Defense urges reversal in Schmaltz appeal, citing voir dire remarks and prior-consistent evidence

Mary Newton, defense attorney for Ezekiel Schmaltz, told the appellate court, "we are ultimately asking the court to vacate the jury's verdict and either dismiss the indictment or give mister Schmaltz a new trial." The argument focused on three main claims: an improper prosecutor remark during voir dire, the admission of prior-consistent statements about the child-victim's account, and whether two felony convictions should have been merged.

The case arises from trial testimony in which the minor victim said she woke up multiple times and found her pants lowered while a relative shone a flashlight on her; the defense says the evidence on the statutory element of purpose for sexual arousal or gratification was insufficient. Newton summarized trial evidence and objections, and she argued that the prosecutor’s comments in voir dire — that jurors could convict on alternate theories without punishing the defendant twice — were improper under the statute cited in briefing, and under controlling precedent the remark could warrant relief.

Caroline Weldon, representing the State, responded that the defense waived contemporaneous review by not objecting at voir dire and that, even if the court considered the remark, the defendant could not satisfy plain-error review. "The defendant cannot show three of the plain error factors have been established," Weldon said, and she urged the court to affirm the convictions. Weldon added factual details the jury heard, including testimony that the defendant told officers he had "apparently" pulled down the child's pants the night in question.

Both counsel and the bench addressed the separate issue of merger. Newton said the trial court had merged service of the sentences but had not formally merged the felony convictions in the judgment. At argument the prosecutor acknowledged the convictions should have been merged; the appellate judges likewise questioned whether official merger had occurred and noted the matter needed correction if it had been omitted from the judgment.

Newton also contended the trial court improperly permitted multiple witnesses to repeat the child’s initial statements after defense cross-examination attacked her credibility, arguing those prior-consistent statements did not address the specific inconsistencies raised by the defense and were therefore admitted in error. The state replied that the trial court permitted the statements to rehabilitate the victim after vigorous impeachment and characterized them as properly admitted under the applicable hearsay-exception doctrine.

Newton further argued insufficiency of evidence as to the statutory purpose element for the "observation without consent" counts; she asked the court to consider reversal on that basis in the alternative. The state maintained there was compelling testimonial evidence, including the victim's account and the defendant's statements to police, supporting the convictions.

At the close of argument the relief sought remained an appellate determination: vacatur and either dismissal or a new trial, and correction of the trial court's failure to formally merge the felony convictions in the judgment. The court took the arguments under advisement.