State v. Reynosa

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-1160
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1160 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Graham County Nos. 12 CRS 360-61; 50484 ERNESTO REYNOSA

Appeal by Defendant from judgment entered 20 March 2013 by

Judge James U. Downs in Superior Court, Graham County. Heard in

the Court of Appeals 29 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Olga Vysotskaya, for the State.

Mark Montgomery for Defendant-Appellant.

McGEE, Judge.

Ernesto Reynosa (“Defendant”) appeals from judgment imposed

upon jury convictions of two counts of first-degree sex offense

with a child and one count of taking indecent liberties with a

child. Defendant was sentenced to a minimum term of 192 months

and a maximum term of 243 in prison. The sole issue presented

by Defendant on appeal is whether the trial court erred by

submitting special instructions requested by the State regarding -2- contradictory or conflicting statements of Defendant. We hold

the trial court did not err.

The State’s evidence tends to show that Defendant’s wife,

Melissa Reynosa (“Ms. Reynosa”), had two sons and one daughter

before she married Defendant. On 2 December 2012, Ms. Reynosa

and her son (“B.R.”) returned home. Ms. Reynosa entered her

bedroom and saw her daughter (“S.D.”) lying on the bed with her

panties down to her ankles. Defendant had his face and mouth on

S.D.’s vaginal area.

S.D., who was twelve years old at the time of trial,

testified that, while her mother was away from the home on 2

December 2012, Defendant had S.D. lie on her mother’s bed.

Defendant pulled down S.D.’s pants and licked her private parts

between her legs. Defendant also pulled up S.D.’s shirt and put

his mouth on her breasts.

B.R. testified that, after returning home with his mother

on 2 December 2012, he heard his mother screaming at Defendant.

He went into his mother’s bedroom and saw his sister, S.D.,

lying on the bed “half naked.” Law enforcement officers came to

the home later that evening and asked B.R. questions. B.R. told

the officers that on an earlier occasion, he had seen Defendant

and S.D. in S.D.’s closet. His sister’s “pants were down a -3- little ways” and Defendant was “kissing her below the belly

button.”

Officer Ethan Henderson (“Officer Henderson”) of the Graham

County Sheriff’s Department arrived at Defendant’s home on the

evening of 2 December 2012 to investigate, and testified to the

following. Officer Henderson stated that Ms. Reynosa reported

she walked into her bedroom and saw Defendant “on top of [S.D.]

with his head down around her vagina[.]” Ms. Reynosa told him

that her daughter’s “pants were pulled down and her shirt was

pulled up.” B.R. told Officer Henderson that on another

occasion he had seen Defendant crouched down in front of S.D. in

her closet and that S.D.’s pants were down.

Investigator Larry Jenkins (“Investigator Jenkins”) of the

Graham County Sheriff’s Department testified he also visited the

Reynosa residence on the evening of 2 December 2012 and

collected evidence from the house. Investigator Jenkins

interviewed Defendant at the Sheriff’s Department later that

evening and said Defendant denied that he molested or engaged

in sexual activity with S.D.

The next morning, Chief Investigator Milton Teasdale

interviewed Defendant at the Sheriff’s Department. He said that

Defendant initially denied engaging in any sexual activity with -4- S.D., but later admitted that he “licked” her vaginal area.

Defendant also admitted he engaged in sexual activity with S.D.

more than once.

At trial, Defendant testified that he did nothing sexual

with S.D. on 2 December 2012. He also stated he was coerced

into confessing by the law enforcement officers.

During the charge conference, the State requested that the

trial court instruct the jury regarding contradictory or

conflicting statements of Defendant. The trial court initially

denied the request but changed its mind the next morning.

Defendant objected to submission of the instruction.

The trial court subsequently instructed the jury as

follows:

Members of the jury, there has – the State contends and . . . [D]efendant denies that he has made contradictory statements, conflicting statements about what allegedly occurred. If you find that he made such statements they may be considered by you as a circumstance tending to reflect the mental process of a person possessed by a guilty conscious [sic], seeking to divert suspicion or to exculpate him. And you should consider that evidence along with all the other believable evidence that you deem to be believable to the extent of beyond a reasonable doubt in accordance with what the State must prove, . . . [D]efendant having no burden to prove anything, that is, the other believable evidence to that extent in this case. -5-

On the other hand, if you find . . . [D]efendant made such statements, they don’t create a presumption of guilt. Such evidence standing alone is not sufficient, is not sufficient to establish guilt.

Defendant argues there are two problems with the

instruction: (1) it placed undue emphasis upon Defendant’s

confession; and (2) it was not supported by the evidence because

Defendant did not deny making conflicting statements. We

disagree.

The instruction given by the trial court is consistent with

an instruction approved by our Supreme Court in State v. Walker,

332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992). A trial court

properly gives the instruction concerning contradictory

statements when the defendant’s own statements contradict each

other or flatly contradict the evidence. Id. at 538, 422 S.E.2d

at 726. In this case, Defendant gave contradictory statements

to law enforcement officers. Defendant’s trial testimony also

contradicted what he told law enforcement officers in his

confession.

No error.

Judges ELMORE and DAVIS concur.

Report per Rule 30(e).