State v. Harris, 221 N.C. App. 548 (Jul. 17, 2012)

In this sexual assault trial, the prosecutor’s comment during closing argument was not a comment on the defendant’s failure to testify. The prosecutor stated: “There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [the victim] and the defendant.” The comment was made in the context of an acknowledgement that while the SANE nurse who examined the victim testified to abrasions and tears indicative of vaginal penetration, the nurse could not tell if the victim’s vagina was penetrated by a penis. The prosecutor went on to recount evidence that semen containing the defendant’s DNA was found on the victim’s vaginal swabs and on cuttings from her panties. The comment emphasized the limitations of the physical evidence and was not a comment on the defendant’s decision not to testify.