Direct Appeal Third District, Salt Lake The Honorable Judge
Paul Parker No. 141900304
D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen.,
Salt Lake City, for appellee
L. Welch, Andrea Garland, Nick A. Falcone, Salt Lake City,
Justice Pearce authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Judge DiReda joined.
recused herself, Justice Durham did not participate; District
Judge Michael D. DiReda sat.
Justice Petersen became a member of the Court on November 17,
2017, after oral argument in this matter, and accordingly did
1 On the day she died, Shannon Lopez picked her husband
Komasquin Lopez up from work. According to Lopez, he drove
home while he and Shannon argued in the cab of his truck.
Lopez claimed that the argument continued until Shannon shot
herself with a gun Lopez had in his truck. A jury disbelieved
Lopez and convicted him of murder. On appeal, Lopez argues
the district court erred in two ways. First, Lopez challenges
the admission of expert testimony that assessed Shannon's
risk of suicide. Second, Lopez contends that the district
court erred by admitting evidence that he had, on one
occasion, pointed a gun at Shannon's head, and that on
another, he had leveled a gun at an ex-wife and threatened to
kill her. Lopez also argues that the errors were harmful both
individually and cumulatively, and that insufficient evidence
existed to convict him.
2 We conclude that the State did not lay a sufficient
foundation to demonstrate that the theory its expert employed
could be reliably used to assess the suicide risk of someone
who had died. We also conclude that the district court erred
by admitting the evidence of Lopez's prior actions. The
errors were harmful. We reverse.
3 Lopez and Shannon, who were married at the time of
Shannon's death, both enjoyed shooting guns. Lopez used a
gun throughout his career in the military and law
enforcement. Shannon, who had been introduced to firearms at
the age of nine, was a recreational shooter. Lopez and
Shannon kept multiple guns in their home. Lopez usually
carried a gun in his truck and another on his person.
4 On the night of Shannon's death, Shannon picked Lopez
up from work. Shannon had consumed methamphetamine in a
quantity that the medical examiner described as
"toxic." Lopez also had methamphetamine in his
system. During their commute, Lopez and Shannon argued about
Shannon's methamphetamine use and their financial
problems. Lopez said during a police interview "that
Shannon's last words were . . . that she would take the
kids and go to her father's[.]" He "repeat[ed]
. . . several times during [one of the] interview[s]"
that "[s]he said she'd take the kids, she's
already packed, and she'll leave . . . ." He further
stated that he "told her . . . during the argument he
was going to leave her also." During his trial
testimony, Lopez maintained that he said he would leave her,
but denied hearing Shannon say that she would leave him.
5 Lopez testified that as he was making a left hand turn, he
heard the sound of breaking glass. Lopez turned to see that
Shannon was "slumped forward." Lopez tried to turn
the truck around to take Shannon to a hospital, but crashed
into another car and then into a fence. Witnesses saw Lopez
jump out of the truck and lie on the ground while saying
"sorry mommy" or "sorry mama" repeatedly.
6 Shannon had been shot in her left ear. When police arrived,
they found that Shannon's legs were crossed at the
ankles. Shannon's right hand-Shannon was right handed-was
hidden in her jacket sleeve. Officers found a gun and holster
on the floor of the driver's side of the
7 Months before she died, Shannon sent a text message to
Lopez expressing a desire to end her life. Shannon had spoken
to her son, M.N., about suicide in the past. A month before
she died, Shannon had threatened to shoot herself.
8 The State charged Lopez with criminal homicide murder.
Because the medical examiner's report ruled out the
possibility that the gun had accidentally discharged, the key
dispute was who fired the shot that killed Shannon.
9 The physical evidence was inconclusive. The medical
examiner testified that the location of the wound was
"atypical" for a suicide, but that he could not
determine the manner of death conclusively. Examiners found
gunshot residue on Lopez's hand, but all that could be
gleaned from this was that Lopez was "in proximity when
[the] firearm was discharged." A blood spatter analyst
was unable to conclude whether Shannon's wound was
10 To prove that Shannon did not shoot herself, the State
offered expert testimony from Dr. Craig Bryan, a clinical
psychologist. Dr. Bryan specializes in the treatment of
suicide patients using the Fluid Vulnerability Theory of
Suicide (FVTS). FVTS is the "most commonly used theory
and approach to developing treatment and understanding
suicide risks." The theory is based on "scientific
evidence gained from clinical care of suicide patients as
well as multidisciplinary scientific efforts
11 FVTS assesses two different types of risk: baseline and
acute. Predispositions-including demographic factors,
"[d]ifficulty managing emotions, " and
"history of psychiatric disorders"- increase the
baseline risk, meaning that "[i]ndividuals with many
predispositions . . . . experience more suicidal crises more
often and take longer to 'recover' from crises and
discrete periods of emotional distress." This baseline
risk can be "offset" by "protective factors,
" such as an optimistic outlook, a strong support
network, or motherhood. "Acute risk, " on the other
hand, "entails the emotional, physiological, behavioral,
and cognitive factors associated with an active suicidal
episode." Taking baseline and acute risk together, the
model posits that "a triggering event will only lead to
suicide among individuals with sufficient [baseline
risk]." When applying FVTS, Dr. Bryan conducts
interviews with his patients. Sometimes, Dr. Bryan employs
testing "designed to . . . identify the risk and
protective factors in a way that might not be obvious to the
12 Lopez challenged the admission of Dr. Bryan's
testimony on various grounds, including that it was neither
helpful nor reliable. The district court admitted "Dr.
Bryan's opinion as to whether Shannon Lopez's
behavior prior to her death was inconsistent with
suicide" into evidence. The district court excluded,
however, "[a]ny testimony that Dr. Bryan's opinions
are definitive or based on scientific certainty."
13 In response to Dr. Bryan's testimony, the defense
called an expert who testified that Shannon's death was a
"classic suicide, " noting that "[t]ypically
someone doesn't hold their head still while you shoot
14 The State also sought to offer evidence of several prior
acts involving Lopez threatening a family member with a gun
and/or pointing a gun at their head. The court allowed the
admission of two of those acts. The first described Lopez and
Shannon talking with their coworker about how to kill
effectively. To demonstrate, Lopez pulled out a gun and
pointed it at Shannon's head near her left ear. The
district court found that "the act of someone describing
the best place to shoot someone, in fact even demonstrating
that, is very relevant to the identification of someone who
may have done that at another time."
15 The second prior act involved an argument Lopez had with
an ex-wife where he "hit her in the stomach, "
"pointed a gun at her head, " and verbally
threatened to kill them both if she ever sought a divorce.
The district court reasoned this evidence was admissible
because "the identity of the shooter is the issue, and
therefore, it is relevant to that, what he did to a prior
spouse, under a prior circumstance when she indicated she was
16 The jury found Lopez guilty of murder. The jurors
additionally found Lopez had used a dangerous weapon. The
district court sentenced Lopez to sixteen years to life.
AND STANDARD OF REVIEW
17 Lopez first argues that Dr. Bryan's testimony should
not have been admitted because, among other things, it lacked
an adequate foundation. Next, Lopez contends that the
character evidence should not have been admitted because it
was not relevant, not offered for a proper purpose, and was
prejudicial. Lopez also argues cumulative error and claims
there was insufficient evidence to convict him.
18 We review the admission of expert testimony and character
evidence under an abuse of discretion standard. State v.
Maestas, 2012 UT 46, ¶ 154, 299 P.3d 892; State
v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016.
Because we agree with Lopez on the first two grounds, and
conclude they constitute harmful error, we do not reach the
issues of cumulative error or sufficiency of the evidence.
District Court Abused Its Discretion by Admitting Dr.
Bryan's Testimony Without an Adequate ...