The Colorado Supreme Court ruled on Monday that a text message exchange between the father of an alleged child sex assault victim and the defendant was not coercive, even though a sheriff’s investigator was guiding the accusatory texts.

Patrick Nkongolo stands accused of five counts of sexual assault on a child. His alleged victim told a therapist that Nkongolo molested her beginning at age 11, which the therapist in turn reported to Arapahoe County.

As part of the investigation, a sheriff’s employee had the girl’s father initiate a text message conversation with Nkongolo. “Pretext calls,” as they are known, allow victims to talk with a suspect under the supervision of police, with the aim of uncovering incriminating information without the suspect being aware of law enforcement’s involvement.

On Nov. 15, 2023, the father texted Nkongolo with the sheriff’s investigator present. Among other things, the father said his daughter had made allegations that were sexual in nature. Nkongolo responded the contact amounted to “a hug” and “jokes.”

The father then wrote, “Tell me exactly what happened. We have to keep it in the family. But if you only tell me that you only kiss (her) once I don’t think I trust what you’re telling me. I can’t keep this in the family. I need the truth to see what we can do to keep this in the family.”

The father continued to raise specific allegations and demanded confirmation from Nkongolo. Nkongolo acknowledged giving the girl “a little friendly kiss,” but otherwise denied engaging in further contact. The father ended by implying he would speak with law enforcement.

After prosecutors brought charges, the defense moved to exclude the text exchange as evidence, arguing the father was acting as an agent of police and obtained Nkongolo’s statements through coercion.

Following a hearing, District Court Judge David Karpel agreed with the defense. In particular, he found “on several occasions, there were promises made” — specifically, the father’s statements that “we have to keep it in the family.”

That “is at least an implied promise that ‘If you tell me what happened, we won’t go to law enforcement’,” Karpel said. “I find that based on those factors, his will was overborne to the extent to make the text exchanges on that date involuntary.”

The district attorney’s office appealed directly to the Supreme Court, suggesting pretext conversations will “rarely, if ever” be coercive because the suspect does not know the other person is working with law enforcement.

“The law forbids coercion, not the strategic deception of taking advantage of a suspect’s misplaced trust,” wrote Deputy District Attorney Laura Wood. Moreover, “Nkongolo never admitted to the alleged conduct or indicated he was willing to say more than he had previously said,” suggesting there was no coercion.

The defense responded that Nkongolo did admit to some physical contact, if not to the allegations made by the victim. Moreover, his attorney urged the court to reject the prosecution’s assertion that pretext calls will “rarely, if ever” be coercive.

“Any holding from this Court expressing such invites opportunities for abuse by police to obtain potentially inculpatory statements from suspects by using an intermediary to engage in conduct that would be illegal if law enforcement personnel directly did so,” wrote Adam M. Tucker.

In its May 12 opinion, the Supreme Court declined to adopt that broad principle. Instead, it nodded to Karpel’s finding that there was a promise made to Nkongolo during the pretext conversation, but believed the promise was not coercive.

“An officer’s repeated exhortations for a suspect to be honest don’t necessarily overbear a defendant’s free will,” wrote Justice William W. Hood III. “And Nkongolo never changed his story, maintaining throughout the conversation that he had just been joking around. So, it’s clear that neither (the) implied promises, nor the circumstances as a whole, overbore Nkongolo’s will or induced him to speak.”

The case is People v. Nkongolo.