PEOPLE OF MI V JOHN ANTHONY LEIS
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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,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 163190
Genesee Circuit Court
LC No. 92046347 FH
JOHN ANTHONY LEIS,
Defendant-Appellant.
________________________________________
Before: Gribbs, P.J., and Marilyn Kelly and White, JJ.
MARILYN KELLY, J. (dissenting).
I respectfully dissent.
The prosecution improperly questioned Barbara Cody concerning prior consistent statements
about the alleged sexual abuse that one of the complainants had made to her. People v Rosales, 160
Mich App 304, 308; 408 NW2d 140 (1987). A witness’s prior consistent statement is admissible only
to rehabilitate the witness following impeachment by a prior inconsistent statement or to rebut a charge
of recent fabrication. MRE 801(d)(1); People v Stricklin, 162 Mich App 623, 627; 413 NW2d 457
(1987). Here, the prosecutor improperly used Cody's testimony to bolster the complainant's assertion
that defendant had sexually abused her. Cody's testimony was inadmissible hearsay, as it was offered
to prove the truth of the matter asserted. MCR 801(c); People v Harris, 201 Mich App 147, 150
151; 505 NW2d 889 (1993).
I cannot agree with the majority that a curative instruction could have removed the prejudice.
Moreover, I believe that our failure to review the issue does result in manifest injustice. As in most
criminal sexual assault cases, the jury's assessment of credibility in this case was crucial. Had the
hearsay testimony not been admitted, I cannot say beyond a reasonable doubt that not one juror would
have voted to acquit defendant. People v Scobey, 153 Mich App 82, 85-86; 395 NW2d 247 (1986).
I would reverse.
/s/ Marilyn Kelly
-1
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