                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 8, 2015
               Plaintiff-Appellee,

v                                                                   No. 321374
                                                                    Eaton Circuit Court
JASON ROBERT ALGRA,                                                 LC No. 12-020234-FC

               Defendant-Appellant.


Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.

PER CURIAM.

        Defendant, Jason Robert Algra, appeals as of right his conviction, following a jury trial,
of five counts of third-degree criminal sexual conduct (CSC III). MCL 750.520d(1)(e) (sexual
penetration with student at least 16 but less than 18 years old). The jury acquitted Algra of three
counts of first-degree criminal sexual conduct (CSC I) involving a second complainant. The trial
court sentenced Algra to serve 5 to 15 years’ imprisonment. We affirm.

                                I. FACTUAL BACKGROUND

        According to the victim, when he was 17 years old, he had a sexual relationship with
Algra. Algra taught at the victim’s school as a swim coach. The sexual contact was eventually
reported to police officers. The victim testified that when he initially spoke with Detective Jason
Gooley, he was not entirely truthful. The victim explained that he was embarrassed and afraid
because a second complainant had suffered ridicule. The second complainant testified that he
had a number of sexual encounters with Algra, including an encounter in a courtyard next to a
church parking lot. Various witnesses testified that the second complainant was dramatic and
had a tendency to exaggerate.

         In addition to a number of witnesses who testified about Algra’s reputation, a student
testified that the victim was “obsessed” with Algra. During cross-examination, the prosecution
asked the student whether the victim had rejected him for a relationship. The student denied it.
The prosecution then impeached the student with a Facebook conversation between the student
and the victim, in which the student sought a relationship with the victim but the victim said that
he did not want to hurt the student. The student admitted that the conversation was genuine and
accurate, and the trial court admitted the Facebook conversation as impeachment evidence.



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        Ultimately, the jury found Algra guilty of five counts of CSC III with the victim, but it
acquitted him of three counts of CSC I with the second complainant. Algra now appeals.

                             II. PROSECUTORIAL MISCONDUCT

       Algra contends that the prosecutor committed misconduct by pursuing a line of
questioning about whether the second complainant was “terrorized” by other students. We
disagree.

        As an initial matter, we note that Algra did not challenge this testimony below on the
basis of prosecutorial misconduct. To preserve a claim of prosecutorial misconduct, a defendant
must timely and specifically challenge the prosecutor’s statements. People v Unger, 278 Mich
App 210, 234-235; 749 NW2d 272 (2008). When a defendant does not do so, we review his or
her claim for plain error affecting the defendant’s substantial rights. Id.

       This Court examines claims of prosecutorial misconduct on a case-by-case basis,
considering the prosecutor’s statements in context. People v Roscoe, 303 Mich App 633, 648;
846 NW2d 402 (2014). The question is whether the conduct denied the defendant a fair and
impartial trial. Id. A prosecutor’s good-faith attempt to introduce relevant evidence is not
misconduct unless the attempt itself was unduly prejudicial. People v Noble, 238 Mich App 647,
660-661; 608 NW2d 123 (1999).

        Reviewing the challenged statements in context, we conclude that the prosecutor did not
commit misconduct. In this case, the victim discussed the treatment of the second complainant
when explaining why he did not fully disclose Algra’s conduct to police in the first instance.
The victim’s reasons for failing to fully disclose Algra’s conduct to police during the initial
interview was relevant to the victim’s credibility. Nothing about the prosecutor’s questions
suggests that she was deliberately attempting to inflame the jury rather than to explore a
pertinent issue. The prosecutor’s questions in and of themselves were not prejudicial or
improper, and the prosecutor attempted to constrain her questions to the boundaries of the trial
court’s evidentiary rulings.

       We conclude that the prosecutor’s conduct was a good-faith attempt to admit relevant
evidence. Therefore, Algra has failed to show error, much less a plain error affecting his
substantial rights.

                                      III. ALIBI REBUTTAL

        Algra contends that the trial court improperly refused to grant his request for a mistrial
after the prosecutor introduced evidence that was not pertinent to rebutting his alibi defense. We
disagree.

        This Court reviews for an abuse of discretion the trial court’s decision to grant or deny a
motion for a mistrial. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). A
mistrial is warranted only when an error or irregularity in the proceedings impaired the
defendant’s ability to get a fair trial. Id. Curative instructions are generally sufficient to cure the
prejudice of most remarks because we presume that jurors follow their instructions. People v
Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).

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        In this case, the prosecution offered evidence of a text message conversation between
Algra and another man. In the conversation, the other man asked if anyone was with Algra, and
he responded that he was alone, waiting for his boyfriend to get home, and planning to pick his
boyfriend’s brother up from Spiral.1 The trial court initially admitted the evidence but, following
a brief recess, it discovered that the prosecutor mistakenly believed that Algra’s alibi included
April 2, when it only concerned April 4 to April 8. The trial court instructed the jury that the
evidence was not admissible and stated: “if you have any recollection of what that exhibit was,
erase that memory of that exhibit, okay?”

        We conclude that the trial court did not abuse its discretion when it refused to grant a
mistrial on this ground. Any prejudice from the erroneous admission of this evidence was slight,
and there is no indication that the trial court’s instruction did not cure it. It was unlikely to shock
the jury that Algra had visited a gay bar to drive his boyfriend’s brother because Algra openly
admitted that he was homosexual and shared living arrangements with his boyfriend. Nor did the
evidence strongly refute Algra’s statement that he lacked funds to travel over spring break, since
a brief drive is different from taking a vacation. The trial court also issued a curative instruction.

        We conclude that the trial court’s ruling was within the principled range of outcomes.
This irregularity did not prevent Algra from having a fair trial.

                                   IV. PICTURES OF GENITALS

        Algra contends that the trial court improperly allowed Eaton County Sherriff Deputy
Jeffery Fellows to testify about pictures of male genitalia that he found on Algra’s school and
home computers because this evidence was unfairly prejudicial. We disagree.

       This Court reviews for an abuse of discretion preserved challenges to the trial court’s
evidentiary rulings. People v Duncan, 494 Mich 713, 722; 835 NW2d 399 (2013). We review
de novo the preliminary questions of law surrounding the admission of evidence, such as
whether a rule of evidence bars admitting it. Id. at 723.

        “‘Relevant evidence’ means evidence having 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.” MRE 401. Relevant evidence is generally admissible. MRE
402. Evidence is probative if it has a tendency to make a fact of consequence more or less
probable. People v Crawford, 458 Mich 376, 389-390; 582 NW2d 785 (1998). Facts that may
have influenced a witness’s testimony or indicate a witness’s bias are relevant. People v
McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005).

       In this case, the second complainant testified that Algra sent him two photographs of
male genitalia through a dating website. Deputy Fellows testified that he found photographs of
male genitalia on Algra’s school and home computers. This evidence was relevant because it
tended to bolster the second complainant’s credibility. Additionally, specifically regarding the


1
    Another witness had testified that Spiral is a “gay bar.”


                                                   -3-
images on the computer, a number of witnesses had testified that Algra had a reputation for
acting professionally as a teacher. Algra’s professionalism made it less likely that he would
engage in sexual activities with students. Evidence that tended to show that Algra was not
professional, such as having images of male genitalia on his work computer, tended to refute that
implication. We conclude that this evidence was relevant.

        However, the trial court may exclude even relevant evidence 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. Unfair prejudice exists when there is a danger that the jury
will give undue or preemptive weight to marginally probative evidence. People v Mardlin, 487
Mich 609, 627; 790 NW2d 607 (2010). The trial court has the best opportunity to
contemporaneously assess the relative weight of the evidence’s probative value and prejudicial
effect. People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).

        As previously discussed, this evidence was more than marginally probative. Further,
there was no indication that the jury would give the testimony undue or preemptive weight. The
entire case involved sexual material, and a brief and general description of a photograph is not
particularly shocking. The trial court also clearly considered the possible prejudice of the
photographs and ways to lessen it. It determined that showing the jury the actual pictures would
be unduly prejudicial, but allowing the jury to hear testimony about what the pictures contained
would be less so. The trial court was in the best position to make that determination. It also
gave a limiting instruction about the use of the evidence. We conclude that its decision was a
principled outcome and thus not an abuse of discretion.

                                         V. HEARSAY

      Algra contends that the trial court improperly admitted inadmissible hearsay while
impeaching the student who testified that the victim was “obsessed” with him. We disagree.

        Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is generally inadmissible, unless it is subject to a hearsay exception. MRE 802;
Duncan, 494 Mich at 724. The improper admission of hearsay may implicate the defendant’s
state and federal constitutional rights. See People v Dendel (On Second Remand), 289 Mich App
445, 452-453; 797 NW2d 645 (2010).

       Regarding prior inconsistent statements, MRE 613(b) provides that

       [e]xtrinsic evidence of a prior inconsistent statement by a witness is not
       admissible unless the witness is afforded an opportunity to explain or deny the
       same and the opposite party is afforded an opportunity to interrogate the witness
       thereon, or the interests of justice otherwise require. . . .

A prior inconsistent statement is not hearsay because “[t]he purpose of extrinsic impeachment
evidence is to prove that the witness made a prior inconsistent statement—not to prove the
contents of the statement.” People v Jenkins, 450 Mich 249, 256; 537 NW2d 828 (1995).


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       In this case, the student testified that he had never sought a relationship with the victim.
In the Facebook conversation, the student asked the victim to engage in a relationship. The
prosecutor admitted evidence of the student’s inconsistent statement. In response to defense
counsel’s objection, the prosecution stated that they were seeking to admit the statement for
impeachment. The trial court admitted the statement into evidence for the limited purpose of
impeachment.

       To the extent that Algra contends that the victim’s portion of the conversation was also
hearsay, we disagree. “An out-of-court statement introduced to show its effect on a listener, as
opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE
801(c).” People v Gaines, 306 Mich App 289, 306-307; 856 NW2d 222 (2014). This occurs
when the value of the statement does not depend on the truth of the statement. Id. at 307.

       In this instance, to the extent that the victim’s statements were also admitted, they were
also not offered to prove the truth of the matter asserted. The value of the Facebook statements
did not depend on whether the victim and the student did, or did not, engage in a relationship.
The prosecutor offered the statements to show that the student was less than truthful on the
witness stand about whether he ever wanted a relationship with the victim and whether the
victim denied his request, and the trial court limited the purpose of the evidence to impeachment.
We conclude that the trial court did not abuse its discretion by admitting the statement because it
was not hearsay.

              VI. TESTIMONY INVOLVING THE SECOND COMPLAINANT

       Algra raises two issues involving the second complainant—that the trial court improperly
excluded testimony of a school counselor that he was an “over-exaggerator” and improperly
admitted a search warrant exhibit as evidence during an attempt to rehabilitate his credibility.

        A preserved error is the exclusion of evidence and is grounds for reversal only if it
affirmatively appears that it is “more probable than not that the error was outcome
determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). When the
evidentiary error is preserved, nonconstitutional error, we presume that the error is harmless
unless it appears from an examination of the entire record that it is more probable than not that
the error affected the outcome. Id. at 496. “Merely framing an issue as constitutional does not
make it so.” People v Blackmon, 280 Mich App 253, 261; 761 NW2d 172 (2008).

         As stated above, the jury acquitted Algra of the CSC charges involving the second
complainant. These issues are purely evidentiary issues—neither threatened to deprive Algra of
a fair trial. Therefore, even if we found merit in Algra’s claims,2 he cannot show that it is more


2
  Were we to fully analyze these issues, we would conclude that they lack merit. “The scope of
cross-examination is within the discretion of the trial court,” People v Canter, 197 Mich App
550, 564; 496 NW2d 336 (1992), and its decision to limit cross-examination on an issue that had
been addressed—albeit with different vocabulary—did not fall outside the range of principled
outcomes. The trial court also did not err by admitting as prior consistent statements some of the


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probable than not that his inability to cross-examine a witness regarding the second
complainant’s character or the propriety of the prosecutions rehabilitation of the second
complainant’s credibility affected the outcome of his case. Because the jury acquitted Algra of
the claims involving the second complainant, we conclude that these evidentiary errors are
harmless.

                                 VI. CUMULATIVE ERROR

        Finally, Algra contends that cumulative errors entitle him to a new trial. “The cumulative
effect of several minor errors may warrant reversal even where individual errors in the case
would not warrant reversal.” People v Knapp, 244 Mich App 361, 388; 624 NW2d 227 (2001).
We have found no errors in this case. We conclude that Algra has not shown that cumulative
errors warrant reversal.

       We affirm.

                                                            /s/ Stephen L. Borrello
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Peter D. O’Connell




second complainant’s statements that Detective Gooley recorded in a search warrant, see MRE
801(d)(1)(B), because the prosecution offered statements to rehabilitate the second
complainant’s credibility, not Detective Gooley’s.


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