Defendant was charged with three counts of lewd or lascivious battery on a child over twelve years old. After the victim testified, the state amended the information, over the defendant's objection, to change one count from oral to digital penetration.
The court of appeals was asked to determine if the mid-trial amendment constituted prejudice to the defendant. The court found that in these circumstances, where the amendment changed an “essential element” of the charged crime and was not merely a clarification of some details, the amendment prejudiced the defendant and reversed count III.
Further the appeals court was asked to find that the state's closing argument improperly asked the jury to determine if the victim was lying as the test for determining the defendant's guilt, but the court had to affirm because the issue was not properly preserved for appeal.
The court found the arguments, though unpreserved, were inappropriate and constituted error. As the supreme court has stated:
The standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.
Had the defense attorney properly objected to the state's closing argument this entire case would have been reversed. However, this defendant should file a Motion asking the trial court to retry the case because trial counsel was ineffective in failing to properly preserve his/her objection to the state's closing argument.