Lopez v. State

• Decision Date: 07 September 2004
• Docket Number: No. 03-76.,03-76.
• Citation: 2004 WY 103,98 P.3d 143
• Parties: Lee Lloyd LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

98 P.3d 143

2004 WY 103

Lee Lloyd LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-76.

Supreme Court of Wyoming.

September 7, 2004.

Representing Appellant: Kenneth Koski, State Public Defender; Donna Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; Diane Courselle, Director, and Bob Hitchcock, Student Intern, of the Wyoming Defender Aid Program. Argument by Mr. Hitchcock.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, and Robert W. Ingram, Student Director, of the Prosecution Assistance Program. Argument by Mr. Ingram.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] In this appeal, Lee Lloyd Lopez, convicted of third degree sexual assault of CS, the ten-year-old daughter of Mr. Lopez's ex-wife, raises three issues in this effort to overturn the judgment and sentence of imprisonment for not less than six nor more than eight years in the Wyoming State Penitentiary. Mr. Lopez contends that a prosecution witness, Lynn Huylar, a social worker and self-styled "forensic interviewer" at a child advocacy center, impermissibly vouched for CS's truthfulness; the trial court violated his constitutional right to present a defense when it excluded evidence that showed an alternative source for CS's sexual knowledge and evidence that showed CS had reason to believe that an accusation of the kind made could get the attention of adults without getting the person accused into serious trouble; and the prosecutor committed misconduct during Mr. Lopez's cross-examination by trying to goad Mr. Lopez into inviting inadmissible evidence, and the trial court erroneously changed a previous evidentiary ruling on the inadmissible evidence in question which allowed the prosecutor to benefit from the misconduct. We hold that prosecution witness Huylar impermissibly vouched for CS's truthfulness and, therefore, we reverse and remand for a new trial.

GENERAL STATEMENT OF FACTS

[¶ 2] CS was born May 10, 1990, to DS, her father, and KL, her mother. They also had a younger son, KS. DS and KL separated for nine months and eventually divorced June 11, 1999, when CS was eight years old. DS received custody of CS and KS; they live in Laramie. Her parents' divorce was emotionally difficult for CS; she began and continued professional counseling for several years and was in counseling with her school counselor at the time of her accusations against Mr. Lopez. KL worked at Behavioral Health Services; she was Mr. Lopez's counselor. KL and Mr. Lopez married June 17, 1999, six days after her divorce from DS. This marriage ended in divorce on March 31, 2000, but the couple maintained a relationship, a son, J, being born to them in January 2001. CS's mother and Mr. Lopez were living in Cheyenne. About every other weekend, CS and KS would visit their mother in Cheyenne. Mr. Lopez was present in their mother's home during these visits; he often took the children on recreational outings. A friendly relationship developed between Mr. Lopez and the children. Mr. Lopez had martial arts training; occasionally he and CS rough-housed and wrestled, CS often initiating the contact.

[¶ 3] On Presidents' Day weekend in 2001, CS, then age 10, and KS visited their mother, Mr. Lopez, and J in Cheyenne, arriving on Friday, February 16, and returning to Laramie on Monday, February 19. On Saturday, February 17, CS and KS accompanied Mr. Lopez to a martial arts tournament in Denver. That evening the family dined at a restaurant, returned to KL's home, and watched television. All of the family members, except for CS and Mr. Lopez, went to bed; CS and Mr. Lopez continued watching television.

[¶ 4] Mr. Lopez and CS began wrestling, first on the floor and then on the couch. At trial, CS testified that Mr. Lopez had her "pinned on the couch, or something like that.... He was kind of laying on me ... more like sitting and leaning on me." Her left leg was pinned against the side of the couch. Mr. Lopez began tickling CS, first her feet, then moving up to her knee and to her thigh, "and then he moved up closer in between." She testified that Mr. Lopez touched her on her "private area," with his index finger, and was "kind of tickling" her. She testified that this tickling of her private area lasted for more than ten seconds. CS was giggling, and it tickled. She told Mr. Lopez to stop, but he kept tickling her. She did not know for how long it continued. Finally, she went to her room and went to bed.

[¶ 5] According to KL, CS's mother, the next day CS was sick to her stomach and did not want to come out of the bathroom. CS testified, however, that she and KS started teasing and kickboxing with Mr. Lopez in the hallway the next day. CS ran up to Mr. Lopez and playfully kicked him. Mr. Lopez turned around, and they began wrestling again. Mr. Lopez testified that CS did not indicate that she was uncomfortable with this contact or ask him to stop. At trial, CS testified that Mr. Lopez tickled her in her private area on the outside of her jeans while they were rough-housing. Mr. Lopez denied that he tickled her there. Mrs. Lopez and KS were in the area while all of this was going on.

[¶ 6] CS did not immediately tell her mother that Mr. Lopez had touched her "private area." And she did not immediately tell her father when she returned home to Laramie on Monday, February 19. The first person she told was her sitter, Trish Brady, on Wednesday, February 28, eleven days after the alleged incident. Ms. Brady called CS's father, DS, to come home. CS talked to her father; he did not notify authorities. Instead, DS told CS to talk to her school counselor, Linda Kaiser, about it.

[¶ 7] On March 6, 2001, CS was interviewed by Lynn Huylar, a social worker employed as program director and forensic interviewer by Safe Harbor, a children's justice center. The interview was recorded on videotape. On March 7, 2001, Mr. Lopez was interviewed by Cheyenne Police Department Detective Ray Bilkie and made a statement to Detective Bilkie which was recorded on audio tape.

[¶ 8] At trial, CS testified that Mr. Lopez had inappropriately touched her; Mr. Lopez testified and denied that he had inappropriately touched CS. There was no physical evidence of the alleged assault. Additional facts relevant to each of the three issues before us are set forth as necessary below.

Issue One: Whether the State's witness, Lynn Huylar, social worker and forensic interviewer, impermissibly vouched for CS's truthfulness during her testimony as a prosecution witness.

Background facts

[¶ 9] Before the trial, Mr. Lopez's trial counsel filed a motion in limine, moving the court to rule that the prosecutor and the State's witnesses refrain from stating an opinion that CS was molested. The court ruled that witnesses, with the exception of CS, could not testify that, in their opinion, Mr. Lopez molested CS or that CS's statements were true.

[¶ 10] During the prosecutor's opening statement to the jury, the following occurred:

[Prosecutor]: Lynn [Huylar] specializes in conducting forensic interviews with children, and Miss Huylar will explain to you the basics of conducting a forensic interview, how her interview with [CS] went, what the requirements of that interview were based on her experience.

She'll tell you that [CS's] story was consistent. It was full of important contextual details, and that the dialog [CS] used in conveying the incident was very age appropriate. She'll tell you she classified the interview as a credible disclosure.

[Defense]: Your Honor, I'm going to have to object, sounds like there's some vouching and argument going on.

The Court: Well, he may indicate what the expected testimony will be.

[Prosecutor]: May I continue?

The Court: Go ahead.

[Prosecutor]: [CS's] story to this point to March 5th to Trish Brady, to her father; to Mrs. Kaiser, the school counselor, and now Miss Huylar was consistent.

[Defense]: Your Honor, I'm going to have to object again. It's argumentative, and if the State is going to put these people on the stand, I'm going to be objecting. It sounds like they're vouching for credibility, and it's inappropriate.

The Court: Well, it is going past opening statement into argument. I'll sustain that objection.

[¶ 11] CS, CS's day-care provider, CS's mother, CS's father, and a friend of Mr. Lopez testified before the prosecutor called Lynn Huylar. Immediately before Ms. Huylar took the stand as a prosecution witness, Mr. Lopez's trial counsel expressed concern to the court and the prosecutor at a bench conference that Ms. Huylar would be using terms like "credible" and "credibility." Mr. Lopez's trial counsel wanted "to object to her doing that right now before she even begins." The prosecutor, in responding to the anticipatory objection of Mr. Lopez's trial counsel, responded twice:

Your Honor, that was handled in a motion in limine. [Lynn Huylar] did find the report was credible; however, she doesn't — and she will say that that doesn't mean [CS] was telling the truth. Those are the terms of art used in her profession to classify a disclosure, and she classified it as credible. It's part of our findings in this case.

* * * *

The case law in Lancaster's clear that you can say these are the things on which I conduct my interview, whatever the case may be, and this is what I found. That is not impermissible. She's not going to say that [CS's] telling the truth. She's going to say, "In my field, these are the things I look for, and based on my training, and experience, I found this particular report to be credible." That does not necessarily mean she was telling the truth.

The trial court responded, "I think I understand that distinction, but in common parlance, it might...