People v. Lopez.

2024 COA 26. No. 19CA2313. Testimony Concerning the Truthfulness of Another Witness—Opening the Door Doctrine—Preliminary Witness Questions—Response to Jury Question.

March 14, 2024

Lopez was charged with multiple counts of sexual assault on a child and incest concerning his son, daughter, and niece. His defense, which he advanced during voir dire and throughout trial, was that the children’s allegations were due to suggestibility or coaching resulting from the undue influence of their maternal grandmother, who had custody of them. Lopez’s son and daughter underwent forensic interviews about their sexual abuse allegations before trial. The forensic interviewer testified at trial as an expert that she did not see indications of coaching because the children provided experience-based details about the incidents. Lopez was found guilty of sexually abusing all three children and of possessing child pornography.

On appeal, Lopez argued that the trial court erred by admitting the forensic interviewer’s testimony that the children did not appear to have been coached because the testimony vouched for the children’s truthfulness and was thus inadmissible. Coaching testimony is ordinarily inadmissible. However, Lopez opened the door to the testimony by pursuing a defense that the children had been coached to report the abuse. The record clearly establishes that Lopez meant to suggest to the jurors that the allegations resulted from coaching or improper influence by certain identifiable people. Therefore, the district court did not err by admitting the forensic interviewer’s coaching testimony.

Lopez also contended that the trial court erred in responding to the jury’s question about whether it could return verdicts on fewer than all the charges. He maintained that the trial court should have responded “yes” to the question and that by instead referring the jury back to the “separate and distinct charges” instruction, the court gave a coercive instruction, since the jury was deadlocked. However, the court’s decision not to inform the jury that it could hang was within the range of reasonable responses to the jury’s question. Further, it was undisputed that the jury’s note did not indicate a deadlock, and the court’s instruction permitted the jury to find Lopez guilty or not guilty, or fail to reach a verdict, so it was not coercive.

Lastly, Lopez asserted that the court committed reversible error by asking his son, who was 10 years old at the time, preliminary questions before he testified. Lopez maintained that the court’s questions were the functional equivalent of a child competency proceeding rather than an age-appropriate oath, and that conducting the proceeding in front of the jury improperly bolstered his son’s credibility. However, the court’s questions were aimed at determining whether his son could tell the difference between truth and falsehood, so they were part of an age-appropriate oath. And even assuming that some questions resembled a child competency hearing, any error was harmless.

The judgment was affirmed.