                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 10, 2018
               Plaintiff-Appellee,

v                                                                   No. 333205
                                                                    Oakland Circuit Court
ALAN DONNELL BROADNAX,                                              LC No. 2015-256491-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

PER CURIAM.

       Defendant, Alan Broadnax, appeals as of right his jury conviction of first-degree criminal
sexual conduct (CSC-I), MCL 750.520b(1)(f) (sexual penetration accomplished by force or
coercion and causing personal injury). The trial court sentenced Broadnax as a fourth-offense
habitual offender, MCL 769.12(1)(b), to a prison term of 25 to 75 years. We affirm.

                                       I. BACKGROUND

        In January 2008, the victim went to a party with her friend, Heather, and two other men
the victim did not know. The group picked up the victim at her home in Hamtramck, and they
drove to a house about 30 minutes away. Later that evening, Heather got a ride home with
another friend, Cheryl, leaving the victim alone at the house with three men she did not know.
According to the victim, she was physically assaulted and knocked unconscious. When she
woke up, Broadnax was sexually assaulting her. The victim claimed that, after the assault, one
of the other men gave her some of her belongings and escorted her out of the house. The victim
described walking through the night in sub-freezing temperatures to her home in Hamtramck,
wearing no jacket or shoes. When she arrived home, she contacted the Hamtramck police to
report the assault. The police took her to the hospital for treatment and for the collection of
forensic evidence. Because the Hamtramck police believed the sexual assault occurred at a
house in Southfield, they turned the matter over to the Southfield police.

        After the victim’s release from the hospital, a Southfield police officer spoke with the
victim and attempted to determine the location of the house where she was assaulted. The
officer believed that the offense occurred in Detroit, so the Southfield police referred the matter
to the Detroit police. However, Detroit officers believed that the offense occurred in Southfield.
The case languished for years because of the jurisdictional question and delays in processing a
rape kit collected at the hospital. After funding for forensic testing was made available in 2013,
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the samples collected from the victim were analyzed. The results were entered in a DNA
database, which matched Broadnax’s DNA. Additional testing of Broadnax’s DNA confirmed
the match. The victim also identified Broadnax’s photograph in a photographic array.

                                         II. ANALYSIS

                            A. SUFFICIENCY OF THE EVIDENCE

        Broadnax argues that the evidence was insufficient to establish either his guilt of CSC-I
or the location of the offense in Oakland County. An appellate court’s review of the sufficiency
of the evidence to sustain a conviction turns on whether there was sufficient evidence to justify a
rational trier of fact in finding the defendant guilty beyond a reasonable doubt. People v
Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). We must review the evidence in a light
most favorable to the prosecution. Id. at 723. The credibility of witnesses and the weight
afforded their testimony are matters for the jury, and any conflicts in the evidence must be
decided in favor of the prosecution. People v Jackson, 292 Mich App 583, 587-588; 808 NW2d
541 (2011). “This Court will not interfere with the trier of fact’s role of determining the weight
of the evidence or the credibility of witnesses.” People v Williams, 268 Mich App 416, 419; 707
NW2d 624 (2005).

        Broadnax disputes that venue was proper in Oakland County. Although the location of
the offense was a disputed issue, the prosecution presented evidence establishing that the victim
was sexually assaulted at a house in Southfield, which is in Oakland County. Even if venue in
Oakland County were improper, Broadnax would not be entitled to relief. Venue is not an
essential element of a charged offense, and there is no constitutional right to be tried in a county
where a crime occurred. People v Houthoofd, 487 Mich 568, 586-588; 790 NW2d 315 (2010).
Moreover, “[n]o order, judgment, or decree shall be void or voidable solely on the ground that
there was improper venue.” MCL 600.1645.1 Accordingly, Broadnax cannot obtain relief on the
basis that the prosecution failed to prove venue in Oakland County beyond a reasonable doubt.

        The prosecution also presented sufficient evidence to support Broadnax’s conviction of
CSC-I. A conviction under MCL 750.520b(1)(f) requires proof that “the actor (1) causes
personal injury to the victim, (2) engages in sexual penetration with the victim, and (3) uses force
or coercion to accomplish the sexual penetration.” People v Nickens, 470 Mich 622, 629; 685
NW2d 657 (2004). The victim’s testimony, which was corroborated by DNA evidence, was
sufficient to establish sexual penetration by Broadnax. The victim denied consenting to the
sexual contact. She testified that she woke up and discovered that Broadnax was sexually
assaulting her by penetrating her vagina with his penis while holding her down on the floor.
When she tried to speak, Broadnax hit and choked her and told her, “Shut up bitch or I’ll kill
you.” After the assault, she had bruising on her neck, face, and right elbow in addition to a
“ring-like bruise over her neck.” Her left eye was black and blue, and her lip was swollen. This


1
  In Houthoofd, 487 Mich at 592, our Supreme Court held that “the early Michigan caselaw
requiring that a conviction be reversed and the case remanded for a new trial because of
improper venue has been abrogated by statute and is no longer applicable.”


                                                -2-
testimony was sufficient to prove that Broadnax accomplished the penetration by force and that
the victim was injured during the sexual assault. The victim identified Broadnax as her attacker,
and Broadnax’s identity was confirmed by DNA testing. Accordingly, the evidence was
sufficient to support Broadnax’s conviction of CSC-I beyond a reasonable doubt.

        To the extent that the victim’s multiple accounts since 2008 were inconsistent, the
credibility of her testimony was a matter for the jury to resolve. The credibility or plausibility of
the victim’s account of walking through the night from Southfield to Hamtramck, wearing no
shoes or jacket, was also a matter for the jury to determine. Moreover, a “jury has the right to
disregard all or part of the testimony of a witness.” People v Goodchild, 68 Mich App 226, 235;
242 NW2d 465 (1976). The jury was free to believe the victim’s account of the sexual assault
even if it did not believe her account of how she got home after the assault. Broadnax’s attacks
on the victim’s credibility do not render the evidence insufficient to support his conviction.

                                 B. JUDICIAL FACT-FINDING

          Next, Broadnax argues that he is entitled to sentencing relief under People v Lockridge,
498 Mich 358; 870 NW2d 502 (2015), because the trial court engaged in judicial fact-finding to
score offense variables (OVs) 4 and 7 of the sentencing guidelines. We disagree. In Lockridge,
our Supreme Court held that Michigan’s sentencing guidelines are constitutionally deficient, in
violation of the Sixth Amendment right to a jury trial, to the extent that they “require judicial
fact-finding beyond facts admitted by the defendant or found by the jury to score offense
variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range
. . . .” Lockridge, 498 Mich at 364. To remedy this deficiency, the Court held that the guidelines
are advisory only. Id. at 365. Trial courts are still required to “consult the applicable guidelines
range and take it into account when imposing a sentence.” Id. at 392. Courts are permitted to
score the OVs using judge-found facts. Id. at 392 n 28. As this Court explained in People v
Biddles, 316 Mich App 148, 158; 896 NW2d 461 (2016), the Lockridge Court was not concerned
about judicial fact-finding “in and of itself,” but “judicial fact-finding in conjunction with
required application of those found facts for purposes of increasing a mandatory minimum
sentence range . . . .” To remedy the violation of a defendant’s Sixth Amendment right in cases
that predated Lockridge, the Court adopted a remand procedure modeled after the procedure in
United States v Crosby, 397 F3d 103 (CA 2, 2005). Lockridge, 498 Mich at 395-397.

        In this case, the trial court sentenced Broadnax almost 10 months after Lockridge was
decided. “Crosby remands are warranted only in cases involving sentences imposed on or before
July 29, 2015, the date of [the Lockridge] decision.” Lockridge, 498 Mich at 397. Because the
Supreme Court’s decision in Lockridge rendered the guidelines advisory, and because the trial
court sentenced Broadnax after Lockridge was decided, the trial court was permitted to score the
guidelines on the basis of judge-found facts without violating Broadnax’s Sixth Amendment
right to a jury trial. Therefore, there is no merit to Broadnax’s argument that the trial court erred
by engaging in judicial fact-finding to score the guidelines.

                           C. BROADNAX’S STANDARD 4 BRIEF

      Broadnax raises several additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4.

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                       1. INEFFECTIVE ASSISTANCE OF COUNSEL

         Broadnax raises numerous claims of ineffective assistance of counsel. Because Broadnax
did not preserve these claims, “our review is limited to errors apparent on the record.” See
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To establish ineffective
assistance of counsel, “a defendant must show that counsel’s performance fell below an objective
standard of reasonableness, and that the representation so prejudiced the defendant as to deprive
him of a fair trial.” People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). The
“defendant must overcome the strong presumption that counsel’s challenged actions were sound
trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015). To establish
prejudice, “the defendant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result would have been different.” People v Johnson, 451 Mich 115,
124; 545 NW2d 637 (1996). The burden is on the defendant to establish factual support for his
claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

       Broadnax argues that defense counsel erroneously advised him that he was subject to a
mandatory 25-year minimum sentence under MCL 769.12(1)(a) as a fourth-offense habitual
offender, which affected his decisions throughout this case. Consequently, Broadnax argues, he
waived his right to testify, so he was prevented from presenting a defense of consent.

        The prosecution originally charged Broadnax as a “super” habitual offender under MCL
769.12(1)(a), which establishes a mandatory minimum sentence of 25 years upon conviction. At
sentencing, the prosecution agreed that Broadnax was not subject to this penalty because the
statutory provision was enacted after the date of the charged offense. However, Broadnax still
qualified as a fourth-offense habitual offender under MCL 769.12(1)(b). Although Broadnax
was not subject to a mandatory 25-year minimum sentence upon conviction, he remained subject
to sentence enhancement as a fourth-offense habitual offender upon conviction, which still
exposed him to a minimum sentence of 25 years or more. Moreover, a 25-year sentence fell
within the sentencing guidelines range of 171 to 570 months scored for Broadnax’s conviction.

        At sentencing, Broadnax explained that he elected not to testify because of the possibility
that the prosecution would introduce evidence of a prior charged sexual assault from several
years earlier to impeach his claim that any sexual contact with the victim was consensual.
Broadnax did not state that his understanding of the possible penalty he faced upon conviction
influenced his decision not to testify. Similarly, although Broadnax’s affidavit states that
counsel advised him that he would be subject to a minimum sentence of 25 years if convicted,
the affidavit does not indicate whether counsel advised him that such a sentence would be
mandatory. Even if penalty concerns influenced Broadnax’s decision not to testify, those
concerns would still have existed regardless of the applicability of the mandatory penalty under
MCL 769.12(1)(a) because Broadnax would have remained at substantial risk of receiving a
minimum sentence of 25 years or more if convicted. Under these circumstances, Broadnax has
not established a reasonable probability that counsel’s advice affected his decision to testify.

        Broadnax next argues that defense counsel was ineffective for not challenging the trial
court’s ruling to allow the prosecution to present evidence of a prior charge of sexual assault as
“other acts” evidence under MRE 404(b)(1). The trial court never ruled that this evidence could
be admitted under MRE 404(b)(1), however. The prosecution filed a motion to admit this

                                                -4-
evidence under MRE 404(b)(1), and defense counsel opposed the motion. The trial court denied
the prosecution’s motion to admit the evidence in its case-in-chief, but it reserved ruling on the
admissibility of the evidence to rebut a consent defense if Broadnax chose to testify. In sum,
defense counsel challenged the admissibility of the evidence under MRE 404(b)(1) and
successfully obtained a ruling prohibiting the prosecution from offering the evidence under that
rule in its case-in-chief. Although the trial court agreed to revisit its decision if Broadnax elected
to testify and present a defense of consent, Broadnax did not testify, and the court was not asked
to revisit its decision. The evidence was never admitted. Therefore, there is no basis for
concluding that defense counsel’s performance on this issue was deficient.

        Broadnax complains that consent was not raised as a defense. The decision whether to
have Broadnax testify in support of a defense of consent was a matter of trial strategy. “A
defendant’s decision whether to testify on his own behalf is an integral element of trial strategy.”
People v Toma, 462 Mich 281, 304; 613 NW2d 694 (2000). “[T]his Court will not second-guess
counsel regarding matters of trial strategy” and “will not assess counsel’s competence with the
benefit of hindsight.” People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843
(1999). If Broadnax had elected to testify in support of a consent defense, it risked opening the
door to allowing the prosecution to offer evidence of a previous sexual assault committed by
Broadnax. Broadnax has not overcome the presumption that the strategy of foregoing a consent
defense and instead focusing on attacking the credibility and reliability of the victim’s testimony
was unreasonable, especially considering the inconsistencies about various details of the victim’s
account and the seeming implausibility of the victim’s account of walking home from Southfield
to Hamtramck in sub-freezing temperatures with no shoes or jacket.

        Broadnax argues that defense counsel was ineffective for failing to take advantage of all
opportunities to impeach the victim’s testimony. Counsel’s decisions regarding what evidence to
present and how to question witnesses are matters of trial strategy. “[T]his 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). Broadnax must overcome the strong
presumption that counsel exercised sound trial strategy. See id.

        It is apparent from the record that defense counsel attempted to impeach the victim’s
testimony regarding each of the matters cited in Broadnax’s argument, including her physical
descriptions of the men involved, how she was able to walk home, and other details of her
account. Broadnax argues that counsel could have further impeached the victim’s testimony by
using other witnesses’ statements that were inconsistent with the victim’s testimony. However,
it was clear from the testimony at trial that all three women present at the party had different
recollections of the events and individuals involved. Although counsel did not directly impeach
the victim with these inconsistencies, he commented on them in his closing argument to argue
that the victim’s testimony was not credible. Broadnax has not established that counsel’s
decision to challenge the victim’s credibility in this manner was unreasonable.

        Broadnax argues that defense counsel was ineffective for not offering a defense expert to
show that it would have been impossible for the victim to have walked from Southfield to
Hamtramck in sub-freezing temperatures, without a jacket or shoes, without contracting
hypothermia or frostbite. However, defense counsel questioned Dr. Claps about the likelihood
that the victim would have suffered frostbite or hypothermia if she had walked from Southfield

                                                 -5-
to Hamtramck in the manner she described. Although Dr. Claps was unwilling to state with
certainty that the victim would have suffered frostbite or hypothermia under those conditions,
she agreed that the likelihood of both was high. Counsel reasonably used this testimony to argue
that the victim’s account of her trek home was not credible. Further, Broadnax has not submitted
an offer of proof showing that another witness could have offered a different opinion. Therefore,
Broadnax has not established that he was prejudiced by counsel’s failure to call an expert
witness.

        Broadnax also argues that defense counsel was ineffective for referring to Dr. Claps as an
expert in the areas of frostbite and hypothermia. Dr. Claps was a medical doctor who testified
that she had experience in treating frostbite and hypothermia. Therefore, it was reasonable for
defense counsel to agree that Dr. Claps was qualified to offer testimony in those areas.

         Broadnax argues that defense counsel was ineffective for not objecting to Dr. Claps’s
testimony regarding whether the victim likely would have suffered from frostbite or hypothermia
and whether she could have been knocked unconscious by a bottle in the absence of apparent
bruises or marks on her head. Broadnax argues that defense counsel should have objected to this
testimony as inadmissible hearsay. There is no merit to this argument. Counsel is not ineffective
for failing to raise a futile objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010). The challenged testimony involved Dr. Claps’s expert opinions, which were admissible
under MRE 702. The testimony did not involve the admission of any out-of-court statements, so
they did not involve hearsay, as defined in MRE 801(c). Therefore, counsel was not ineffective
for not objecting to this testimony.

       Broadnax also complains that the prosecution offered no medical records to support the
victim’s claim that she had blisters and pain in her feet on the day after the assault or that she
was struck in the head with a hard object, like a liquor bottle. There is no merit to this argument.
The absence of medical records about these injuries did not bar the victim from offering this
testimony. Instead, it was objectively reasonable for defense counsel to highlight that this
testimony was not supported by any medical evidence. The absence of medical records to verify
these aspects of the victim’s testimony affected only the weight of her testimony, not its
admissibility. Broadnax has not shown that counsel was ineffective in this regard.

        Broadnax argues that defense counsel was ineffective for failing to object to Detective
Michael Pieroni’s hearsay testimony. Defense counsel agreed to allow Detective Pieroni to
testify about Officer Davis’s report detailing his efforts to work with the victim to find the
location of the assault because Officer Davis was retired at the time of the trial. The parties
expressly waived any hearsay objections to Pieroni’s testimony. That decision was clearly a
matter of trial strategy. Moreover, Detective Pieroni’s testimony established that the victim did
not identify a house in Southfield as the location of the assault; instead, she provided information
suggesting a possible location in Detroit. Broadnax has not overcome the presumption that
counsel’s agreement that Detective Pieroni could testify to hearsay was objectively reasonable.

       Broadnax also argues that defense counsel was ineffective for failing to object to portions
of the prosecutor’s closing argument as not supported by the evidence. We disagree. A
prosecutor is afforded great latitude in closing argument. People v Bahoda, 448 Mich 261, 282;
531 NW2d 659 (1995). The prosecutor is permitted to argue the evidence and any reasonable

                                                -6-
inferences that may arise from the evidence in support of the prosecution’s theory of the case.
Id. After reviewing the prosecutor’s arguments, we are satisfied that the prosecutor’s remarks
arose from the evidence or reasonable inferences drawn from the evidence. Any objection to the
prosecutor’s closing argument would have been futile, so defense counsel was not ineffective for
failing to object.

        Broadnax next argues that defense counsel was ineffective for stipulating to the chain of
custody regarding the rape kit evidence. Broadnax does not identify any evidence or other
information regarding a defect in the chain of custody that could have precluded admission of
this evidence. Because Broadnax has not produced any factual support for his suggestion that an
objection based on the chain of custody could have been successful, this claim cannot succeed.

        Broadnax argues that defense counsel was ineffective for not producing any evidence to
challenge whether venue was proper in Oakland County. Throughout the case, counsel elicited
testimony regarding inconsistencies in the victim’s descriptions of the location of the assault.
During closing argument, counsel argued that the uncertainty over the location of the assault was
enough to return a not guilty verdict. Broadnax does not explain what additional evidence
counsel could have offered on this issue. Therefore, Broadnax has not established ineffective
assistance of counsel on this basis.

       In sum, Broadnax has not established that he was denied the effective assistance of
counsel at trial. Although Broadnax alternatively asks this Court to remand this case for an
evidentiary hearing on his claims, he has not demonstrated that an evidentiary hearing is
necessary to resolve the claims. See People v McMillan, 213 Mich App 134, 141-142; 539
NW2d 553 (1995). Accordingly, we deny his request for a remand.

                         2. HABITUAL OFFENDER AMENDMENT

        Broadnax argues that the prosecution improperly charged him as a “super” habitual
offender under MCL 769.12(1)(a) and that the proper remedy was dismissal of the habitual-
offender notice in its entirety, not to continue his habitual offender status under MCL
769.12(1)(b). We disagree. Broadnax did not preserve this issue, so our review is limited to
plain error affecting Broadnax’s substantial rights. See People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999). An error is plain if it is clear or obvious, and an error affects
substantial rights if it affects the outcome or the integrity of the proceedings. People v Jones,
468 Mich 345, 355; 662 NW2d 376 (2003).

        The parties agreed at sentencing that Broadnax was not subject to a 25-year mandatory
minimum sentence under MCL 769.12(1)(a) because that penalty provision was adopted after the
date of the charged offense. The parties further agreed that Broadnax was still subject to
sentence enhancement as a “regular” habitual offender under MCL 769.12(1)(b). Generally, the
prosecution is not permitted to amend the information to seek a sentence enhancement for a
habitual offender if the amendment would subject the defendant to increased sentencing
consequences. People v Hornsby, 251 Mich App 462, 472-473; 650 NW2d 700 (2002). In this
case, the amendment reduced Broadnax’s sentencing exposure by eliminating the possibility of a
mandatory 25-year minimum sentence. Broadnax does not dispute that the habitual-offender
notice was timely filed or that he otherwise qualified for sentence enhancement as a “regular”

                                               -7-
habitual offender under MCL 769.12(1)(b). Therefore, Broadnax properly remained subject to
sentence enhancement under MCL 769.12(1)(b).

        Broadnax argues that the error in originally charging him under MCL 769.12(1)(a)
affected his decision not to testify. As discussed earlier, Broadnax explained at sentencing that
he elected not to testify out of a concern that the prosecution would introduce evidence of a prior
charged sexual offense, not because of the possible penalty he faced if convicted. Even if
penalty concerns influenced Broadnax’s decision, Broadnax still faced the risk of receiving a
minimum sentence of 25 years or more if convicted. Under these circumstances, Broadnax has
not established that any misunderstanding over the applicability of MCL 769.12(1)(a) affected
his substantial rights.

                  3. BROADNAX’S WAIVER OF HIS RIGHT TO TESTIFY

        Broadnax argues that his decision not to testify was based on inaccurate advice from his
attorney. Broadnax expressly waived his right to testify on the record at trial. Broadnax never
challenged the validity of his waiver in the trial court. Therefore, this issue is unpreserved. To
the extent Broadnax argues that his decision not to testify was the result of ineffective assistance
of counsel, he did not preserve this claim, so “our review is limited to errors apparent on the
record.” See Matuszak, 263 Mich App at 48.

        In an affidavit submitted in support of his Standard 4 brief, Broadnax asserts that his
decision not to testify was based on counsel’s inaccurate advice that the prosecution would seek
to introduce evidence of his prior criminal sexual conduct case, which would enhance the
likelihood of his conviction, and that he would receive a minimum sentence of 25 years if
convicted. First, with respect to the admissibility of the prior charged sexual offense, the record
does not support Broadnax’s claim that counsel gave inaccurate advice. Although Broadnax
questions whether any ruling allowing “other acts” evidence under MRE 404(b)(1) would have
been proper, the trial court denied the prosecution’s initial request to introduce this evidence.
Accordingly, the only inquiry is whether Broadnax’s decision not to testify was based on sound
advice from counsel. Because the trial court agreed to revisit the admissibility of the prior sexual
charged offense if Broadnax chose to testify, it was not objectively unreasonable for counsel to
advise Broadnax of the risk that the prosecution would seek to offer this evidence against him if
he did testify.

        Broadnax also again argues that his decision to testify was based on counsel’s inaccurate
advice that he was facing a minimum term of 25 years if convicted. However, it is not apparent
from the record that Broadnax’s decision to testify was based on counsel’s advice about a
potential sentence if convicted. Regardless, as explained earlier, even though Broadnax was not
subject to a mandatory minimum sentence of 25 years, he was still subject to a sentence
enhancement as a fourth-offense habitual offender. That status still exposed him to a minimum
sentence of 25 years or more, which was a distinct possibility considering that the high end of the
sentencing guidelines range was 570 months. Under these circumstances, Broadnax has not
established that any advice about the possibility of a 25-year sentence upon conviction was plain
error or a reasonable probability that any misunderstanding regarding the sentence enhancement
affected his decision not to testify.


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                             4. PROSECUTORIAL MISCONDUCT

        Broadnax argues that the prosecutor engaged in misconduct by initially charging him as a
“super” habitual offender under MCL 769.12(1)(a). As discussed previously, the prosecutor
agreed at sentencing that Broadnax was not subject to this penalty provision, and Broadnax has
not established that any misunderstanding over the applicability of MCL 769.12(1)(a) affected
his decision to testify.

         Broadnax also argues that the prosecutor engaged in misconduct during her closing
argument by making statements of fact that were not supported by the record. As discussed
earlier, we are satisfied from our review of the record that the prosecutor’s challenged remarks
were supported by the evidence and reasonable inferences arising from the evidence. Broadnax
has not established that the prosecutor’s conduct was improper.

                              5. THE TRIAL COURT’S RULINGS

        Broadnax argues that he is entitled to relief because of the trial court’s erroneous rulings.
Broadnax again challenges the trial court’s decision to sentence him as a fourth-offense habitual
offender. Broadnax argues that he was not subject to a 25-year mandatory minimum sentence
under MCL 769.12(1)(a). However, he does not dispute that he was timely charged with being a
fourth-offense habitual offender under MCL 769.12, and removal of the possibility of a
mandatory 25-year minimum sentence did not affect Broadnax’s status as an habitual offender
subject to sentence enhancement under MCL 769.12(1)(b). Accordingly, Broadnax is not
entitled to relief on this issue.

       Broadnax also argues that the trial court erred by admitting evidence of his prior sexual
offense under MRE 404(b)(1). As explained earlier, however, the trial court did not rule that this
evidence was admissible, and it reserved ruling on the admissibility of the evidence if Broadnax
chose to testify and claim that his sexual contact with the victim was consensual. Because
Broadnax did not testify, the trial court did not have occasion to revisit its decision. Therefore,
Broadnax has not established any error with respect to this issue.

       We affirm.

                                                              /s/ Deborah A. Servitto
                                                              /s/ Jane E. Markey
                                                              /s/ Peter D. O’Connell




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