People v. Lopez

550 P.3d 731

2024 COA 26

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Gustavo LOPEZ, Defendant-Appellant.

Court of Appeals No. 19CA2313

Colorado Court of Appeals, Div. VI.

Announced March 14, 2024

Boulder County District Court No. 18CR1290, Honorable Andrew Hartman, Judge

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE HARRIS

¶ 1 A jury found defendant, Gustavo Lopez, guilty of sexually abusing his son, daughter, and niece, and of possessing child pornography.

¶ 2 The prosecution presented evidence that, while spanking his then five-or six-year-old son, Lopez inserted his finger into his son’s anus, and when his daughter was about ten years old, Lopez drove her to a parking lot and tried to put her hand on his penis. Sometime after those incidents, while babysitting his then five-year-old niece, he performed oral sex on her.

¶ 3 The jury returned guilty verdicts on all counts.

¶ 4 On appeal, Lopez’s primary argument is that the trial court erred by admitting expert testimony that the son and daughter did not show signs of having been coached in reporting the allegations. He also argues that the court gave the jury a coercive instruction during deliberations and improperly conducted a child competency examination during trial.

¶ 5 We conclude that defense counsel opened the door to the interviewer’s testimony, and because we reject Lopez’s other arguments as well, we affirm the judgment.

I. Coaching Testimony

[1] ¶ 6 Lopez contends that the interviewer’s testimony that the children did not appear to have been coached was inadmissible because it vouched for the children’s truthfulness.

A. Background

¶ 7 Two years before trial, Lopez’s son and daughter underwent forensic interviews about their sexual abuse allegations. The forensic interviewer testified at trial as an expert.

¶ 8 During direct examination, the interviewer discussed the concepts of "suggestibility" and "coaching." She testified that she is trained to "look[] for coaching," and she explained what kinds of questions she would ask if she suspected that a child had been coached. One such question asks for "experience based detail[s]" because, according to the interviewer, "if a child is being coached, it is more difficult for them to describe all the details of what" happened, as the person coaching the child usually does not "tell[ ] the child to say all of these [details] as well."

¶ 9 On cross-examination, defense counsel returned to the topic of suggestibility. In response to counsel’s questions, the interviewer acknowledged that she did not have any control over who the children talked to before the interviews, and she did not know how many times the children had previously talked about the allegations. She agreed that unlike forensic interviewers, "normal people" might not know how to question children without suggesting answers.

¶ 10 Over defense counsel’s objection, the court then asked the following juror question: "In your expert opinion, was either [the son’s] or [the daughter’s] behavior consistent with interviews where coaching was present?" The interviewer responded that, "[i]n [her] opinion," she did not "feel like [she] saw huge red flags" or "anything that indicated [coaching] because both children were, able to provide very specific experience-based details" about the incidents.

B. Standard of Review

[2, 3] ¶ 11 We review a trial court’s evidentiary rulings for an abuse of discretion. People v. Bridges, 2014 COA 65, ¶ 8, 410 P.3d 512. The trial court permitted the challenged testimony on the theory that "coaching" testimony is "broader than merely commenting on credibility." But we can affirm the trial court’s ruling on any ground supported by the record, even if the court did not articulate or consider that ground. People v. Brown, 2014 COA 155M-2, ¶ 15, 360 P.3d 167; see also People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009) ("[A] defendant’s conviction will not be reversed if a trial court reaches a correct result although by an incorrect analysis." (quoting People v. Quintana, 882 P.2d 1366, 1375 (Colo. 1994))), abrogated on other grounds by Rojas v. People, 2022 CO 8, 504 P.3d 296.

C. Lopez Opened the Door to the Coaching Testimony

[4–6] ¶ 12 A witness may not testify that another witness, including a child victim, told the truth on a particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32, 388 P.3d 868. "This rule applies to both direct and indirect implications of a child’s truthfulness." Id. Therefore, an expert witness may not opine that a. child was not coached in making allegations, Bridges, ¶ 16, or — because it amounts to the same thing — that the expert did not see signs of coaching, People v. Heredia-Cobos, 2017 COA 130, 117, 415 P.3d 860. Coaching testimony is impermissible because it "constitute[s] conclusions about [the children’s] truthfulness in their respective interviews," Bridges, ¶ 16, and is "tantamount to vouching for the ohild[ren]’s credibility," Heredia-Cobos, ¶ 14.

¶ 13 The People argue that even if coaching testimony is ordinarily inadmissible, Lopez opened the door to admission of the testimony by advancing a defense that the children’s allegations were the product of suggestibility or coaching. We agree.

[7, 8] ¶ 14 A party may open the door to otherwise inadmissible evidence by selectively presenting facts that, without being elaborated on or placed in context, create a misleading impression. See Golob v. People, 180 P.3d 1006, 1012-13 (Colo. 2008). Thus, when the defense challenges a "child witness’s credibility by suggesting that the witness had been coached, the defense opens the door to testimony that the witness didn’t appear to have been coached." Heredia-Cobos, ¶ 24 (collecting cases adopting this rule); cf. Venalonzo, ¶ 44 (defense counsel opened the door to detective’s otherwise inadmissible testimony that children only make up trivial stories, not serious accusations).

¶ 15 In Heredia-Cobos, ¶ 12, for example, the defendant challenged the admission of the forensic interviewer’s testimony that she did not "see any indications of coaching during [the victim’s] interview." But the defendant had pursued a theory that the child victim’s family members had coached her on the details of the assault. Id. at ¶ 21. Beginning with the opening statement and continuing through the cross-examination of various witnesses, defense counsel underscored that family members had gathered together before a detective interviewed them, and the victim had talked to her family about the incident; that family members "liked to gossip about other family members"; that a cousin had reminded the victim of certain details of the day of the incident; and that the victim’s reports about the incident were inconsistent. Id. at ¶¶ 22-23. The division-concluded that by pursuing a coaching theory, the defense opened the door to the otherwise inadmissible testimony. Id. at ¶¶ 20-25.

¶ 16 We reach the same conclusion here. The defense theory was that the children’s allegations were either fabrications or false memories of abuse, resulting from the undue influence of their maternal grandmother, who wanted to maintain custody of the children.

¶ 17 Defense counsel began to advance the theory as early as voir dire by extensively questioning prospective jurors about children’s suggestibility.

• Counsel asked the venire to comment on "how family members can possibly sway other family members [or] have influence on other family members."

• She asked one prospective juror whether she had any experience involving "people taking advantage of other people" or "trying to suggest to them things that maybe aren’t real."

• Counsel followed up with that juror by asking, "Do you think that children might be easier to suggest or easier to maybe take advantage of in trying to manipulate reality from non-reality?"

• Counsel asked another prospective juror, "Do you think it’s possible for adults to suggest to children that things happened that maybe never did happen?" When the juror asked for clarification, counsel used as an example a "five-year-old [who] is hanging out with grandma" and "grandma wants that five-year-old to stay with grandma." Counsel was interrupted by the prosecutor’s objection, which the court sustained because defense counsel was essentially arguing her theory of the case.

• Counsel asked another prospective juror whether she thought it was possible "that a kid may come to believe something that’s not true; not intentionally, but — I mean, they sincerely believe something happened just because of an influence of someone they are very close to?"

• Finally, counsel asked the prospective jurors to offer possible reasons an adult might try to influence a child’s perception of a situation.

¶ 18 Then, in opening statement, counsel told the jury to pay attention to the "time line" in the case — "when things are happening, where the children are, who they are with when they are making these various allegations." She explained that the jurors would "hear some very different versions of events and those versions will differ based on who has control over the children."

¶ 19 During cross-examination of the daughter, defense counsel elicited testimony that a year after the incident, at an interview with a social services caseworker that the grandmother did not attend, the daughter had denied any wrongdoing by Lopez. Counsel then elicited testimony that by the time of the forensic interview in which she disclosed abuse, the daughter was living with grandmother and, before the interview, she "talked to [grandmother] about … why [she] was going [to the interview] and what [she] w[as] going to say." The daughter agreed with counsel that grandmother "wanted to make sure [the daughter] told [the...