                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Lopez, 2013 IL App (1st) 102938




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CARLOS LOPEZ, Defendant-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-10-2938


Filed                      May 8, 2013


Held                       Defendant’s conviction for the murder of a factory worker in the factory
(Note: This syllabus       parking lot was reversed and the cause was remanded for a new trial on
constitutes no part of     the ground that the trial court improperly admitted evidence concerning
the opinion of the court   an earlier incident in which three of defendant’s codefendants beat a man
but has been prepared      in the same parking lot, since the State only asserted that defendant was
by the Reporter of         near the factory at the time of the earlier incident, there was no evidence
Decisions for the          that he was involved in the earlier beating, and the evidence could have
convenience of the         persuaded the jury that defendant was a bad person and should be
reader.)
                           punished.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-03180; the
Review                     Hon. James B. Linn, Judge, presiding.



Judgment                   Reversed and remanded for new trial.
Counsel on                 Michael J. Pelletier and Emily S. Wood, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Peter Fischer, Assistant State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE HYMAN delivered the judgment of the court, with opinion.
                           Justices Sterba and Pierce concurred in the judgment and opinion.



                                            OPINION

¶1          A jury convicted the defendant, Carlos Lopez, of murder after finding that he and several
        codefendants beat to death a factory employee in the parking lot where the victim worked.
        The trial court sentenced Lopez to 22 years in prison. Lopez contends several errors at trial
        are grounds for reversing his conviction, including the admission of evidence about an attack
        on a man by some of Lopez’s codefendants in the same parking lot about three weeks earlier.
        For the following reasons, we reverse Lopez’s conviction and remand for a new trial.

¶2                                        I. BACKGROUND
¶3           In the early hours of December 24, 2007, Francisco Reyes was beaten and killed by a
        group of men in the parking lot of a tortilla factory in Chicago. Carlos Lopez and five other
        men, Daniel Roman, Martin Roman, Ismael Morales, Omar Morales, and Adolfo Zuniga,
        who lived in the neighborhood, were later arrested and charged with three counts of murder
        and one count of robbery. The State later dropped the robbery charge against Lopez. Before
        trial, defense counsel filed a motion in limine, to exclude evidence regarding an incident on
        December 4, 2007, when three of Lopez’s codefendants beat a man in the factory parking lot
        and smashed car windows. The defense also sought to exclude evidence of Lopez’s gang
        membership. The trial court denied both requests, finding the evidence more probative than
        prejudicial.
¶4           Lopez, who was 15 years old at the time of his arrest, was tried separately from his
        codefendants. The State’s evidence at trial consisted primarily of the testimony of two
        eyewitnesses, Sylvia Ortiz and Fernando Garcia, who saw the murder occur. Ortiz and Garcia
        lived with their son in the second floor of an apartment building across the street from the
        tortilla factory. They said they watched the crime from separate windows of their apartment,
        which faced the parking lot.
¶5           Under the State’s theory of the case, events leading up to the murder began in the early
        morning hours of December 4, 2007. Sylvia Ortiz testified that after arriving home from
        work around 1 a.m., she heard a banging noise outside. She looked out her window and saw


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     three men hitting the factory door with baseball bats. Ortiz recognized all three men, Daniel
     Roman, Martin Roman, and Ismael Morales, because she frequently observed them hanging
     around the neighborhood. When no one opened the factory door, she saw the men break car
     windows in the parking lot. Ortiz called the police, who arrived about 15 minutes later.
¶6       One of the factory employees, Pedro Martinez, testified he arrived at work on the evening
     of December 3 and saw a group of young men, including Lopez, hanging out on the corner
     near the factory. Later that evening, a man whom Martinez had not seen before, came to the
     factory to sell a car jack. The man said a friend was waiting outside. A few minutes later, the
     friend came into the factory. He had been beaten up and his face was bleeding. Loud banging
     on the factory door could be heard, and the two men stayed in the factory until the banging
     stopped. Martinez went outside and saw that his car windows were broken and another car
     was damaged. Martinez saw the same crowd of five or six young men, including Lopez,
     standing on the corner. He testified that he frequently saw these men near the factory when
     he arrived at and left work.
¶7       About three weeks later, on December 24, Ortiz and Garcia were home around midnight
     when they heard a voice outside. They both recognized the person speaking as Daniel
     Roman, who was talking on a cell phone. Ortiz said that Daniel told the person on the phone
     to come over and made a waving motion with his hand. Garcia heard Daniel say “come help
     me, I need to fuck him up, come help me, from the factory, let’s fuck him up.” Soon after,
     Lopez, Ismael Morales, Omar Morales, and Martin Roman arrived. After the men gathered,
     Garcia heard someone say “Let’s get him; let’s fuck him up.” The group walked to the
     factory parking lot where Francisco Reyes was driving a forklift. Juan Ramirez, one of
     Reyes’ coworkers, testified that a supervisor had sent Reyes out to the parking lot shortly
     before the murder to unload a shipment of corn. The group grabbed Reyes off the seat of the
     forklift, forced him to the ground, and began hitting and kicking him. At some point, Adolfo
     Zuniga arrived in a car and joined the others in beating Reyes. As Reyes lay on the ground,
     one of the men removed Reyes’ wallet from his pocket. Then one of the perpetrators went
     across the street and picked up a concrete rock. Garcia testified Ismael Morales dropped the
     rock on Reyes’ head and then Lopez dropped the rock on him a second time. Ortiz also
     testified that a rock was dropped on Reyes’ head, but did not identify who dropped it. After
     striking Reyes with the rock, the men scattered.
¶8       Inside the factory, a supervisor asked Juan Ramirez to check on Reyes because he had
     not returned from unloading the corn. Ramirez found Reyes lying on his back in the parking
     lot and ran back into the factory to call 911. Reyes was taken to a hospital. He died the next
     day. The medical examiner testified that Reyes died of multiple cranial injuries caused by
     blunt force trauma.
¶9       Detectives Roberto Garcia and Peter Maderer investigated the murder. On December 27,
     Fernando Garcia went to the police station and told Detective Garcia what he saw the night
     of the murder. He testified he did not come forward earlier because he feared retribution,
     particularly because the uncle of some of the perpetrators lived in the apartment below his.
     Garcia identified photos of Lopez, Omar Morales, Ismael Morales, Daniel Roman, Martin
     Roman, and Adolfo Zuniga as the perpetrators. Initially, Garcia identified Carlos Lopez’s
     brother as being Carlos, but later identified Carlos as one of the perpetrators. Garcia also

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       viewed three in-person lineups. At the first, he identified Ismael Morales, Daniel Roman,
       Martin Roman, and Adolfo Zuniga as the perpetrators. At the second, he identified Omar
       Morales. At the third, he identified Lopez. At trial, Garcia made an in-court identification of
       Lopez as one of the men who beat Reyes.
¶ 10        On January 1, 2008, Sylvia Ortiz spoke to Detective Garcia at the police station about the
       December 24 murder. She too testified she did not come forward sooner because she was
       afraid. The police showed Ortiz photos. She identified Ismael Morales, Daniel Roman, and
       Martin Roman as three of the perpetrators. Ortiz later viewed three in-person lineups. At the
       first, she identified Ismael Morales, Daniel Roman, and Martin Roman. At the second lineup,
       she identified Omar Morales. At the third lineup, she identified Lopez. She also identified
       him in court.
¶ 11        During the trial, Fernando Garcia testified he believed Lopez and his codefendants were
       members of a street gang, the Latin Kings, because he frequently saw them making gang
       signs and throwing rocks at the cars of rival gang members. During Garcia’s testimony, the
       trial court instructed the jury as follows:
                “This evidence is not to be considered by you–he is not accused of being in a gang.
            That’s not what he’s on trial for, but this evidence is given as it may indicate the
            witness’s basis of his identification. This is how he claims to know who the people are
            that he is suggesting are involved in this matter. It is for the basis of identification and
            possible motive.”
¶ 12        Lopez did not testify or present any witnesses during the trial. Following closing the jury
       deliberated and found Lopez guilty of first degree murder. In his motion for a new trial,
       Lopez argued, in part, the State made prejudicial, inflammatory, and erroneous statements
       in its closing argument and the trial court erred by admitting evidence about the December
       4 incident and Lopez’s gang membership. The trial court denied the motion and sentenced
       Lopez to 22 years in prison. Lopez’s motion to reconsider his sentence was denied. Lopez
       filed this timely appeal.

¶ 13                                        II. ANALYSIS
¶ 14       Lopez raises four issues on appeal, two involving errors by the trial court, two involving
       errors by defense counsel and the prosecutor. The first error deals with the trial court’s
       admission of “other crimes” evidence against Lopez, namely the attack in the tortilla factory
       parking lot on December 4, about three weeks before Reyes’ murder. The other errors
       involve the State’s introduction of evidence of gang membership; the effectiveness of
       defense counsel in presenting a theory in opening statements that she did not support with
       evidence at trial; and the State’s remarks during closing argument about Lopez, the victim,
       and the State’s witnesses. Because we agree with Lopez’s first contention, that the trial court
       erred in admitting other-crimes evidence against him during trial requires reversal and
       remand, we address the first issue only and do not address the remaining three issues.
¶ 15       During Lopez’s trial, two of the State’s witnesses, Sylvia Ortiz and Pedro Martinez,
       testified about the December 4 incident in the factory parking lot. Ortiz testified she saw
       three of Lopez’s codefendants, Daniel Roman, Martin Roman, and Ismael Morales, hitting

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       the factory door with baseball bats and breaking car windows. Martinez testified that a man
       had been beaten up outside the factory, that when the man went inside the factory, there was
       loud banging on the factory door, and that when he later went outside he saw that someone
       had smashed the windows on several cars, including his own. He also testified that he saw
       Lopez hanging out on the corner when he entered the factory that night and later when he
       went to check on his car.
¶ 16        Lopez asserts the trial court erred in permitting any testimony regarding the December
       4 incident, because the State failed to present evidence showing he participated in that attack,
       which is a prerequisite for admitting other-crimes evidence. The State argues the testimony
       about the December 4 incident was properly admitted because Lopez was present when it
       occurred and it was “relevant circumstantial evidence that was part and parcel of the murder
       in that it helped put into context defendant’s behavior and activities.” The State further
       contends even if Lopez was not present, it only needs to show the testimony regarding the
       earlier occurrence was relevant to the question of Lopez’s involvement in the murder and
       robbery.
¶ 17        It is well established that evidence of other crimes or bad acts for which a defendant is
       not on trial is inadmissible if relevant merely to show his or her propensity to commit crimes.
       People v. Thingvold, 145 Ill. 2d 441, 452 (1991). The evidence is admissible, however, if it
       is relevant for other purposes, including to prove the defendant’s motive in the charged
       crime, or his intent, identity, or modus operandi, or the absence of mistake related to that
       crime. Id. When this evidence is offered, the trial court must consider the relevance of the
       evidence for the purpose offered as weighed against the prejudicial impact it could have on
       the defendant. Id.
¶ 18        A defendant’s bad character is not wholly irrelevant to the charges he or she faces in
       court, but because of the nature of this evidence, our courts have established rules regarding
       the admissibility of other-crimes evidence. Because this evidence involves prior bad acts, and
       even criminal acts, the concern is that the evidence will “overpersuade[ ] the jury, which
       might convict the defendant only because it feels he is a bad person deserving punishment.”
       Thingvold, 145 Ill. 2d at 452. Therefore, before this evidence may be admitted and
       considered by the jury, “the State must first show that a crime took place and that the
       defendant committed it or participated in its commission.” (Emphasis in original.) Id. at 455.
       Proof the defendant committed the crime, or participated in its commission, need not be
       beyond a reasonable doubt, but it must be more than a mere suspicion. Id. at 456.
¶ 19        There was no evidence Lopez committed or participated in the commission of the
       December 4, 2007, attack. Pedro Martinez, a factory employee, testified that when he arrived
       at work, he saw Lopez on the corner near the factory and saw him again after going out to
       the parking lot to find his car windows broken. Martinez did not witness the man being
       beaten up, rocks being thrown at the factory door, or the cars being damaged, and therefore,
       he could not and did not testify Lopez was a participant. Sylvia Ortiz, the other witness, saw
       at least part of the incident from her apartment across the street. She identified only three
       perpetrators, Daniel Roman, Martin Roman, and Ismael Morales. She did not identify Lopez
       as a participant.


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¶ 20       The State asserts the trial court did not err in admitting evidence of the December 4
       incident because the evidence was not offered as other crimes evidence but, rather, was
       “relevant circumstantial evidence that was part and parcel of the murder” and was introduced
       to show the motive for the December 24 attack. The State argues there is a distinction
       between intrinsic evidence, i.e., evidence of “course of conduct” leading up to the crime
       charged and extrinsic “other crimes” evidence, which requires proof a defendant committed
       or participated in the uncharged offense before it can be admitted. The State contends
       testimony about the December 4 incident was intrinsic evidence that showed a course of
       conduct resulting in the December 24 murder and, therefore, was not subject to traditional
       other-crimes analysis. For support, the State relies on People v. Manuel, 294 Ill. App. 3d 113
       (1997), and People v. Rutledge, 409 Ill. App. 3d 22 (2011).
¶ 21       In Manuel, defendant was charged with delivering cocaine after he arranged a sale to a
       police informant working with an undercover police officer. Manuel, 294 Ill. App. 3d at 116.
       Over defendant’s objection, the court admitted evidence that defendant had arranged
       previous drug sales with the same police informant. Id. at 123. In challenging his conviction,
       the defendant argued that admission of evidence about drug sales that occurred before the
       one for which he was charged was impermissible because it constituted other-crimes
       evidence. Id. The appellate court affirmed the conviction, finding the evidence did not
       constitute other-crimes evidence unrelated to the charged offense, because the previous drug
       sales were precursors to the actual crime and provided context. Id. at 123-24. Even though
       the earlier sales were not part of the drug sale for which the defendant was charged, they
       “were a necessary preliminary to the current offense.” Id. at 124. Therefore, evidence of the
       previous drug sales was subject only to ordinary relevancy analysis. Id. Applying those
       principles, the appellate court found “the evidence was relevant to show Manuel’s course of
       conduct and his illicit relationship” with the informant. Id.
¶ 22       Rutledge followed the same reasoning. In Rutledge, defendant was sitting with a woman
       in a car parked in an alley; he was intoxicated and became angry when the woman refused
       his sexual advances. Rutledge, 409 Ill. App. 3d at 23. Defendant began hitting the woman,
       who got out of the car and ran to a man standing in his open garage. Id. Defendant
       approached, and the man identified himself as a police officer. Id. Defendant struck the
       police officer and was arrested. Id. at 24. Defendant appealed his conviction arising from the
       physical assault of the officer, arguing it was plain error to admit evidence he struck the
       woman in the car because it was a prior crime. Id. at 25. The appellate court found the
       contested evidence was properly admitted, noting evidence of another crime is admissible
       when it is “inextricably intertwined” with the crime charged. Id. at 25-26. The evidence of
       defendant’s actions toward the woman was necessary to show he was “drunk and angry,”
       which tended to explain the events leading up to the altercation with the officer. Id. Without
       that evidence, the jury would have been left with no explanation for the defendant’s behavior.
       Id. at 26.
¶ 23       The State asserts Manuel and Rutledge support a finding that evidence of the December
       4 attack was admissible at trial to provide context for the seemingly random murder of Reyes
       on December 24. In short, the State argues Lopez and his friends were seeking retaliation
       against the factory employees for sheltering the man they were attacking on December 4.

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       Therefore, the State contends, evidence of the earlier attack was inextricably intertwined with
       the December 24 murder and was subject only to ordinary relevancy analysis.
¶ 24        Manuel and Rutledge are distinguishable, however. In both cases, there was no doubt the
       defendants participated in the earlier crime. Therefore, the initial threshold for admission of
       other-crimes evidence was met. Here, the trial testimony established an essential difference,
       that is, at most, Lopez was in the vicinity of the factory before and after the incident; no
       witnesses identified him as a participant.
¶ 25        The State counters that the holding in People v. Morales, 2012 IL App (1st) 101911,
       supports a finding that evidence about the December 4 incident was admissible regardless
       of whether Lopez was a participant. Morales was an appeal by one of Lopez’s codefendants
       following his conviction for the murder and robbery of Reyes. Like Lopez, Morales argued
       the December 4 attack should not be admitted into evidence because there was insufficient
       proof he was involved in that incident. In Morales, unlike in this case, one witness, Fernando
       Garcia, testified Morales was present in the factory parking during the December 4 incident.
       Morales, 2012 IL App (1st) 101911, ¶ 4. Garcia wavered on cross-examination, however,
       stating he was not certain Morales was present that night. Id. The appellate court found
       “Garcia’s testimony was sufficient to put the defendant’s participation in the December 4
       incident before the jury.” Id. ¶ 32. Therefore, the threshold requirement for other-crimes
       evidence, defendant’s participation in the prior crime, was established. Relying on Manuel
       and Rutledge, the Morales court then reasoned that if the evidence sought to be admitted
       could be considered “part of the ‘course of conduct’ leading up to the crime charged, then
       it constitutes intrinsic evidence of the charged offense and its admissibility is not analyzed
       as ‘other crimes’ evidence, requiring proof that the defendant committed or participated in
       the uncharged offense.” Id. ¶ 25 (citing Manuel, 294 Ill. App. 3d at 124). Instead, the
       evidence is admissible under the more general, and lower threshold, principles of ordinary
       relevance. Morales, 2012 IL App (1st) 101911, ¶ 24. Based on this reasoning, the Morales
       court found the evidence of the earlier factory attack was properly admitted against the
       defendant as intrinsic to the subsequent murder by providing a context for that crime. See id.
       ¶¶ 30-32.
¶ 26        The Morales court, however, went further and held the evidence would have been
       admissible whether or not defendant was present or participated in the previous incident.
       Morales, 2012 IL App (1st) 101911, ¶ 32. The court stated “[n]o such showing was required
       because the contested evidence was not ‘extrinsic’ to the murder and robbery charges against
       the defendant.” Id. The showing that some of the same individuals were involved in the
       December 4 and the December 24 incidents was sufficient for admission of the contested
       evidence. “In other words, even if the evidence of the December 4 incident established that
       the defendant was not present, the jury was free to infer, based on the evidence before it, that
       the defendant took part in the murder and robbery to help his friends avenge their vendetta
       against the employees of the tortilla factory.” Id.
¶ 27        The State urges this court to apply the holding in Morales to find that even absent
       evidence Lopez was present during the December 4 incident, the evidence was admissible
       to establish the motive for the December 24 attack. There appears to be a split of opinion in
       this court, however, as to whether other-crimes evidence is admissible to show a course of

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       conduct leading up to a later crime, if the defendant did not participate in the earlier crime.
       Although the Morales court found the other-crimes evidence was admissible because it was
       relevant to show motive for the later crime, in People v. Pikes, 2012 IL App (1st) 102274,
       appeal allowed, No. 115171 (Ill. Jan 30, 2013), another division of this court reached the
       opposite conclusion.
¶ 28       In Pikes, the defendant was charged with first degree murder for a drive-by shooting at
       a group of rival gang members that killed one man. Before trial, the State made a motion to
       introduce evidence against both Pikes and his codefendant of an earlier shooting committed
       by codefendant. Pikes, 2012 IL App (1st) 102274, ¶ 4. As described in that motion, in the
       days before the drive-by shooting, a member of the Gangster Disciples street gang was riding
       a motor scooter when codefendant, a member of the Four Corner Hustlers street gang, shot
       at him. Id. Immediately afterward, a car driving behind the scooter struck the codefendant.
       Pikes argued that codefendant’s shooting at the scooter should not be admitted as to him,
       since he was not present when it occurred. Id. While acknowledging that it was “unaware of
       any evidence that [defendant] was present at the time of the shooting,” the State argued that
       this incident was relevant and admissible against both defendant and codefendant to show
       motive for the murder. Id. The trial court agreed with the State and admitted evidence of the
       incident against defendant and codefendant, finding that it was “extremely relevant[,] by far
       more probative than prejudicial” and “[w]ill help the jury understand the context” of the
       instant cause. (Internal quotation marks omitted.) Id. A jury convicted Pikes of first degree
       murder. Id. ¶ 17.
¶ 29       In appealing his conviction, Pikes argued, in part, that the trial court erred in admitting
       evidence of the scooter shooting against him since he was neither present nor involved in that
       other crime and that because the evidence was highly prejudicial, reversal was required.
       Pikes, 2012 IL App (1st) 102274, ¶ 23. The Pikes court held that because the State admitted
       it had no evidence Pikes was even present at the scooter shooting, let alone a participant, it
       failed to meet the threshold requirement for admission of other crimes evidence, defendant’s
       involvement beyond a mere suspicion. Pikes, 2012 IL App (1st) 102274, ¶ 27.
¶ 30       The court also rejected the State’s argument that Morales supported a finding that the
       evidence of the scooter shooting was admissible because it was not offered as other crimes
       evidence but, rather, only as relevant evidence of defendant’s motivation in the victim’s
       murder. Pikes, 2012 IL App (1st) 102274, ¶ 29. The court found Morales was factually
       distinguishable and that it carved out a “tenuous” exception to the rule regarding other crimes
       evidence. Id. ¶ 36. The court agreed that under Manuel and Rutledge, prior intrinsic incidents
       could be admitted under simple relevancy principles rather than requiring the higher
       threshold of proof for other crimes evidence. Id. ¶ 41. But, the court asserted, “what is
       dangerous about Morales is that it attempts to expand these holdings to cases where it is
       unclear whether the defendant participated in the prior acts.” Id. ¶ 42. Where “there was no
       question that the defendants committed the prior acts sought to be introduced,” the court said,
       “[w]e have no problem *** with the lower relevancy threshold.” Id. ¶ 41. In light of
       Thingvold and other supreme court cases, however, the court found it could not follow
       Morales to find other crimes evidence admissible where the State failed to show beyond a
       mere suspicion that defendant was involved or participated in that crime. Id. ¶ 42. The Pikes

                                                -8-
       court noted that although the Morales court seemed to think such a distinction was irrelevant,
       “it still went out of its way several times to highlight the eyewitness testimony regarding the
       defendant’s presence at the prior attack.” Id. The court found that where the State conceded
       the defendant had not participated or been involved in the previous shooting incident, the
       evidence was inadmissible and a basis for reversing the defendant’s conviction and
       remanding for a new trial. Id. ¶ 45.
¶ 31        We agree with the better reasoned and less circumstantial approach in Pikes that absent
       a showing, beyond a mere suspicion, that a defendant was a participant in a previous crime
       or bad act, evidence about that crime is inadmissible. During oral arguments, the State
       asserted that Lopez’s presence near the factory before and after the December 4 incident
       permitted the trial court to draw the inference he was involved in that crime. We disagree.
       The requirement set out in Thingvold is that the State must show the defendant committed
       or participated in the commission of the earlier crime. Thingvold, 145 Ill. 2d at 452. Mere
       suspicion may result in a defendant being subjected to peril for something that he had
       nothing to do with or knew anything about. Here that standard was not met, as the State
       presented no evidence that Lopez participated in the December 4 attack.
¶ 32        The State further suggested during oral arguments that if Lopez was not involved in the
       December 4 incident, he is not harmed by its admission into evidence and, therefore, this
       court should not reverse on that basis. As noted above, the problem with admitting other-
       crimes evidence is that it may overpersuade the jury that a defendant is a bad person who
       deserves punishment. Here, there is a strong possibility that the testimony regarding the
       December 4 incident, along with the State’s introduction of testimony regarding Lopez’s
       membership in a gang, could have persuaded the jury that Lopez was a bad person who
       should be punished. Because the State failed to show beyond a mere suspicion that Lopez
       was involved in the December 4 incident, the trial court erred in permitting the State to
       present that evidence. Therefore, we reverse Lopez’s conviction and remand for a new trial.

¶ 33                                     III. CONCLUSION
¶ 34       For the reasons set forth above, we reverse Lopez’s conviction and remand his cause for
       a new trial, as provided in this decision.

¶ 35      Reversed and remanded for new trial.




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