People v. Lopez, No. 03CA0049.

• Decision Date: 28 July 2005
• Docket Number: No. 03CA0049.
• Citation: 129 P.3d 1061
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul LOPEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

129 P.3d 1061

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Paul LOPEZ, Defendant-Appellant.

No. 03CA0049.

Colorado Court of Appeals, Division V.

July 28, 2005.

Certiorari Denied March 20, 2006.^*

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by: Judge DAILEY.

Defendant, Paul Lopez, appeals the judgments of conviction and sentences entered upon jury verdicts finding him guilty of two counts each of sexual assault on a child by one in a position of trust and sexual assault on a child as part of a pattern of abuse. We affirm.

Defendant, a former teacher in the Denver Public School system, was charged with having performed sex acts eight to ten years earlier with and on two middle school students with whom he had established a mentor relationship. The two students, who were brothers, testified at trial; a third student testified to similar acts performed with and on him by defendant, at about the same time. A detective also related that defendant had admitted engaging in the various acts of sexual misconduct with the three boys.

Defendant attacked the credibility of the prosecution's witnesses. To the one victim who had made a somewhat timely complaint, defendant attributed a motive of revenge for his having interfered in the victim's relationship with a girl. He inquired why the other victim had affirmatively denied, until only recently, any allegation of misconduct by defendant. And he inquired why the third student had not come forth with any allegation of misconduct until recently.

Defendant testified on his own behalf. He disputed the three boys' accusations and denied having made any admissions of misconduct to the detective.

The jury found defendant guilty, and the trial court sentenced him to two consecutive twenty-six-year terms on the two counts of sexual assault as part of a pattern of abuse, and two concurrent sixteen-year terms on the two counts of sexual assault by one in position of trust.

I. Evidence of Other Bad Acts

Defendant contends that reversal is required because, in two instances, other bad act evidence was improperly injected into the case. We disagree.

In the first instance, the detective who investigated one victim's initial complaint in 1994 testified that he had also "interviewed another victim." In the second, the detective who interrogated defendant testified he told defendant that the third student had made a complaint and "that many other kids had come forward, and [the detective] started naming names."

When read in context, the detective's statements clearly imply that defendant had been accused of or had committed crimes of sexual misconduct involving other children.

"[E]vidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors ...." People v. Novitskiy, 81 P.3d 1070, 1072 (Colo.App.2003)(quoting Stull v. People, 140 Colo. 278, 284, 344 P.2d 455, 458 (1959)). Unless admitted pursuant to CRE 404(b) and, here, because of the nature of the alleged other activity, § 16-10-301, C.R.S. 2004, such evidence unfairly exposes a defendant to the risk of being found guilty based on bad character rather than on evidence relating to the charged offense. See People v. Garner, 806 P.2d 366, 369-70 (Colo.1991).

However, improper reference to a defendant's other bad acts is not per se reversible error. See Vigil v. People, 731 P.2d 713, 716 (Colo. 1987)(improper reference to other bad acts evidence found harmless); People v. Vigil, 718 P.2d 496, 505-06 (Colo.1986)(improper reference to other bad acts evidence did not require mistrial).

A. First Incident: "Another Victim"

Defendant objected to the detective's testimony about "another victim," but only on hearsay grounds. Because he did not object on the ground that the detective's testimony impermissibly raised the spectre of other bad acts, our review is limited to determining whether the error rises to the level of plain error. See People v. Kruse, 839 P.2d 1, 3 (Colo.1992). We conclude that it does not rise to that level.

Plain error is error "that is obvious, substantial, and grave"; it is error that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Moore v. People, 925 P.2d 264, 268-69 (Colo. 1996); see also People v. Miller, 113 P.3d 743, 750 (Colo.2005).

We perceive neither obvious nor grave error arising from the first incident. In light of what the jury already knew from opening statements, it may well have interpreted the detective's remark as referring to one of the other two young men whom it expected to testify that defendant had sexually assaulted them. Thus viewed, the detective's statement was not so inflammatory that the jury could not disregard it, as instructed by the court. See People v. McNeely, 68 P.3d 540, 542 (Colo.App.2002)(a curative instruction is sufficient to overcome an evidentiary error, except when the evidence is so prejudicial that, but for its exposure, the jury might not have found against the defendant).

B. Second Incident: "Many Other Kids Had Come Forward"

Defendant objected and requested a mistrial after the second detective testified that he had told defendant "Many other kids had come forward" and he "started naming names."

The detective had previously provided similar testimony in a preliminary hearing; at the time, however, he had related the names of the children who testified at trial as well as two additional children. References to, and testimony from, these additional children were excluded prior to trial on CRE 404(b) grounds.

The prosecution proposed to "cure" the problem at trial by asking the detective whether his reference to "many other victims" meant the two victims in this case. Defendant acceded to this proposal. But the prosecution failed to ask that precise question. Instead, the prosecution asked only whether, in "mention[ing] other victims [to defendant]," the detective was "referring to" the two alleged victims in this case, to which the detective responded, "Yes."

Defendant did not, however, renew his objection. And, by acceding without objection to the prosecution's attempt to cure the problem, he waived his right to assert error on appeal. See United States v. Walton, 255 F.3d 437, 441 (7th Cir.2001) (clarifying that a "waived" issue is the result of an "intentional choice not to assert [a] right," while a "forfeited" issue is the result of an accidental, negligent, or inadvertent "failure to assert a right"; and noting, "While forfeited issues are reviewable on appeal for plain error, a waived issue is unreviewable because a valid waiver leaves no error to correct and extinguishes all appellate review of the issue."); see also People v. Abeyta, 923 P.2d 318, 321 (Colo.App.1996)(defendant's withdrawal of claims from court's consideration resulted in abandonment or waiver of claims).

Further, where, as here, the error is not of constitutional dimension, reversal would not be warranted unless the error substantially influenced the verdict or affected the fairness of the trial proceedings. See Masters v. People, 58 P.3d 979, 1002-03 (Colo.2002) (evaluating the effect of inadmissible evidence of bad character). The test is whether there is a reasonable probability that the error contributed to the defendant's conviction. Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).

Here, we find no such probability. Although the inadmissible evidence had the potential to influence the jury to convict defendant based on extra-evidentiary considerations, this result was not reasonably likely. In a subsequent question, the prosecution explicitly listed the three boys who testified in this case as the ones alleging sexual abuse by defendant; the prosecution's case against defendant was strong; and no reference to any other possible victims was made throughout the rest of the trial.

In light of these considerations, we conclude with fair assurance that the one-time use of the adjective "many" did not substantially influence the verdict or impair the fairness of the trial. See Masters v. People, supra, 58 P.3d at 1003-04 (erroneous admission of drawings and writings revealing defendant's violent and prejudiced nature harmless, in light of the lack of emphasis given to them by the prosecution, the existence of other admissible evidence reflecting such nature, and the substantial evidence of defendant's guilt).

Accordingly, defendant is not entitled to a new trial.

In reaching this conclusion, we reject defendant's reliance on Lehman v. State, 777 N.E.2d 69, 73 (Ind.Ct.App.2002), and Reed v. State, 991 S.W.2d 354, 365 (Tex.App.1999). In Reed, the court set forth what we perceive to be the overriding principle of both cases, namely, that "[i]n a case alleging a single aggravated sexual assault against one child, a reference to other possible victims of the appellant [is] extremely prejudicial." Reed, supra, 991 S.W.2d at 364 (emphasis added). The present case is distinguishable from both Lehman and Reed by the fact that numerous sexual acts were alleged to have been committed against two named victims and a third student as well. Hence, the potential for prejudice was not as great here as it was in Reed and Lehman.

II. Vouching for Witness Credibility

Defendant also contends that reversal is required because the prosecutor and the detective who interrogated him impermissibly and repeatedly vouched for the credibility of the victims. Again, we disagree.

Except as provided in CRE 608(a), a witness may not offer an opinion that a child was telling the truth on the specific occasion when the child reported having been sexually assaulted by the accused. See People v. Eppens, 979 P.2d...