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State v. Lopez

Court of Appeals of Utah

January 10, 2019

State of Utah, Appellee,
Andre Gustavo Henry Lopez, Appellant.

          Fourth District Court, Provo Department The Honorable Claudia Laycock No. 131403285

          Douglas J. Thompson and Margaret P. Lindsay, Attorneys for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.



         ¶1 Defendant Andre Gustavo Henry Lopez appeals his convictions for rape, object rape, and assault. Defendant argues that he received constitutionally ineffective assistance of counsel and that the cumulative effect of counsel's errors deprived him of a fair trial. We reject each of Defendant's arguments and affirm.


         ¶2 Defendant and his girlfriend (Girlfriend) lived together. One evening, they attended a wedding reception where they both consumed alcohol. Defendant observed Girlfriend speaking to other men and became agitated. After leaving with Girlfriend, he yelled at her "the whole car drive home," using a variety of sexual and racial invectives and challenging Girlfriend's sexual self-restraint.

         ¶3 Upon arriving at their house, Defendant's tirade continued, prompting a neighbor (Neighbor) to call the police because of the yelling and screaming. A police officer responded to the house soon after and spoke only to Girlfriend. Girlfriend said everything was fine and told the officer to leave because his presence was "going to make this worse."

         ¶4 After the officer left, Defendant resumed insulting Girlfriend and insisted that she have sex with him because she needed to "take care of his needs." Defendant tried to kiss Girlfriend, but she "told him no" and pushed him away with her hand. This further upset Defendant, so he threatened he was "gonna take it" if she refused to have sex with him. Girlfriend curled up in the fetal position on the couch and Defendant put his hand on her neck and shoved her down. Then he put his fingers in her vagina and her anus. Girlfriend told Defendant he was hurting her and told him to stop.

         ¶5 Defendant then yanked Girlfriend's sweatpants hard enough to pull her off the couch, ripping the pants in the process. Girlfriend pleaded with him to go to bed and "just be done." Defendant responded by dragging Girlfriend by her ankle to the front door, demanding that she leave if she would not have sex with him. Girlfriend made her way back to the couch. At this point, Girlfriend succumbed to Defendant's threats and agreed to go upstairs to the bedroom with him. On the way upstairs, Defendant smacked Girlfriend's legs, hit her head, and pulled her hair.

         ¶6 Once upstairs, Defendant removed his pants and demanded oral sex, again disparaging Girlfriend. Girlfriend said, "Please no," and she asked him to "just go to bed." According to Girlfriend, "that's when he took it." Though Girlfriend tried to keep her legs closed and told Defendant he was hurting her, Defendant raped Girlfriend twice.

         ¶7 The next morning, Defendant apologized, telling Girlfriend that he "didn't know [he] did that to [her]" and that he was "so sorry." Defendant explained that he "blacked out" and did not remember anything that happened. Two days after the incident, Defendant sent a text message to Girlfriend stating he "really fucked up [their] life," and wondered "[w]hat charges" she would be "pressing on [him]." Girlfriend reported the incident to the police later that morning and underwent a sexual assault medical examination that same day.

         ¶8 The physician identified extensive bruising on Girlfriend's arms, legs, neck, back, and lower abdomen. The physician could not pinpoint the age of the bruises, but opined that they "seemed very similar" and were consistent with Girlfriend's account. The physician also found vaginal injury, consistent with Girlfriend's account of the rape, but acknowledged that the injury was also consistent with consensual sex.

         ¶9 Meanwhile, Defendant, apparently in a panic, spoke to Neighbor-the one who initially called the police-explaining what had happened. Defendant "sounded stressed out" and "was pacing back and forth" while he spoke. Defendant explained that he ripped Girlfriend's pants off and forced her to kiss him. He also said he was nervous that Girlfriend would accuse him of attempted rape because he forced her to kiss him during sex, and because she had recovered her pants from the garbage. After hearing Defendant's account, Neighbor said, "[T]hat's not makeup sex. That's not attempted rape in my mind. That is rape, you know." Neighbor's girlfriend arrived during the conversation, and Defendant told her the same story.

         ¶10 The State charged Defendant with rape, two counts of object rape, and assault. Defendant testified at trial, corroborating some of Girlfriend's account of the incident. He acknowledged that he was upset and jealous because Girlfriend spoke to other men at the wedding reception. He also confirmed that he called Girlfriend names, tried to kiss her and was rebuffed, tried to kick her out of the house, and pulled her off the couch by yanking her pants.

         ¶11 Diverging from Girlfriend's account, Defendant testified that Girlfriend joined him upstairs after a brief separation following their argument and altercation. There they "talked for a minute about what happened." Then they kissed, Defendant explained, and he and Girlfriend had consensual sex twice.

         ¶12 The jury acquitted Defendant of one of the object rape counts, but it convicted him of one count each of rape, object rape, and assault. Defendant appeals his convictions.

         ¶13 Defendant asserts on appeal, among other things, that his trial counsel was constitutionally ineffective for failing to investigate a car accident that Girlfriend allegedly "was involved in on the day she reported the offenses in this case." He further contends that trial counsel was ineffective for failing to "consult with a medical expert regarding the medical evidence related to [Girlfriend's] injuries." Following initial briefing and oral argument in this court, we remanded to the district court pursuant to rule 23B of the Utah Rules of Appellate Procedure in order to develop evidence in the record. See State v. Heywood, 2015 UT App 191, ¶ 39, 357 P.3d 565 (explaining that "[t]he purpose of a rule 23B remand is to develop new evidence in the record, without which a defendant cannot bring his ineffective assistance of counsel claim on appeal" (quotation simplified)). Following three evidentiary hearings, the district court issued findings on this new evidence.

         Defense Theory of the Case and the Car Accident

         ¶14 Defendant admitted to neighbors, police, and his attorneys that he engaged in a physical altercation with Girlfriend on the date of the incident, resulting in injury to both of them.[2] Because Defendant also acknowledged that he and Girlfriend had engaged in sexual intercourse on the night of the altercation, trial counsel chose to focus on the defense theory that, although Defendant injured Girlfriend, the sex was consensual.

         ¶15 Defendant explained to defense counsel prior to trial that he and Girlfriend had sex on the night of the incident, about an hour and a half to two hours after the physical altercation. Defense counsel then prepared a defense theory that, although Defendant and Girlfriend engaged in a physical fight, the sex that followed was consensual. This incident, counsel would contend, mirrored a pattern in the couple's relationship- physical altercations followed by "make-up sex." Defendant testified at trial, however, that only about fifteen minutes separated the physical altercation downstairs and the sex in the bedroom. Upon hearing his client on the witness stand state that only fifteen minutes separated the altercation and sex-rather than an hour and a half to two hours-defense counsel believed "the whole defense theory fell apart." Specifically, counsel thought the jury would not believe that consensual "make-up sex" occurred so soon after a violent, physical attack.

         ¶16 Of additional concern to defense counsel in defending his client, shortly before trial Defendant "completely contradicted" his account of the incident. In contrast to the story he told counsel initially, Defendant later told counsel that he did not get into a physical altercation with Girlfriend and did not cause any of her injuries. Instead, he asserted that all of Girlfriend's injuries "resulted exclusively from her car accident." Although counsel already knew about a car accident involving Girlfriend, this particular revelation occurred after expiration of the pretrial deadline to identify witnesses. Frustrated, defense counsel declined to alter the defense strategy planned for trial and did not investigate the car accident further. Nevertheless, at trial, defense counsel asked Girlfriend about the accident in an effort to establish that some of the injuries documented in her medical examination could have resulted from the collision. In response, Girlfriend testified that the accident occurred ten days after her sexual assault examination.

         ¶17 Defendant then told defense counsel that insurance claim documentation would contradict Girlfriend's statement about the date of the accident. Before the close of trial, defense counsel received the insurance claim documentation, which appeared to corroborate Defendant's claim regarding the actual date of Girlfriend's accident. From these records, counsel deduced that the accident occurred on the morning of-and prior to- Girlfriend's examination by the physician and not ten days later as she had testified.

         ¶18 Counsel recalled Girlfriend as a witness and once again asked about the date of the accident, allowing her to first refresh her memory by reviewing the insurance claim documentation. For the second time, Girlfriend asserted that the accident occurred ten days after she was examined by the physician. But defense counsel could not impeach her testimony with extrinsic evidence because he could not lay sufficient foundation for the admission of the insurance claim documentation. Consequently, defense counsel abandoned this line of questioning.

         ¶19 Girlfriend's testimony remained consistent at the post-trial evidentiary hearings, where she again testified that the accident occurred ten days after her report of the rape and physical examination. The district court, having considered "all the evidence, as well as the demeanor and credibility of the witnesses" regarding the date of the accident, determined that the accident occurred on the later date-ten days after Girlfriend's medical examination. Addressing contrary evidence, the court ...

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