State v. Reynosa ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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.
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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).