Stating the obvious without actually stating it:

Fuller v. State (Unpublished Memo): When an accused molester has been cut off from his own grandchildren, asking the jury to “draw inferences from that” gets the prosecutor’s point across without creating reversible error.

Sexual assault of a minor. Sixteen year old is assaulted by her father’s roommate in a vehicle. Roommate appeals on grounds that it’s “he said, she said” and the circumstances of when she first told family and friends of the assault make you wonder if the assault even happened. State offered the testimony of an expert who said that delayed reporting is common, especially when the teenager is still under the same roof as the offender. Roommate’s argument fails on both legal and factual sufficiency. Nothing unusual in that result.

What’s more interesting is the jury argument issue.

Apparently, father and roommate were older. Father was recovering from open heart surgery. That’s why Roommate was driving the child around. That’s also one of the reasons why the victim didn’t want to tell her father — she didn’t want to “stress him out” as he recovered from surgery.

Roomate had shown a picture to the victim of what appeared to be an eighteen year-old girl, describing the girl in the picture as his “granddaughter.”  Truth be told, the girl in the picture was not his granddaughter.  In fact, Roommate’s oldest grandchild was eleven.  And Roommate had been cut off from his daughter and grandchildren for six years or more.

In closing argument, the State urged the jury to “draw inferences from that.” Roommate objected. Trial court sustained the objection, but refused to instruct the jury to disregard or to grant a mistrial.

The standard for reversible jury argument is whether it is “extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by [a] judicial instruction to disregard [the] argument.”

The Tyler court stated that “[a]nalyzing the statements at issue in the context of the entire jury argument, we conclude that the prosecutor’s statement was acceptable as a summary of the evidence and asking the jury to make a reasonable deduction from that evidence.” The Court further stated: “the prosecutor’s argument did not inject new or harmful facts into the case.” [emphasis added]

Silence is golden: I guess this boils down to a presumption that the inferences drawn by the jury will be reasonable and permissible. I think it would be entirely permissible for the jury to conclude that: a. Roommate is a liar, b. he had a reason to lie to the victim, and c. that reason was to “facilitate” the crime — why would you lie about something as creepy as having a granddaughter you really don’t unless you were up to no good. On the other hand, what if the jury presumed that d. Roommate is an all-around bad actor, and e. Roommate had probably molested his own daughter, and perhaps even his own grandchildren? Maybe I’m too cynical, but that’s certainly a possibility in my mind. Also in my mind: This case would have turned out differently if the prosecutor had put words to that speculation. But he didn’t. His silence made those points for him, without risking reversible argument.

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