State v. Fletcher, 370 N.C. 313 (Dec. 8, 2017)

(1) On discretionary review of a unanimous, unpublished decision of the Court of Appeals in this sexual exploitation of a minor case, the court held that although statements in the prosecutor’s final jury argument were improper, they were not prejudicial. The defendant claimed that the images at issue depicting his penis near the child’s mouth did not show actual conduct and instead had been digitally manipulated to depict the conduct. In closing argument to the jury, the prosecutor argued that the crime of sexual exploitation of a minor could occur if the image was altered or manipulated to show a person engaged in a sexual act with a child. The prosecutor argued that the child does not have to actually be involved in the sexual act itself. The defendant was convicted and he appealed. The court held that the prosecutor’s argument was improper. According to the plain language of the statute, the minor is required to have engaged in sexual activity. When the minor depicted in an image appears to have been shown as engaged in sexual activity as a result of digital manipulation, the defendant has not committed the offense of first-degree sexual exploitation of a minor. Thus, the prosecutor’s argument misstated the applicable law. However, the court went on to hold that although the trial court erred by sustaining the defendant’s objection to the challenge argument, the error did not justify a new trial. It reasoned that when, as here, a misstatement of the law during jury argument is cured by correct jury instructions, no prejudice occurs. Here, the trial court’s instructions to the jury explicitly stated that to find the defendant guilty the jury had to find that the defendant used, induced, coerced, encouraged or facilitated the child victim’s involvement in sexual activity.

(2) In this first-degree sexual exploitation of a minor case, the trial court did not err by denying the defendant’s request that the jury be instructed that the “oral intercourse” element of the offense requires penetration. The court determined that whether the term “oral intercourse” as used in the statute proscribing this crime requires penetration presents an issue of first impression. The court concluded that the General Assembly intended the relevant statutory language to be construed broadly to provide minors with the maximum reasonably available protection from sexual exploitation. The court went on to hold that the term “oral intercourse” was intended as a gender-neutral reference to cunnilingus and fellatio, neither of which require penetration. Thus, the trial court did not err by refusing to instruct the jury in accordance with the defendant’s request.