Testimony cites circumstantial evidence in trial for condo fire that killed 2 children

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SAN DIEGO -- A forensic fire investigator testified Friday there was no physical evidence that either cigarettes or a defective cell phone caused a fire that killed two children in Rancho Bernardo, but circumstantial evidence supports the theory that a cigarette smoked by the children's father ignited the blaze.

Henry Lopez, 39, is charged in the Oct. 28, 2017, deaths of 7-year-old Isabella Lopez and 10-year-old Cristos Lopez. He faces up to 14 years in prison if convicted of involuntary manslaughter, child endangerment and reckless fire starting.

Prosecutors allege that following a fight with his girlfriend, Lopez got drunk and fell asleep with a cigarette in his hand, sparking a fire in his bed that spread throughout his condominium at around 3:15 a.m.

Lopez's defense attorney, Paul Neuharth Jr., alleges it was more likely that Lopez's iPhone 6 caused the blaze while it was charging beneath Lopez's pillow.

Neither cigarette butts, nor the phone, were found in the remnants of the blaze.

Wayne Whitney, an investigator with the San Diego Fire Rescue Metro Arson Strike Team, said that despite the lack of cigarette butts in the burned bedroom, he was able to make a "reasonable inference" that cigarettes sparked the fire, by way of Lopez's alleged smoking habits.

A glass found within the area where the fire started may have been used as a makeshift ashtray, as prosecutors say a similar glass full of discarded cigarette butts was located in a trash can in the home's garage. However, no cigarette butts were found inside the glass in the bedroom.

Neuharth alleges that the only possible evidence of smoking inside the home came from the defendant's ex-wife, Nikia, who said she once witnessed Lopez smoking marijuana in his bed.

Lopez told investigators he only smoked on his outside patio and never inside the house, particularly due to his son's asthma.

Whitney conceded that the cell phone was a possible cause of the fire, but said he didn't believe it would have ignited the condo fire if it were under Lopez's pillow, as a lack of oxygen would have smothered the blaze and kept it from spreading.

Neuharth emphasized that Whitney came to his conclusion despite no evidence that Lopez smoked in the home that day, while on the other hand, cell phone records proved the phone was in the condo, though it's unknown whether it was in Lopez's bedroom.

Wall outlets and candles in Lopez's bedroom were ruled out as potential causes of the blaze, since they were outside the area where investigators believe the fire began.

Deputy District Attorney Kyle Sutterley alleged in his opening statement that upon waking to the condo ablaze, Lopez tried to save himself, rather than securing the children's safety. According to the prosecutor, Cristos walked into his father's burning bedroom, laid down on the floor and burned to death. Isabella went into her brother's room, laid down on the bottom bunk bed and "fortunately never woke up" after passing out due to smoke inhalation, Sutterley said.

"A parent has a duty to care for, to protect and to sacrifice themselves if need be for their children," Sutterley told jurors in his opening statement. "But on Oct. 28, 2017, the defendant, Henry Lopez, failed the children."

Lopez told investigators he tried to save his children, but Sutterley said Lopez actually walked past his children's bedrooms, down the stairs and punched a first-floor window to try to escape the flames. He then went back upstairs and started pounding on the walls "for some reason," then passed out from the smoke at the top of the stairs, where firefighters later found him, Sutterley said.

A San Diego firefighter testified that upon responding to the home, the front door was locked, but he was able to unlock the door and enter the condo via a broken window nearby. That firefighter also found blood along the stairs, leading fire personnel to Lopez, who was passed out at the top of the staircase.

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