STATE v. ZINKAND,

STATE OF NORTH CAROLINA

v. Macon County
Nos. 06 CRS 50610,
JOHN JOSEPH ZINKAND 06 CRS 50612, 06 CRS 50617

Appeal by defendant from judgment entered 17 November 2006 by
Judge C. Preston Cornelius in Macon County Superior Court. Heard
in the Court of Appeals 14 April 2008.

Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.

Mark Montgomery for defendant.

BRYANT, Judge.

Defendant John Zinkand appeals from three counts of statutory
sex offense, two counts of crime against nature, and one count of
taking indecent liberties with a child.
Evidence presented at trial tended to show that Thomas

(See footnote 1)

, at
the time of trial a boy of fifteen years, and his mother lived with
defendant in 2003. Defendant and Thomas’s mother married that
year. Defendant began molesting Thomas shortly after defendant
married Thomas’s mother.
Thomas testified that he and defendant engaged in acts of
kissing, oral sex, anal sex, and analingus, and these acts wouldoccur in Thomas’s home – in the living room or in a bedroom. In
exchange for sex, Thomas received Yugioh game cards, money, CD’s,
and promises to fix-up a car for Thomas to drive. Thomas also
testified that he observed defendant engage in oral and vaginal sex
with a dog. On multiple occasions, defendant also compelled Thomas
to engage in sex with a dog. On 20 March 2006, Thomas disclosed to
his mother that defendant was molesting him; that day Thomas’s
mother contacted the authorities.
Thomas’s mother testified that both she and her son were being
emotionally and physically abused while they lived with defendant,
but at the time, she was unaware of any sexual relations between
defendant and her son. Prior to Thomas’s disclosure about
defendant’s sex acts, Thomas’s mother enrolled him in therapy due
to outbursts of anger.
When asked if she ever observed anything odd during the course
of her marriage, Thomas’s mother testified that once she caught
defendant in their basement having sex with a goat. The family had
several pets – at one point several goats and five dogs. She
testified that she was repulsed but she still loved defendant and
simply didn’t know what to do. Later, approximately a month before
Thomas revealed defendant’s conduct to her, Thomas’s mother
observed defendant in their living room having sex with a
neighbor’s dog. Thomas’s mother testified that she was just in
shock – she didn’t know what to do, what to say, or where to go.
But, she did not think defendant would harm Thomas. Thomas’s mother testified that the day Thomas confided in her,
defendant was not at home and Thomas stayed home from school.
Thomas did not go into detail about defendant’s acts but related
that defendant had molested him. Thomas’s mother asked him to
describe defendant’s anatomy, and Thomas described defendant’s
anatomy “exactly.” At that point, Thomas’s mother contacted the
authorities.
Detective Judy Bradford of the Macon County Sheriff’s Office,
Juvenile Investigations Unit interviewed Thomas. Det. Bradford
testified that when Thomas became comfortable, he disclosed that he
and defendant were engaging in sexual acts, such as: sodomy, oral
sex, and sex with animals. On one occasion, Thomas’s mother took
him to the hospital due to the abnormal swelling of his penis.
Thomas informed Det. Bradford and later testified that his penis
was swollen due to defendant’s handling, but at the time, he did
not tell hospital staff the cause of injury.
Det. Bradford took Thomas to be examined by Dr. Jennifer
Brown, a physician and founder of Kid’s Place in Macon County,
North Carolina, a Child Advocacy Center where children suspected of
being abused or neglected can be examined or receive treatment.
Dr. Brown testified as an expert in the field of pediatrics. Dr.
Brown noted that Thomas’s ability to communicate, specifically his
sentence structure, was more akin to that of a younger child.
During her interview, Dr. Brown questioned Thomas about his
relationship with defendant at which point Thomas tended to get
“very nervous and kind of embarrassed.” Dr. Brown asked Thomaswhether defendant “touch[ed] [him] in some way [Thomas] didn’t like
. . ?” Dr. Brown testified that Thomas’s responses included
phrases such as, “my d—, he licked it”; “stuck his d— up my
butt”; and “he made me do a dog.” Dr. Brown testified that “do it”
meant having intercourse with the dog. For purposes of
corroboration, Dr. Brown testified to Thomas’s statements which
included an occasion when Thomas’s mother walked in on defendant in
the basement having sex with a goat.
Dr. Brown testified that Thomas gave an explicit history of
sexualized contact but his physical exam, though consistent with
that history, yielded nothing specifically abnormal. Dr. Brown
also stated that ninety-eight percent of boys who have been
sexually abused will have no physical findings whatsoever. “A
child who has had multiple assaults over a long period of time
tends to have less ability to recall details about a specific
assault than the child who has had it one time, because it happened
so many times that the details begin to run together . . . .”
“[I]t becomes normalized.” Dr. Brown testified that Thomas stated
the molestation occurred over two and a half years. “When they do
disclose, they tend to give only a tiny incident or they tend to
wait years, and there’s something that pushes them over that makes
them willing to finally disclose.” “[C]hildren have a very
difficult time overriding the inherent authority that an adult has
in their lives.”
Keith Delancey, a director and counselor at Kid’s Reach in
Jacksonville, N.C., who had been working with Thomas sinceSeptember 2005 on another issue and then the issue of sex abuse,
also testified about his interaction with Thomas. Delancey
testified that Thomas indicated the abuse occurred over a period of
two and a half years and that it happened a lot. Delancey
testified that according to Thomas these events would occur when
Thomas’s mother was asleep or in the shower. Delancey stated
Thomas was bribed with CD’s, money, and Yugioh cards. Delancey
also testified to Thomas’s statements that he had been asked to
have sexual contact with dogs.
Another juvenile, Kathy

(See footnote 2)

– who at the time of trial was a
seventeen year old girl, testified that she had known defendant
from about the time she was two. Defendant had dated Kathy’s
mother, and from the time Kathy was three or four, defendant lived
with her and her mother. Kathy testified that when she was about
five, she would come home from school and only defendant would be
at home waiting for her. Kathy testified that defendant would take
her into a bedroom, remove her underwear, and rub her “private
parts.” Defendant would kiss her and lick “[Kathy’s] vagina and .
. . butt.” Kathy testified that this occurred many times, at
different times of day, in a bedroom or in the living room.
Kathy testified that defendant attempted to have intercourse
with her but was unsuccessful. So, defendant resorted to “acting
like he was having sex” with her – instructing her to cross her
legs while defendant placed his penis between them. Kathy
testified that on one occasion defendant was dog sitting for arelative. Kathy testified that defendant pulled her underwear down
and “began to lick [her] privates. And he called the dog over and
had the dog lick [Kathy], too.” At the time, Kathy was seven.
Kathy testified that once when defendant was committing a sex act
upon her defendant’s mother walked in. Kathy testified that
defendant said, “Get out,” and his mother left.
Kathy testified that defendant molested her from the time she
was five until she was almost eleven. It ended only when Kathy’s
mother, Kathy, and Kathy’s little sister ran away in the middle of
the night.
Defendant’s mother, Eva Zinkand Sundeck (Sundeck), testified
on defendant’s behalf. On cross-examination, Sundeck denied
observing any sexual impropriety by her son. About the incident to
which Kathy testified – in which Sundeck walked in on defendant
molesting Kathy – Sundeck testified that, at the time, she was
living with defendant, Kathy, and Kathy’s mother and she “heard a
noise like the [baby’s] crib wheels moving. . . . [She] got up to
see if the baby was moving the crib, and . . . [defendant] came,
said ‘Don’t worry, I’ll pat her on the back.’ And that was that.
[Sundeck] went back to sleep . . . .” On cross examination,
Sundeck acknowledged that Kathy told her she had been raped.
The State also questioned Sundeck regarding a communication
she allegedly made to her youngest son’s wife informing her that
when defendant was fourteen he molested his five year old sister.
Though Sundeck did not recall informing her daughter-in-law about
the molestation of Sundeck’s daughter, Sundeck testified that backin 1979 or 1980 she had taken her five year old daughter to a
hospital where it was determined the daughter had contracted
gonorrhea. Sundeck’s daughter was taken to a rape center, and
Sundeck testified that her daughter identified defendant as the
person who molested her.
Sundeck’s daughter, defendant’s sister, Michelle

(See footnote 3)

, also
testified. On cross-examination, Michelle testified that when she
was five and a half she was molested by defendant, but a court
found defendant not guilty. Michelle testified that defendant
fondled her. Michelle testified that she told her mother about
being molested.
A jury found defendant guilty of three counts of statutory sex
offense against a victim who was thirteen, fourteen or fifteen
years old; taking indecent liberties with a child; and two counts
of crime against nature. Defendant was sentenced to several
consecutive active terms of imprisonment followed by an additional
probationary sentence to begin at the expiration of the active
sentences. Based on the State’s oral motion made at the time of
sentencing, the trial court also found and ordered that defendant
be classified as a sexually violent predator. Defendant appealed.
_______________________________________
On appeal, defendant questions whether the trial court erred
by (I) overruling defendant’s objection to allow testimony
regarding acts defendant allegedly committed over twenty yearsearlier and (II) finding that defendant is a sexually violent
predator.
I
Defendant first questions whether the trial court erred in
overruling his objection to the testimony of several witnesses who
testified to an alleged act of sexual misconduct between defendant
and his sister, Michelle, occurring in 1979 or 1980. Defendant
argues this testimony was inadmissible because he was acquitted of
the charges stemming from the alleged molestation, and even if not,
the conduct for which he was accused occurred twenty years ago and
was too remote in time to be relevant. Defendant argues the
introduction of this evidence was highly prejudicial and amounts to
reversible error.
We first note that defendant called and examined his sister as
a direct witness. The evidence of molestation of his sister was
elicited on cross-examination in a proper attempt to test the
credibility of defendant’s witness. Moreover, when defendant
requested that the trial court give a Rule 404(b) instruction
regarding Michelle’s testimony, the trial court did so.
Additionally, in light of the overwhelming evidence, as
detailed earlier, of defendant’s guilt, defendant cannot show
prejudice in the trial court’s admission of the challenged evidence
as it would have no probable impact on the jury’s decision. See

State v. Locklear, 172 N.C. App. 249, 260, 616 S.E.2d 334, 341-42
(2005)

(citation omitted) (“we find there would be no probable
impact on the jury’s decision in light of other overwhelmingevidence of defendant’s guilt”). As detailed earlier in the
opinion, the State presented strong direct evidence of defendant’s
guilt as to the charges of statutory sex offense against a victim
who was thirteen, fourteen or fifteen years old, crimes against
nature, and taking indecent liberties with a child. Accordingly,
defendant’s assignment of error is overruled.
II
Defendant next argues, and the State concedes, the trial court
erred by ruling that defendant is a sexually violent predator.
Under North Carolina General Statutes, Article 27A, Sex
Offender and Public Protection Registration Programs, section 14-
208.6A, lifetime registration requirements for criminal offenders,
our General Assembly states its objective to “establish a more
stringent set of registration requirements for recidivists, persons
who commit aggravated offenses, and for a subclass of highly
dangerous sex offenders who are determined by a sentencing court
with the assistance of a board of experts to be sexually violent
predators.” N.C. Gen. Stat. § 14-208.6A (2007). To accomplish
that objective, our General Assembly established a registration
program for sexually violent predators. See N.C. Gen. Stat. § 14-
208.6A (2007).
Under North Carolina General Statute section 14-208.20, the
classification of a sexually violent predator requires the district
attorney to file notice of his or her intent to seek the
classification within the time provided for pretrial motions underG.S. § 15A-952 or later with the allowance of the trial court for
good cause shown. N.C. Gen. Stat. § 14-208.20(a) (2007).
Prior to sentencing a person as a sexually
violent predator, the court shall order a
presentence investigation in accordance with
G.S. 15A-1332(c). However, the study of the
defendant and whether the defendant is a
sexually violent predator shall be conducted
by a board of experts selected by the
Department of Correction.

N.C. Gen. Stat. § 14-208.20(b) (2007). After the board of experts
has conducted a study and generates a presentence report,
the court shall hold a sentencing hearing in
accordance with G.S. 15A-1334. At the
sentencing hearing, the court shall, after
taking the presentencing report under
advisement, make written findings as to
whether the defendant is classified as a
sexually violent predator and the basis for
the court’s findings.

N.C. Gen. Stat. § 14-208.20(c) (2007).
Here, there is no indication the State gave notice of its
intent to classify defendant as a sexually violent predator, no
indication there was an investigation by a board of experts, and no
written findings by the trial court as to why defendant was to be
classified as a sexually violent predator or a basis for the
findings. Accordingly, the trial court’s ruling which classifies
defendant as a sexually violent predator is vacated and the matter
is remanded to the trial court for the entry of orders in
accordance with this opinion.
No error in part; vacated in part; and remanded.
MARTIN, C.J. and ARROWOOD, J. concur.

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Footnote: 1

“Thomas” is a pseudonym used to protect the victim’s
identity.

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Footnote: 2

“Kathy” is a pseudonym.

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Footnote: 3

“Michelle” is also a pseudonym.

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