COURT OF APPEALS OF VIRGINIA

Present: Judges Athey, Chaney and Lorish

Argued at Richmond, Virginia

EMER GONZALEZ-ESTRADA, SOMETIMES KNOWN AS

EMER GONZALEZ ESTRADA

MEMORANDUM OPINION* BY

v. Record No. 0033-22-2 JUDGE VERNIDA R. CHANEY

MAY 30, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Clarence N. Jenkins, Jr., Judge

Aaron C. Forstie, Senior Assistant Public Defender, for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (Jason S. 

Miyares, Attorney General, on brief), for appellee.

Following a jury trial in the Circuit Court of the City of Richmond (circuit court), Emer 

Gonzalez Estrada (Estrada) appeals three felony convictions for aggravated sexual battery in 

violation of Code § 18.2-67.3 and three felony convictions for taking indecent liberties with a 

child in violation of Code § 18.2-370. Estrada contends on appeal that the circuit court erred in 

(1) denying his motion to suppress statements obtained in violation of his Miranda v. Arizona,

384 U.S. 436 (1996), rights, (2) denying his motion in limine to exclude irrelevant and unduly 

prejudicial photographs of the complaining witnesses, and (3) denying his motion to strike based 

on the inherent unreliability of the Commonwealth’s evidence. Finding no error in the circuit 

court’s judgment, this Court affirms Estrada’s convictions.

* This opinion is not designated for publication. See Code § 17.1-413.

UNPUBLISHED
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BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the 

light most favorable to the Commonwealth, the prevailing party” in the circuit court. McGowan v. 

Commonwealth, 72 Va. App. 513, 516 (2020) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 

(2018)). This Court “regard[s] as true all credible evidence favorable to the Commonwealth and all 

inferences that may reasonably be drawn from that evidence.” Id. (citing Gerald, 295 Va. at 473).

A. Estrada’s Sexual Abuse of His Children

For approximately eight years, from around 2007 to 2015, Estrada frequently sexually 

abused his daughter, L.G. For approximately seven years, from around 2011 to 2018, Estrada 

frequently sexually abused his son, O.T.1 O.T. is a year older than L.G., and they were born to 

two different mothers. O.T. and L.G. resided in separate residences with their mothers and had 

overnight visits with Estrada on weekends.2

Estrada sexually abused L.G. from the time she was 5 or 6 years old until she was around 

12, when she refused to visit Estrada’s home. The sexual abuse of L.G. included manually 

touching each other’s genitals on multiple occasions.

From the time O.T. was 10 or 11 years old until he was 17, Estrada sexually abused him 

many times—probably more than a hundred times. The sexual abuse of O.T. included multiple 

acts of oral and anal sex. At times, Estrada sexually abused O.T. and L.G. when they were all 

together in the same bed or in the shower.

1 To protect the victims’ privacy, they are identified by initials throughout this opinion.

2 For a brief period when O.T. was a teenager, O.T. and his mother resided in the same 

home with Estrada.
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B. The Victims’ Disclosures of Sexual Abuse

In January 2019, L.G. disclosed to her mother that Estrada had sexually abused her and 

O.T. The next day, L.G. called O.T. and told him that she planned to tell his mother about

Estrada’s sexual abuse because she did not want their younger sister to be sexually abused by 

Estrada. O.T. asked L.G. not to tell his mother that Estrada had sexually abused him because he 

feared she would “break down and cry” or be angry with him. When O.T. overheard L.G.’s 

mother telling his mother about Estrada’s sexual abuse of L.G., O.T. cried and told his mother 

that Estrada had sexually abused him too. Subsequently, O.T. and L.G., accompanied by their 

mothers, went to the police station and reported Estrada’s sexual abuse.

In February 2019, O.T. and L.G. were interviewed at the Henrico Child Advocacy Center 

(CAC) by Stephanie Davis, an expert in the disclosure of child sexual abuse. The CAC works in 

conjunction with the Commonwealth’s Attorney’s Office, law enforcement, child protective 

services, and others in a multidisciplinary team. After L.G.’s first CAC interview, L.G. told her

mother that she did not disclose that Estrada once attempted to touch her vagina with his penis. 

L.G.’s mother called and informed the prosecutor, and the prosecutor advised that L.G. should 

return to the CAC for a second interview to inform them about the incident. At her mother’s 

urging, L.G. arranged a second interview at the CAC in July 2019, when she reported the 

previously undisclosed incident of sexual abuse by Estrada.

Elsa Estrada, Estrada’s mother and the grandmother of O.T. and L.G., testified that she 

had a good relationship with O.T. and L.G. prior to the allegations of sexual abuse, and they 

never told her about any inappropriate interactions with Estrada. She also testified that she never 

heard or saw anything inappropriate between Estrada and his children, although her bedroom 

shared a wall with Estrada’s bedroom, and she could hear from her bedroom what was happening 
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in Estrada’s room. She further testified that if she thought Estrada had sexually abused his 

children, she would have immediately kicked him out of the house and called the police.

When O.T. testified at trial, he made contradictory statements about whether he had ever 

performed oral sex on Estrada. O.T. acknowledged that some of his testimony was inconsistent 

with statements he made during his interviews with police, prosecutors, and the CAC. On 

re-direct examination, O.T. explained that he told a police officer that Estrada did not have oral 

sex with him because the officer had questioned him in a hallway with no privacy and in the 

presence of his mother, whom he didn’t want to upset with the information. O.T. further testified 

that he kept Estrada’s sexual abuse a secret for years because he was afraid that his mother might 

get angry at him and kick him out of the house.

Ms. Davis from the CAC, testifying as an expert in the disclosure of child sexual abuse, 

testified that “[i]t is very common for children to delay disclosure” of sexual abuse. And there is 

usually a longer delay in disclosures of sexual abuse within a family. Ms. Davis further testified 

that the majority of the children interviewed at the Henrico CAC and other child advocacy 

centers around the United States do not promptly disclose sexual abuse. Additionally, Ms. Davis

confirmed that an authoritative article on the disclosure of child sexual abuse reported that “there 

is a consensus in the research literature that most people who experience sexual abuse in 

childhood do not disclose until adulthood.” 

C. Estrada’s Statements to Police

After O.T. and L.G. were interviewed at CAC, Estrada was arrested and interrogated by 

Detective Gerald Brissette at Richmond Police headquarters. Before the interrogation, O.T., 

L.G., and their mothers told Detective Brissette that Estrada spoke both Spanish and English.

At the beginning of the interrogation, Detective Brissette read Estrada his Miranda rights:

I am Detective Gerald Brissette of the Richmond Police 

Department. 
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1. You have an absolute right to remain silent and make no 

statement to me.

2. Any statement you make can be used as evidence against you.

3. You have the right to the presence of an attorney at this and

any future interviews the police might have with you. If you 

are unable to hire an attorney, the court will appoint one for 

you.

I understand that I am being interviewed regarding the commission 

of a felony and or misdemeanor Crime. I understand these rights, 

and I wish to waive them and make a statement.

After the detective read aloud the statement of each Miranda right on the waiver form, he asked 

Estrada if he understood and Estrada answered, “Yes” or nodded yes. When Detective Brissette 

handed Estrada the Miranda waiver form, Estrada asked where he should sign the form and then 

immediately signed it. Estrada never asked for an attorney.

During the police interrogation, Estrada never requested a Spanish interpreter and never 

requested that the interrogation be conducted in Spanish. Detective Brissette testified that he 

experienced no problems communicating with Estrada in English.

At the time of the interrogation, Estrada was 42 years old. Estrada told Detective 

Brissette that he had lived in the United States since 1994. During the interrogation, Estrada 

used English to spell his name, provide his date of birth, state his street address, affirm that he 

knew the mothers of O.T. and L.G., and acknowledge that O.T. and L.G. were his children.

During the interrogation, Estrada admitted that sometimes he slept in the same bed with 

his children, but he initially denied ever inappropriately touching O.T. and L.G. Subsequently, 

he admitted to Detective Brissette that he may have inappropriately touched them when he was 

drunk or when they were playing. When Detective Brissette became “concerned things may be 

lost in translation,” he arranged for Detective Jose Cartagena, who is fluent in Spanish, to join 
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and participate in the interrogation. Detective Cartagena did not advise Estrada of his Miranda

rights in Spanish.

After about an hour of interrogation, Estrada admitted in Spanish that he had touched his 

children “[w]here [he] shouldn’t have touched them.” Immediately thereafter, in response to 

Detective Brissette’s inquiry in English, Estrada admitted touching O.T.’s penis. When 

Detective Cartagena asked when this touching occurred, Estrada eventually answered, “I can’t 

give you an exact date. It was maybe 2014.” After Detective Cartagena asked Estrada to tell 

him what else happened, Estrada replied, “Just one touch, and that’s all, that’s all, that’s all.”

D. Motion to Suppress Statements to Detectives

In July 2020, a hearing was held on Estrada’s motion to suppress his statements to 

Detectives Brissette and Cartagena. The Commonwealth stipulated that Estrada was in custody 

during the interrogation. Estrada argued that the Commonwealth could not prove that Estrada 

knowingly and voluntarily waived his Miranda rights given Estrada’s limited English 

competence and lack of understanding of the American criminal justice system. The 

Commonwealth argued that Estrada was sufficiently proficient in English to understand the 

Miranda warnings and that he knowingly and voluntarily waived his Miranda rights. The 

Commonwealth argued that Estrada demonstrated that he had no trouble understanding English 

when he answered Detective Brissette’s questions during the interrogation.

Estrada testified that he was born in Guatemala and his family spoke Spanish at home. 

He went to school through the sixth grade, and all his classes were conducted in Spanish. He

never had any formal English instruction. He can read and write in Spanish, but he can only read 

English “a little bit,” and he is unable to write in English. He moved to the United States in 

1994. At the time of the suppression hearing, he had lived in the U.S. for 26 years. He resided 

in Virginia with his mother and siblings, and they all spoke Spanish at home. His employers 
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have been primarily Spanish-speaking, and he usually speaks in Spanish with his co-workers. As 

a construction worker and HVAC worker, he does not interact with the public at work. When 

shopping, he speaks in English when necessary. Estrada also testified that O.T. and L.G. spoke 

to him in “Spanglish . . . like half Spanish and half English.”

Estrada further testified that before he was arrested in this case, he had never heard the 

term “Miranda warnings” and never had Miranda rights read to him, although he had been 

arrested twice. Before the February 2019 interrogation, he had never been questioned in a police 

interrogation room. At the time of the interrogation, he did not know the meaning of the English 

words “appoint” and “waive.” Estrada also testified that he signed the Miranda rights waiver 

form without reading it because he was nervous and he “just wanted to sign the paper and get out 

of this.” On cross-examination, Estrada acknowledged that he had conversed with Detective 

Brissette in English for almost an hour.

The circuit court found that Estrada acknowledged his understanding of each Miranda

right that the detective read to him when he “either nodded his head or said, ‘Yes’” when asked 

whether he understood. The circuit court concluded that Estrada’s responses indicated that he 

understood his Miranda rights before the detectives questioned him.

After viewing the video of Estrada’s conversation with Detective Brissette in English, the 

circuit court made “the factual determination that [Estrada] clearly understood the English 

language” and “had the requisite level of comprehension to validly waive his Miranda rights.” 

The circuit court found that during the interrogation, “Estrada was speaking in sentence form. 

He was not speaking in broken English, but he was putting his sentence structures together very 

fluently as if he had no problems at all understanding the English language.” Based on the 

totality of the circumstances, the circuit court found that Estrada knowingly and voluntarily 

waived his Miranda rights “with a full awareness of both the nature of the right being abandoned 
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and the consequences of the decision to abandon.” Accordingly, the circuit court denied 

Estrada’s motion to suppress his statements to the detectives.

E. Motion to Exclude Photos of the Victims

Estrada moved in limine to exclude photos depicting O.T. as a teenager and depicting 

L.G. at ages ranging from 6 to 11. At the time of trial, O.T. was age 20 and L.G. was 19. 

Estrada objected that the photos had no probative value and were not relevant. Estrada further 

argued that “balance[ing] under Rule 403 the probative value against any unfair prejudice[,] . . . 

the photos of — especially [L.G.] as a young girl are inflammatory and don’t really add anything 

to whether or not these offenses occurred.”

The Commonwealth argued that it was required to prove, as an element of the charged 

offenses, the age of each complaining witness at the time of the offense. The Commonwealth 

proffered that the photos were relevant because the complaining witnesses were younger at the 

time of the alleged offenses and the photos depicted them at those ages.

The circuit court found that the photos were relevant and denied Estrada’s motion. Two 

photos admitted into evidence depicted O.T. at ages 16 and 15. Four photos admitted into 

evidence depicted L.G. at approximate ages 6, 7, 10, and 11.

F. Motions to Strike

After the Commonwealth rested its case, Estrada moved to strike the evidence and argued 

that the complaining witnesses’ testimony was inherently incredible, impeached, and 

uncorroborated. The Commonwealth responded that corroboration is not required and that the 

credibility issue was a question for the jury. The Commonwealth also argued that O.T.’s 

testimony and L.G.’s testimony were mutually corroborating and described incidents that they 

both witnessed. The circuit court ruled that the Commonwealth established a prima facie case on 
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all charges and denied the motion to strike. The court also ruled that the issue of witness 

credibility was a question for the jury.

After the defense rested, Estrada renewed his motion to strike based on his previous 

arguments. Additionally, Estrada argued that his motion to strike should be granted based on 

(i) his testimony denying the accusations and (ii) his mother’s testimony that she never saw or 

heard anything that would lead her to believe the children’s allegations of sexual abuse. The 

circuit court ruled that the issues raised by Estrada were jury issues and denied the renewed 

motion to strike. This appeal followed.

ANALYSIS

A. Motion to Suppress Statements to Detectives

Estrada contends that the circuit court erred in denying his motion to suppress his 

statements to detectives during custodial interrogation because his statements were elicited in 

violation of his rights under Miranda. As a Spanish-speaking immigrant from Guatemala with a 

sixth-grade education and no formal instruction in English, Estrada claims that he did not 

understand the Miranda warnings that the detective read to him in English. Estrada argues, 

therefore, that he did not make a knowing and voluntary waiver of his Miranda rights.

The Commonwealth “bears the burden of showing a knowing and intelligent waiver” of 

Miranda rights. Angel v. Commonwealth, 281 Va. 248, 257-58 (2011). “The determination of 

whether the [Miranda] waiver was made knowingly and intelligently is a question of fact that 

will not be set aside on appeal unless plainly wrong.” Id. at 258 (citing Jackson v. 

Commonwealth, 266 Va. 423, 432 (2003)). “[W]hether a [waiver] was voluntary is a ‘legal 

rather than factual question.’” Tirado v. Commonwealth, 296 Va. 15, 28 (2018) (quoting Gray v. 

Commonwealth, 233 Va. 313, 324 (1987)). We review legal issues de novo. See Calokoh v. 

Commonwealth, 76 Va. App. 717, 728 (2023). In reviewing the circuit court’s denial of 
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Estrada’s motion to suppress, we consider the evidence admitted at trial in addition to the 

evidence admitted in the suppression hearing. See Tirado, 296 Va. at 24-25. Additionally, we

“view the evidence in the light most favorable to the prevailing party, here the Commonwealth, 

together with all inferences that may reasonably be drawn from it.” Spinner v. Commonwealth, 

297 Va. 384, 392 (2019).

A Miranda waiver is a valid waiver only if it is “made with a full awareness of both the 

nature of the right being abandoned and the consequences of the decision to abandon it.” Tirado, 

296 Va. at 28 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “Only if the totality of the 

circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite 

level of comprehension may a court properly conclude that the Miranda rights have been 

waived.” Id. (quoting Burbine, 475 U.S. at 421). In determining whether a defendant 

comprehended the Miranda warnings, some of the circumstances we consider are “the 

defendant’s age, education, language, alienage, experience with police, and whether the 

defendant stated that he understood his rights as read to him.” Id. at 29.

Estrada’s contention that he did not make a valid waiver of his Miranda rights hinges on 

his claim that he did not comprehend the Miranda warnings due to his limited understanding of

English. This Court finds that the evidence supports the circuit court’s factual findings that 

Estrada “clearly understood the English language” and had the requisite level of comprehension 

to validly waive his Miranda rights. The audio-video recording of the police interrogation 

supports the circuit court’s finding that Estrada “either nodded his head or said, ‘Yes’” after 

Detective Brissette read each Miranda warning to him and asked whether he understood. The 

recording and transcript of the interrogation also support the circuit court’s findings that when 

speaking in English, “Estrada was speaking in sentence form. He was not speaking in broken 

English, but he was putting his sentence structures together very fluently as if he had no 
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problems at all understanding the English language.” Additionally, O.T., L.G., and their mothers 

told Detective Brissette that Estrada speaks both English and Spanish, providing more 

evidentiary support for the circuit court’s factual finding that Estrada comprehended and validly 

waived his Miranda rights. Because the circuit court’s finding of a knowing and intelligent 

Miranda waiver is not plainly wrong considering the totality of the circumstances, this Court 

holds that the circuit court did not err in denying Estrada’s motion to suppress his statements to 

the detectives.

B. Motion to Exclude Photos of the Victims

Estrada contends that the circuit court erred in denying his motion in limine to exclude six 

photos depicting O.T. and L.G. as children because these photos were irrelevant and unduly 

prejudicial. Assuming without deciding that the circuit erred in admitting the contested photos into 

evidence, this Court holds that any such error was harmless. See Commonwealth v. White, 293 Va.

411, 419 (2017) (basing decision on harmless error analysis as the best and narrowest ground 

available, in accord with the doctrine of judicial restraint).

“An appellate court reviews a decision to admit or exclude evidence where no federal 

constitutional issue was raised under the standard for non-constitutional harmless error provided in 

Code § 8.01-678.” Haas v. Commonwealth, 299 Va. 465, 467 (2021). Under this standard, an 

alleged error is harmless if it did not substantially influence the jury’s verdict. See id. Accordingly, 

non-constitutional error is harmless “if other evidence of guilt is so overwhelming and the error so 

insignificant by comparison that the error could not have affected the verdict . . . .” Salahuddin v. 

Commonwealth, 67 Va. App. 190, 212 (2017) (internal quotation marks omitted) (quoting McLean 

v. Commonwealth, 32 Va. App. 200, 211 (2000)).

The testimony of O.T. and L.G. provided overwhelming evidence that Estrada sexually 

abused them as charged in the indictments. By comparison, the erroneous admission of the 
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contested photos is so insignificant that such error could not have affected the verdict. The 

contested photos of O.T. and L.G. depict them as children in common settings and engaged in 

“normal child activities.” Op. Br. 17. These photos did not inculpate Estrada and were not likely to 

inflame the jurors’ passions and influence them to base their verdicts on considerations beyond the 

evidence. Thus, the admission of the contested photos could not have substantially influenced the 

jury’s findings of guilt. Therefore, assuming that the contested photos were erroneously admitted 

into evidence, such error was harmless.

C. Motion to Strike

Estrada contends that the evidence is insufficient to sustain the convictions because the 

complaining witnesses’ testimony was inherently incredible given the years-long delay in reporting 

the allegations, the inconsistencies in their testimony, and their prior inconsistent statements. When 

an appellant challenges the sufficiency of the evidence to support a criminal conviction, this Court 

“reviews the evidence in the light most favorable to the Commonwealth, as the prevailing party at 

trial, and considers all inferences fairly deducible from that evidence.” Commonwealth v. Herring, 

288 Va. 59, 66 (2014) (quoting Allen v. Commonwealth, 287 Va. 68, 72 (2014)). At issue on 

appeal is “whether any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Sullivan 

v. Commonwealth, 280 Va. 672, 676 (2010)). The circuit court’s judgment will be affirmed 

“unless it is plainly wrong or without evidence to support it.” Sarka v. Commonwealth, 73 

Va. App. 56, 62 (2021); see also Code § 8.01-680.

On appellate review, this Court defers to the fact-finder’s credibility determinations unless 

the witness’s testimony is “inherently incredible, or so contrary to human experience as to render it 

unworthy of belief.” Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019) (quoting Johnson v. 

Commonwealth, 58 Va. App. 303, 315 (2011)). “A legal determination that a witness is inherently 
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incredible is very different from the mere identification of inconsistencies in a witness’[s]

testimony or statements. Testimony may be contradictory or contain inconsistencies without 

rising to the level of being inherently incredible as a matter of law.” Id. (citing Juniper v. 

Commonwealth, 271 Va. 362, 415 (2006)). “Determining the credibility of witnesses who give 

conflicting accounts is within the exclusive province of the jury, which has the unique opportunity 

to observe the demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 300, 

304 (1993).

The testimonial evidence supporting Estrada’s convictions was not inherently incredible 

despite the complaining witnesses’ delay in disclosing the sexual abuse. According to the expert 

testimony, delays in reporting childhood sexual abuse are very common, and there is usually a 

longer delay in disclosures of sexual abuse within a family. Additionally, the expert in the 

disclosure of child sexual abuse testified that most people who experience sexual abuse in 

childhood do not disclose the abuse until adulthood. Therefore, the fact that O.T. and L.G. were 

in their late teens when they reported their experiences of childhood sexual abuse does not render 

their testimony inherently incredible. See Juniper, 271 Va. at 415 (holding that a witness’s delay 

in reporting knowledge of a case is “appropriately weighed as part of the entire issue of witness 

credibility, which is left to the jury to determine”).

The inconsistencies in the complaining witnesses’ testimony and prior statements did not 

render their testimony inherently incredible. O.T. made some contradictory statements during 

his trial testimony, and he also acknowledged that some of his testimony was inconsistent with 

statements he made during his interviews with police, prosecutors, and the CAC. Additionally, 

there were some inconsistencies between O.T.’s and L.G.’s testimony about their experiences of 

sexual abuse by Estrada. However, their testimony was not “wholly uncorroborated” and

“replete with contradictions and inconsistencies” as in Willis v. Commonwealth, 218 Va. 560, 
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563-64 (1977) (reversing rape conviction where complaining witness’s testimony was inherently 

incredible as a matter of law). In large part, O.T. and L.G. corroborated each other’s testimony 

about Estrada’s frequent sexual abuse spanning years of their childhood. And O.T. explained 

that he omitted details of Estrada’s sexual abuse from his original police report because his 

mother was present, and he did not want to upset her with the information. Here, the 

inconsistencies in the complaining witnesses’ testimony were appropriately weighed and 

“resolved by the fact finder,” as part of the overall credibility determination. Kelley, 69 Va. App. 

at 626 (quoting Towler v. Commonwealth, 59 Va. App. 284, 292 (2011)). The jury observed the 

demeanor of O.T. and L.G. as they testified, and the jury credited their testimony in finding 

Estrada guilty of sexual abuse as charged. Because this testimony was not inherently incredible, 

this Court will not disturb the jury’s verdict.

CONCLUSION

The circuit court did not err in denying Estrada’s motions to suppress his statements to 

detectives, to exclude photos depicting the complaining witnesses as children, and to strike the 

evidence based on legal insufficiency. Therefore, this Court affirms Estrada’s convictions.

Affirmed.