                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 20, 2018
              Plaintiff-Appellee,

v                                                                  No. 335664
                                                                   Oakland Circuit Court
JAMES WILLIAM FAHRENKRUG,                                          LC No. 2016-258975-FH

              Defendant-Appellant.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

        A jury convicted defendant of one count each of third-degree criminal sexual conduct
(CSC-III), MCL 750.520d (sexual penetration with a physically helpless victim), and fourth-
degree criminal sexual conduct (CSC-IV), MCL 750.520e (force or coercion), for the sexual
assault of a young friend napping on his couch. Defendant’s sole contention on appeal is that the
court should have instructed the jury that it could draw an adverse inference regarding the
content of certain evidence destroyed by the victim. We discern no error and affirm.

                                           I. FACTS

        Defendant is an elderly man who frequented a Royal Oak McDonald’s. He befriended an
18-year-old, homeless male employee—RC. Defendant offered his couch as a safe haven for RC
to nap upon. RC visited defendant’s apartment on several occasions, sometimes to nap and
sometimes to spend time with defendant. RC stored some of his clothing at defendant’s
apartment and defendant allowed RC to use his computer. Defendant described that he tried to
be a “father figure” for the young man.

        On February 1, 2016, RC awoke from his nap when he felt defendant performing fellatio
on him. Defendant grabbed RC’s hand and placed it on his penis. RC pulled his hand away,
jumped up and left the apartment. RC testified that as he left, defendant stated, “I hope you
don’t think I’m too much of a perv.”

       Defendant readily admitted the sex act to the police, claiming that he and RC shared a
consensual sexual relationship. It was their ritual, defendant asserted, to watch pornography on
RC’s cell phone before defendant performed fellatio on RC. By his third police interview,
defendant recanted this account and reported that RC was fully asleep on February 1 when


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defendant unzipped his pants and removed his penis before starting fellatio. Defendant then
indicated that this was the only sexual encounter between him and RC.

         RC denied any consensual sexual relationship and denied watching pornography on his
phone with defendant. RC testified that on February 1, 2016, he possessed a cell phone that was
given to him by a church homeless shelter. RC “threw . . . away” that phone later in February
when he secured a new phone. RC replaced his cell phone before any charges were brought
against defendant. And RC insisted, “There was no evidence on there.” The lead detective
testified that he never asked to see RC’s phone and asserted that even if the phone was available
to investigate, no pornographic videos viewed on the Internet would be present unless the
phone’s owner had “downloaded” the material onto the phone.

         At trial, defendant requested a special jury instruction regarding RC’s missing cell phone.
It was essential to his case, defendant asserted, to demonstrate that he and RC shared a
consensual sexual relationship. Part of that relationship included watching pornographic videos
together on RC’s phone. “The Royal Oak Police Department knew that defendant was claiming
videos on [RC’s] cell phone were viewed as part of the consensual sexual act between the parties
and that the videos were consistent with Defendant’s version of the events.” Yet, the
investigating detective failed to secure the evidence. And RC “destroyed potentially exculpatory
evidence” by throwing away his phone before charges were brought. This denied defendant a
fair trial. Accordingly, he requested the following jury instruction:

       You may find that certain evidence was destroyed prior to the Trial in this case.
       If you find that any such destroyed evidence may have been potentially
       exculpatory, you may draw an inference that the evidence would not support the
       testimony of the complaining witness in this case.

        The trial court denied defendant’s request. The court noted that this instruction is given
when the police lose or destroy evidence, but here, the police never had the phone. Moreover,
there was no evidence that RC threw away the phone “deliberate[ly]” or “specifically to try to
taint or skew the investigation.” Rather, RC simply secured a new phone and no longer needed
the old one. The court continued:

       Counsel’s statements are all speculative in nature that he believes or he thinks
       there might have been. And, so there’s certainly no indication that there was any
       sort of evidence let alone that it was exculpatory on that phone.

The court did not prevent defendant from arguing this theory, however. During closing
arguments, defense counsel contended that RC purposefully threw away his phone because he
knew it contained the pornographic videos that he and defendant watched and therefore would
exonerate defendant.

                                          II. ANALYSIS

        We review de novo legal questions underlying a claimed instructional error, and review
for an abuse of discretion a court’s determination whether a jury instruction applies to the facts
of the case. People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). “The defendant bears
the burden of establishing that the asserted instructional error resulted in a miscarriage of
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justice.” Id. The trial court must grant a defendant’s request for a jury instruction if that
instruction is supported by record evidence. People v Riddle, 467 Mich 116, 124, 649 NW2d 30
(2002).

        In Michigan, a criminal defendant “is entitled to have produced at trial all evidence
bearing on guilt or innocence that is within the prosecutor’s control.” People v Davis, 199 Mich
App 502, 514; 503 NW2d 457 (1993), overruled in part on other grounds People v Grissom, 492
Mich 296, 319-320; 821 NW2d 50 (2012) (emphasis added). When an agent of the government
destroys or loses evidence, a criminal defendant may be entitled to an instruction that “if [the
jury] determines that the prosecutor acted in bad faith it may infer that the destroyed, potentially
exculpatory evidence would have been favorable to defendant.” People v Cress, 250 Mich App
110, 157; 645 NW2d 669 (2002), rev’d on other grounds 468 Mich 678; 664 NW2d 174 (2003).
Michigan courts have not extended this principle to cases in which the victim of the defendant’s
crime destroys potentially exculpatory evidence, either intentionally or unintentionally. Indeed,
other jurisdictions have expressly declined to make this extension. See United States v Wise, 221
F3d 140 (CA 5, 2000); Matthews v State, 132 So3d 646 (Miss Ct App, 2014); Johnson v State,
753 A2d 438 (Del, 2000). As neither the police nor the prosecutor ever gained control of the
victim’s cell phone, the prosecution cannot be deemed responsible for its loss and defendant was
not entitled to an adverse inference instruction.

        We further note that defendant was not prejudiced by the lack of an instruction in this
case. A victim’s destruction of evidence affects the victim’s credibility. See People v Higgins,
45 AD3d 975; 845 NYS2d 521 (2007). Defense counsel argued in closing argument that
defendant and RC had a consensual sexual relationship and had a ritual of watching pornography
on RC’s phone before engaging in sex acts. Counsel contended that RC threw away the cell
phone he used during this relationship, not because he got a new phone, but because he wanted
to destroy evidence that would corroborate defendant’s version of events. The jury did not credit
this theory and convicted defendant as charged, just as it could have done if the adverse
inference instruction had been read.

       We affirm.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Stephen L. Borrello
                                                             /s/ Brock A. Swartzle




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