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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TIMOTHY ALAN STORRS, Defendant-Appellant.

UNPUBLISHED September 22, 2000

No. 214412 Leelanau Circuit Court LC No. 98-000950-FH

Before: Smolenski, P.J., and Zahra and Collins, JJ. PER CURIAM. Following a jury trial, defendant was convicted of embezzlement over $100, MCL 750.174; MSA 28.3171. He was sentenced to nine months' imprisonment and twenty-four months' probation. Defendant appeals as of right. We reverse and remand for a new trial. Defendant was a salesperson for Harbor Sea Doo ("Harbor"), a watercraft dealer. Defendant allegedly told one of Harbor's customers to make a check for Harbor merchandise payable to defendant personally and not the store, and then kept the money. At trial, defendant's defense was that he had no intent to embezzle, but rather had a claim of right to the money. Defendant raises a number of issues on appeal, one of which we find dispositive. We agree with defendant that the prosecutor's improper comment on defendant's failure to testify denied defendant a fair trial. Therefore, defendant is entitled to a new trial. Defendant argues two instances of prosecutorial misconduct on appeal, but failed to preserve his first claim of prosecutorial misconduct because he did not object at trial. Appellate review of allegedly improper conduct by a prosecutor is precluded where the defendant did not object at trial to the alleged misconduct, unless a curative instruction could not have eliminated possible prejudice or failure to consider the issue would result in a miscarriage of justice. People v Ramsdell, 230 Mich App 386, 404; 585 NW2d 1 (1998). Because a curative instruction could have eliminated any possible prejudice from the prosecutor's comment that defendant "must think that he's got some problems with his case," that comment does not require reversal of defendant's convictions.

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Defense counsel's comments to the court following the prosecutor's remark on defendant's failure to testify were sufficient to preserve defendant's second claim of prosecutorial misconduct. Issues of prosecutorial misconduct are decided on a case-by-case basis, with the reviewing court examining the pertinent portion of the record and evaluating the prosecutor's remarks in context. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342 (1995). The test is whether defendant was denied a fair trial. Id. During rebuttal closing argument, the prosecutor in this case remarked as follows: Something interesting in his Claim of Right defense, -- and it occurred to me while I was sitting, listening to him argue

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