State v. Lopez

1

State of Wisconsin, Plaintiff-Respondent, v. Ted Lopez, Defendant-Appellant.

No. 2020AP1840-CR

Court of Appeals of Wisconsin, District III

January 10, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Dunn County: No 2016CF220 ROD W. SMELTZER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

PER CURIAM.

¶1 Following a jury trial, Ted Lopez was convicted of sexually assaulting "Daniel,"^[1] the son of his former girlfriend when Daniel was between six and seven years old. On appeal Lopez contends that the circuit court erred by: (1) allowing a social worker to testify as an expert witness on topics beyond her field of expertise; (2) allowing the State to play recordings of two interviews with Daniel and an interview with another child, Carter, even though both of those witnesses also testified at trial; (3) allowing one of Lopez's former girlfriends, Elena, to testify regarding threats that Lopez made against her after he was charged in this case and fled to Minnesota; and (4) allowing the State's other-acts evidence to "overwhelm its proof of the charged crimes." We reject each of these arguments and affirm Lopez's judgment of conviction.

BACKGROUND

¶2 In June 2016, thirteen-year-old Daniel told a social worker that Lopez had sexually assaulted him at least twenty times when Daniel was between six and seven years old. Based on Daniel's allegations, the State charged Lopez with a single count of repeated sexual assault of the same child. The State ultimately filed five more charges against Lopez based on additional allegations involving Daniel: causing mental harm to a child; first-degree sexual assault of a child (sexual intercourse with a person under age twelve) exposing a child to harmful material; and two counts of child enticement. The State also filed multiple felony charges against Lopez in two other cases, based on allegations that Lopez had sexually assaulted Carter and another child and had possessed child pornography.

¶3 In January 2017, Lopez's father posted a cash bond to secure Lopez's release from custody. Six months later Lopez failed to appear at a hearing on his three pending cases, and a bench warrant was issued for his arrest. Approximately eight months later, Lopez was apprehended in Minnesota, where he had been residing under an alias.

¶4 The instant case proceeded to a jury trial in December 2018. Prior to trial, the State filed notices of its intent to introduce: (1) recordings of two interviews with Daniel; (2) expert testimony from social worker Michelle Harris regarding the reasons for delayed reporting in child sexual assault cases, "the interplay of a child's developmental level and … disclosure in a forensic interview," and "what the medical evaluation of a sexual abuse victim can show and what it cannot show and why or why not a medical evaluation of a young child may be appropriate depending on the type of disclosure made and the amount of time that has [e]lapsed"; (3) evidence regarding Lopez's flight to Minnesota, including threats that Lopez made to his then-girlfriend, Elena, after she provided law enforcement with information concerning his whereabouts; and (4) other-acts evidence regarding the conduct charged in Lopez's other two pending criminal cases.

¶5 Following a Daubert^[2] hearing, the circuit court ruled that Harris's expert testimony on the topics proposed by the State would be admissible at trial.

As to the State's motion to introduce other-acts evidence, the court ruled that the State could introduce evidence regarding Lopez's sexual assaults of Carter and evidence regarding the child pornography found on Lopez's computer, but the State could not introduce evidence regarding Lopez's conduct with a third child. The court also ruled that the State could introduce the recordings of Daniel's and Carter's interviews, as long as both boys were made available for cross-examination. The court further ruled that the State could introduce evidence regarding Lopez's flight to Minnesota, including evidence of his threats to Elena, but it could not introduce evidence regarding Lopez's threats to law enforcement.

¶6 At trial, Daniel's school counselor testified that Daniel told her he had been sexually assaulted by Lopez, and she reported that information to county authorities. Heather Russo, the child protection social worker who followed up on the school counselor's report, then testified about a forensic interview that she conducted with Daniel at the police department. A recording of that interview was played for the jury. During the interview, Daniel stated that Lopez had sexually assaulted him at least twenty times when Daniel was between six and seven years old. Daniel reported that he and his mother lived in a trailer with Lopez, and when Daniel's mother was not home, Lopez would come into Daniel's room, tell Daniel to pull down his pants, and touch Daniel's penis with his hands and mouth. At times, Lopez would also make Daniel touch Lopez's penis with his hands.

¶7 After the recording of Daniel's first forensic interview was played for the jury, Harris testified about-among other things-the process of conducting a forensic interview of a child, the signs and symptoms of sexual assault in children, the circumstances under which children should and should not receive a sexual assault examination, reasons why children may delay disclosing sexual abuse, and how common it is for a physical examination of a child victim to yield physical evidence of a sexual assault. Harris then discussed a second forensic interview that she had conducted with Daniel at the child advocacy center. A recording of that interview was played for the jury.

¶8 During the second forensic interview, Daniel discussed two specific incidents that he had not disclosed in his prior interview with Russo. In the first incident, Lopez drove Daniel to a hotel, stopping at a sex shop along the way where Lopez purchased a tan sex toy. At the hotel, Daniel wanted to go swimming in the hotel pool, but Lopez took out the sex toy and told Daniel to "use it on [Lopez's] rear" or Daniel would not be allowed to swim. Daniel refused and went swimming. Afterward, Lopez again asked Daniel to use the sex toy on him, and Daniel again refused.

¶9 The second incident occurred at Lopez's house when Daniel went there to visit his sister, after he was no longer living with Lopez. Lopez made Daniel smoke marijuana and also showed Daniel pornography. Lopez tried to put his mouth on Daniel's penis, but Daniel pushed him away and stated he "didn't want to do it." Lopez then forced Daniel to put his penis into Lopez's anus.

¶10 The State subsequently called Daniel to testify at trial. Daniel testified that while he was living with his mother and Lopez, Lopez would come into Daniel's room and touch Daniel's penis with Lopez's hands and mouth. Daniel also testified regarding the incident in which Lopez gave him marijuana, showed him pornography, and forced him to put his penis into Lopez's anus.

¶11 Carter's forensic interview was also played for the jury at trial. During the interview, Carter-who was then ten years old-stated that Lopez began sexually assaulting him when he was five. Lopez would show Carter pornography, including child pornography, and "rape" Carter. Carter elaborated that he and Lopez would touch each other's penises with their mouths, and Carter would also touch Lopez's penis with his hands. Carter also stated that Lopez made Carter put his penis into Lopez's anus on multiple occasions. Lopez tried to put his penis into Carter's anus, but it did not fit. Carter also reported that on one occasion, Lopez had his adult girlfriend over, and the three of them had sexual intercourse together.

¶12 Consistent with his forensic interview, Carter testified at trial that Lopez began sexually assaulting him when he was five years old and stopped when he was eight or nine. Carter testified that Lopez used his mouth to touch Carter's penis, and Carter did the same to Lopez. Carter also testified that he engaged in sexual acts with Lopez and Lopez's girlfriend. He further confirmed that Lopez had shown him pornography.

¶13 A law enforcement officer testified at trial regarding her forensic analysis of a computer seized from Lopez's home that contained documents associated with Lopez, including his résumé. The officer also testified that she found approximately 3,000 images of child pornography on that computer.

¶14 The State additionally introduced evidence at trial regarding Lopez's flight to Minnesota after the charges against him were filed. As relevant to this appeal, Elena testified that during the summer of 2017, Lopez provided her with a "back-up phone" that she could use to stay in contact with him after he fled to Minnesota. Elena testified that she remained in contact with Lopez while he was in Minnesota, but she was afraid to visit him. Lopez became angry that Elena would not visit him, and she therefore tried to end their relationship. Elena subsequently contacted the police and reported that Lopez was harassing her. Elena testified that Lopez then left her a threatening voice message and sent her a picture of guns, along with a text message stating that he would "bring his gang along to come to [her] work … to come after [her] and then he'll come after the cops."

¶15 The circuit court provided a cautionary jury instruction regarding the other-acts evidence introduced at Lopez's trial. The jury ultimately found Lopez guilty of all six offenses...