim
was not credible. Therefore, because Jones has failed to establish that the testimony presented was
actually false, and because the jury was aware of the inconsistencies in the victim’s testimony,
Jones has failed to establish plain error affecting his substantial rights.



                                                -5-
                                3. INEFFECTIVE ASSISTANCE

       Jones argues that his Fifth,2 Sixth, and Fourteenth Amendment rights were violated because
of defense counsel’s ineffective assistance at trial. We disagree.

        Jones failed to raise an ineffective assistance of counsel claim in the trial court in
connection with a motion for a new trial or a Ginther3 hearing. Therefore, our review of this issue
is limited to mistakes apparent on the record. People v Heft, 299 Mich App 69, 80; 829 NW2d
266 (2012). “To demonstrate ineffective assistance of counsel, a defendant must show that his or
her attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013). “To demonstrate prejudice, a defendant must show
the probability that, but for counsel’s errors, the result of the proceedings would have been
different.” Id.

         Jones first argues that defense counsel was ineffective by failing to object to the
prosecutor’s references to the victim being “mentally slow.” As already discussed, however, the
prosecutor’s comments were not improper. Therefore, Jones’s claim of ineffective assistance of
counsel in relation to defense counsel’s failure to object to the prosecutor’s statements must fail.
See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (holding that trial counsel
is not ineffective for failing to make a futile objection).

        Next, Jones argues that defense counsel was ineffective by failing to address “inconsistent
and contradictory testimony with evidence.” “Decisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy, and this Court
will not substitute its judgment for that of counsel regarding matters of trial strategy.” People v
Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). Moreover, “[a] defendant must establish a
factual basis for an ineffective assistance of counsel claim.” People v Hoang, 328 Mich App 45,
64; 935 NW2d 396 (2019). Our review of the record reveals that Jones’s argument lacks a factual
predicate. Defense counsel addressed several inconsistencies in trial testimony and impeached the
victim with her testimony at Jones’s preliminary examination. Therefore, Jones has failed to
demonstrate any errors made by defense counsel that are apparent on the record, and he has failed
to establish that defense counsel was ineffective.

        Finally, Jones argues that defense counsel was ineffective for failing to object to the
prosecutor’s leading questions during direct examination of the victim. In so arguing, however,
Jones fails to cite relevant authority and fails to explain or rationalize how the prosecutor’s
questions amounted to improper leading questions. A defendant may not simply “announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority either


2
 Although Jones references his Fifth Amendment right to counsel, Jones’s arguments on appeal
only relate to the Sixth and Fourteenth Amendment rights to effective assistance of counsel.
Consequently, we will not address whether Jones’s Fifth Amendment right to counsel was violated.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                -6-
to sustain or reject his position.” People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291
(2001) (citation omitted). Therefore, by failing to adequately brief the issue, Jones has abandoned
this claim that defense counsel was ineffective. See People v Henry, 315 Mich App 130, 149; 889
NW2d 1 (2016). However, to the extent that we have reviewed the argument, we conclude that it
lacks merit.

                             4. SUFFICIENCY OF THE EVIDENCE

        Next, Jones argues that he was convicted on the basis of insufficient evidence. However,
because Jones has presented no argument concerning this issue in the body of the brief, this claim
is abandoned. See id. Nevertheless, we have reviewed the argument and conclude that the
evidence presented was sufficient to allow the jury to conclude that all of the elements of CSC-III
had been established. See People v Eisen, 296 Mich App 326, 333; 820 NW2d 229 (2012)
(outlining the elements of CSC-III based on force or coercion).

                   5. PROBABLE CAUSE TO ISSUE ARREST WARRANT

         Jones argues that his arrest warrant was issued without probable cause. However, Jones
has failed to provide any factual support or meaningful legal analysis in support of this argument.
Jones has also failed to provide this Court with the arrest warrant affidavit. By failing to adequately
brief the issue, Jones has abandoned this claim. See Henry, 315 Mich App at 149. Furthermore,
even if this Court was to overlook Jones’s abandonment of this issue, Jones would not be entitled
to relief because “once the court obtains jurisdiction over the defendant, proof of an invalid arrest
warrant does not divest the court of jurisdiction. Regardless of the means used to bring him within
the court’s jurisdiction, both Federal and Michigan cases uphold the power of a court to try a
defendant.” People v Collins, 52 Mich App 332, 336; 217 NW2d 119 (1974).

       Affirmed.



                                                               /s/ Thomas C. Cameron
                                                               /s/ Anica Letica




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