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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UNPUBLISHED

February 20, 2018

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 fourthdegree 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