An unpublished opinion of the North Carolina Court of Appeals does not constitute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