State v. Cleary

DANIEL E. SCOTT, P.J.,

Opinion Author.

Appellant was charged with one count of statutory sodomy “on or about between June 1, 2009 and August 19, 2009.” Jury instructions at his trial used similar language.

In closing argument, defense counsel claimed the state had to prove the crime occurred “between” those stated dates. When the prosecutor told jurors differently in rebuttal, the defense objected, asserting that time was an “element of the crime,” and moved for a mistrial which the *547court denied. The jury found Appellant guilty.

Appellant challenges this refusal to grant a mistrial, “a drastic…