An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA 13

- 1160 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Graham County No s . 12 CRS 360

- 61; 50484 ERNESTO REYNOSA

Appeal by D efendant 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 M ontgomery for D efendant

- A ppellant.

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

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contradicto ry or conflic ting 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
b efore she married D efendant. 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, D efendant had S.D. lie on her mother’s bed. Defendant pulled down S.D.’s pants and licked her private parts between her legs. De fendant 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, h e heard his mother screaming at D efendant.
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 D efendant
and S.D. in S.D.’s closet. His sister’s “ pants were down a- 3

-

l ittle ways” and D efendant 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 D efendant “ 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 shir t was pulled up. ” B.R. told Officer Henderson that on another
occasion he had seen D efendant 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 Depar tment testified he also visited the Reynosa residence on the evening of 2 December 2012 and
collected evidence from the house

. Investigator Jenkins
interviewed D efendant at the S heriff’s D epartment 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 D efendant at the S heriff’s D epartment. He said that Defendant initially denied engaging in any sexual activity with- 4

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S.D. , b ut 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
int o 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 D efendant. The trial court initially denied the request but changed its mind the next morning. Defendant objected to submission of the instruction.

T he 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 possess ed 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

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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 D efendant’s confession; and (2) it wa s 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 inst ruction concerning contradictory
statements when the defendant’s own statements contradict each other or flatly contradict the evidence. Id. a t 538, 422 S.E.2d

at 726. In this case , D efendant gave contradictory statements
to law enforcement officers. De fendant’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).