Background
Benjamin Mercer was convicted by a jury of attempted rape and gross sexual imposition involving his niece, B.V., who was under 13 when the offenses occurred. B.V. testified that Mercer sexually assaulted her during family visits in Georgia and Ohio. Her parents, a sexual-assault nurse examiner, and the investigating detective also testified, and the State introduced messages Mercer sent to B.V.
The State additionally introduced two jail messages in which Mercer apologized to his wife for hurting her and breaking her trust. During closing argument, the prosecutor characterized those messages as supporting an inference of guilt and, in common parlance, as a confession. Mercer contended that the messages concerned marital infidelity, but he did not object when they were admitted or during closing argument. After the guilty verdicts, the trial court denied his motion for a new trial without a hearing.
The Court’s Holding
The Fifth District affirmed. Because Mercer did not object to the jail messages or the prosecutor’s closing argument, the court reviewed his prosecutorial-misconduct claim for plain error. It held that Mercer failed to show a reasonable probability that the challenged argument affected the verdict, emphasizing B.V.’s testimony and the other evidence supporting the convictions.
The court also concluded that the prosecutor permissibly asked the jury to infer guilt from the messages. The jury had been instructed that it could draw reasonable inferences, that direct and circumstantial evidence carried equal weight, and that closing arguments were not evidence. The trial court, moreover, had not definitively barred evidence that Mercer’s apologies concerned infidelity; it had found the proposed questioning hearsay and not relevant “at this time,” leaving open the possibility of revisiting the issue.
Finally, the court held that the trial court did not abuse its discretion by denying Mercer’s Crim.R. 33(A)(2) motion without a hearing. Mercer did not attach the affidavit required by Crim.R. 33(C), and an affidavit later submitted with his reply did not satisfy that requirement. The trial court nevertheless reviewed hours of jail communications, relevant transcript portions, and the parties’ arguments before denying relief.
Key Takeaways
- Failure to object to admitted evidence or a prosecutor’s closing argument limits appellate review to plain error.
- A prosecutor may urge jurors to draw a reasonable inference from admitted jail communications, while the jury remains responsible for deciding whether to draw that inference.
- A Crim.R. 33(A)(2) motion alleging prosecutorial misconduct must be supported by the affidavit required by Crim.R. 33(C), and a trial court may deny a noncompliant motion without a hearing.
Why It Matters
The decision underscores the importance of timely trial objections and a complete evidentiary proffer. A tentative relevance or hearsay ruling does not preserve a claim that the defense was categorically prevented from presenting contextual evidence, particularly when counsel does not later renew the issue.
It also confirms that strict compliance with Crim.R. 33’s affidavit requirement can determine whether a defendant receives a hearing on a misconduct-based new-trial motion, even when the trial court independently conducts a substantial review of the record.