State v. Hensley, ___ N.C. App. ___, 2021-NCCOA-185 (May. 4, 2021)

The defendant was convicted of taking indecent liberties with a minor, charges that arose from sexual assaults against his daughters. During closing argument, the prosecutor said that the defendant’s excuse for possibly touching his daughters’ breasts—that he lacked feeling in his hands and fingers—was “ridiculous.” (Slip op. at ¶ 10). He explained that the defendant could adjust a microphone and open candy wrappers, which defendant demonstrated during the trial. The prosecutor also stated that the fight between the defendant and one of his daughters over her phone occurred because “he wanted to get in, and I guess see what was in there, what those pictures were, what those text messages were.” Id. He explained, “it makes a lot more sense when you put it in the context of a father who has a sexual attraction to his daughters.” Id. The defendant (who did not object to these statements when they were made) argued on appeal that the trial court erred by failing to intervene on its own motion to correct these statements.

The Court of Appeals rejected the defendant’s argument. The Court characterized the “ridiculous excuse” statements as a small part of an otherwise proper argument that the jury should not believe the defendant’s claim that a lack of feeling in his fingers prevented him from knowing if he had touched his daughters’ breasts. Additionally, the Court noted that the prosecutor used the word “ridiculous” only twice in his lengthy closing argument. The Court said that although the prosecutor should not have expressed his personal belief that the defendant’s testimony was false, his remarks were not so grossly improper as to render the proceeding fundamentally unfair.

The Court further determined that it was not improper for the prosecutor to argue that the defendant wanted to access his daughter’s phone to look at inappropriate photos. This was a reasonable inference based upon the evidence introduced at trial. Because the argument was not improper, the trial court was not required to intervene.