District Court, Provo Department The Honorable Claudia
Laycock No. 131403285
Douglas J. Thompson and Margaret P. Lindsay, Attorneys for
D. Reyes and John J. Nielsen, Attorneys for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges Kate Appleby and Diana Hagen concurred.
CHRISTIANSEN FORSTER, JUDGE:
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.
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.
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
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.
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.
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
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.
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.
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
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.
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.
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.
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.
Theory of the Case and the Car Accident
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. 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.
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.
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.
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.
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.
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