People v. Fortson

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 5, 2018
2018COA46
No. 15CA413, People v. Fortson ― Crimes ― Sexual Assault on a
Child; Evidence ― Character Evidence ― Other Crimes Wrongs
or Acts; Criminal Law ― Prosecutorial Misconduct
In this appeal of a conviction for sexual assault on a child, a
division of the court of appeals considers whether the prosecutor
engaged in significant misconduct that deprived the defendant of a
fair trial.
The majority concludes that the prosecutor committed
misconduct when she repeatedly introduced, referenced, and
argued to the jury that the defendant previously committed
uncharged sexual assaults against four other girls and the victim.
The prosecutor did not seek the admission of the alleged uncharged
sexual assaults for a proper purpose under section 16-10-301,
C.R.S. 2017, CRE 404(b), or Spoto, and then improperly used this
evidence for propensity purposes. Therefore, the majority
concludes reversal is required.
The special concurrence agrees that the prosecutor engaged in
serious misconduct, but would reverse when considering the
prosecutorial misconduct in conjunction with the improper use of
expert testimony. The dissent would affirm.
COLORADO COURT OF APPEALS 2018COA46
Court of Appeals No. 15CA0413
Fremont County District Court No. 13CR376
Honorable Patrick W. Murphy, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricardo Lee Fortson,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE LICHTENSTEIN
Berger, J., specially concurs
Webb, J., dissents
Announced April 5, 2018
Cynthia H. Coffman, Attorney General, Marissa R. Miller, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found Ricardo Lee Fortson guilty of one count of sexual
assault on a child based on alleged sexual intercourse with a
fourteen-year-old girl, J.W. (Count One), and one count of sexual
assault on a child as a part of a pattern of abuse based on alleged
oral sex with her (Count Two).
¶2 Fortson contends on appeal that the prosecutor engaged in
prejudicial misconduct throughout the trial by eliciting and
referencing two categories of other uncharged sexual acts as
propensity evidence: sexual acts Fortson allegedly committed on
other children, and sexual acts Fortson allegedly committed against
J.W. prior to the two charged incidents.1 At trial, defense counsel
failed to object to all but one instance of misconduct.
1 Fortson also alleged that the prosecutor improperly (1) vouched for
the credibility of the prosecution’s DNA expert; (2) denigrated the
defense’s DNA expert; (3) misstated the DNA evidence; (4) vouched
for the truthfulness of J.W.; and (5) argued that a witness favorable
to the defense had been “coached.”
We only address the alleged instances of prosecutorial misconduct
involving references to uncharged sexual assaults by Fortson
because the repeated nature of this misconduct requires reversal
irrespective of the propriety of the other alleged instances of
misconduct. Wend v. People, 235 P.3d 1089, 1102 n.6 (Colo. 2010).
1
¶3 The central issue on appeal is whether this pervasive
misconduct so infected the jury’s consideration of the evidence that
we cannot deem the guilty verdict reliable.
¶4 We conclude that it did; therefore, we reverse the convictions
and remand for a new trial.
I. Background
¶5 The jury heard the following evidence at trial pertaining to the
two charged incidents.
¶6 As to Count One: when J.W. was fourteen years old, she spent
the night at her friend B.B.’s house where Fortson also was staying.
After watching a movie with her friend’s family, everyone went to
bed except J.W. and Fortson. J.W. testified that, when only the two
of them were present, Fortson had sexual intercourse with her.
¶7 The next day, J.W. went to a pregnancy crisis center with her
mother and told a counselor at the center that she had had sexual
intercourse with Fortson the night before. As required by law, the
counselor reported this allegation to the police.
¶8 J.W. also participated in a series of interviews. While J.W.
consistently maintained that she had sexual intercourse with
Fortson on the night in question, other details regarding her
2
contacts with Fortson were inconsistent and disputed by other
witnesses. There was no male DNA in a vaginal swab taken from
J.W. Two DNA experts agreed there was male DNA on J.W.’s
underwear, but disagreed as to whether the DNA came from semen.
They also disagreed about the significance of the conclusion that
Fortson could not be excluded as a possible source.
¶9 As to Count Two: only during one interview did J.W. allege
that on a prior occasion Fortson performed oral sex on her. She
said the incident happened in the backyard of B.B.’s house. The
prosecution did not offer any physical evidence or any eyewitnesses
to corroborate this allegation.
¶ 10 But the prosecutor did offer ― without advance notice to the
court or Fortson ― evidence that Fortson previously committed
uncharged sexual assaults against four other girls, and intimated
during opening statement and closing argument that Fortson likely
committed prior uncharged sexual assaults against J.W. With one
exception, defense counsel did not object to what Fortson now
alleges on appeal is prosecutorial misconduct.
¶ 11 Fortson testified at trial, and denied the allegations. As noted
above, the jury found Fortson guilty of both charges.
3
II. Prosecutorial Misconduct
A. Standard of Review
¶ 12 In reviewing claims of prosecutorial misconduct, we engage in
a two-step analysis. First, we determine whether the prosecutor’s
conduct was improper based on the totality of the circumstances.
Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). Second, we
consider whether such actions warrant reversal according to the
proper standard of review. Id.
B. Relevant Law
1. Role and Conduct of Prosecutor
¶ 13 “A prosecutor has the responsibility of a minister of justice
and not simply that of an advocate.” People v. Robinson, 2017 COA
128M, ¶ 13; Colo. RPC 3.8 cmt. 1. Accordingly, a prosecutor must
refrain from improper methods calculated to produce a wrongful
conviction. Id. at ¶ 14; Harris v. People, 888 P.2d 259, 263 (Colo.
1995).
¶ 14 In this vein, it is improper for a prosecutor to make remarks
that evidence personal opinion, personal knowledge, or inflame the
passions of the jury. Domingo-Gomez v. People, 125 P.3d 1043,
1050 (Colo. 2005). It is also improper for a prosecutor to
4
purposefully ask a question which he or she knows will elicit an
inadmissible answer. People v. Oliver, 745 P.2d 222, 228 (Colo.
1987); Am. Bar Ass’n, Fourth Edition of the Criminal Justice
Standards for the Prosecution Function 3-6.6(d) (Feb. 2015),
https://perma.cc/72EP-TWAY (A “prosecutor should not bring to
the attention of the trier of fact matters that the prosecutor knows
to be inadmissible, whether by offering or displaying inadmissible
evidence . . . .”).
¶ 15 When a prosecutor purposefully exposes the jury to
inadmissible and highly prejudicial evidence, such conduct will not
be condoned, and a new trial may be granted. People v. Dist. Court,
767 P.2d 239, 241 (Colo. 1989).
2. Admission of Other Sexual Acts Evidence
¶ 16 In order to introduce evidence of a defendant’s other sexual
acts, a prosecutor must advise the court and defense counsel in
advance of trial of the other acts he or she intends to introduce at
trial. See People v. Warren, 55 P.3d 809, 812 (Colo. App. 2002);
§ 16-10-301(4)(a), C.R.S. 2017 (“[T]he prosecution shall advise the
trial court and the defendant in advance of trial of the other act or
5
acts and the purpose or purposes for which the evidence is
offered.”).
¶ 17 The dissent takes issue with the majority’s citation to this
governing statute because it was not expressly cited by the parties.
However, we have an obligation to resolve issues by identifying and
applying the correct law. See Kamen v. Kemper Fin. Servs., Inc., 500
U.S. 90, 99 (1991) (“When an issue or claim is properly before the
court, the court . . . retains the independent power to identify and
apply the proper construction of governing law.”).
¶ 18 In any event, in his opening brief, Fortson expressly cited
Warren, 55 P.3d 809, for the legal proposition that prosecutors are
bound by the pretrial notice requirement. Warren clarified that this
notice requirement is solely a statutory requirement under section
16-10-301(4)(a) and, thus, applies only to other sexual act evidence.
Id. at 812.
¶ 19 In addition to providing pretrial notice, a prosecutor must
establish to the court, by a preponderance of the evidence, that the
other act did occur and that the defendant committed the act. See
People v. Garner, 806 P.2d 366, 373-74 (Colo. 1991); see also § 16-
10-301(4)(b).
6
¶ 20 Because evidence of a defendant’s prior sexual assaults is not
permissible to establish propensity, a prosecutor may not elicit
other act evidence to prove a defendant’s bad character and that he
acted in conformity with that character. People v. Nardine, 2016
COA 85, ¶ 79; see CRE 404(b); § 16-10-301(3). Such evidence may
be admissible only for other purposes, including to show motive,
opportunity, intent, preparation, common plan, method of
operation, knowledge, identity, or absence of mistake. CRE 404(b).
¶ 21 Thus, prior to eliciting such evidence a prosecutor must
demonstrate that (1) the evidence relates to a material fact; (2) the
evidence is logically relevant; (3) the logical relevance is independent
of the intermediate inference that the defendant committed the
crime because he or she acted in conformity with his or her bad
character; and (4) the evidence’s probative value is not substantially
outweighed by the danger of unfair prejudice. People v. Spoto, 795
P.2d 1314, 1318 (Colo. 1990). “The prosecution must articulate a
precise evidential hypothesis by which a material fact can be
permissibly inferred from the prior act independent of the use
forbidden by CRE 404(b).” Id. at 1319.
C. The Conduct Was Improper
7
¶ 22 Fortson contends on appeal that the prosecutor improperly
referenced and elicited evidence of other acts of sexual assault and
sexual misconduct for propensity purposes, and that she did so
without first seeking to admit the evidence, presenting an offer of
proof, or obtaining a ruling. We agree with Fortson that this
conduct was improper.
¶ 23 The Attorney General does not dispute that the prosecutor
introduced the other sexual act evidence and did so without
providing notice, making any offer of proof, articulating an
evidential hypothesis for admissibility, or obtaining a ruling under
the four-part Spoto test. She argues only that the other act
evidence was not offered for an improper purpose, and thus there
was no error.
¶ 24 But here, the prosecutor repeatedly brought before the jury
uncharged acts of sexual assault, specifically that Fortson had
previously committed other uncharged sexual assaults against
other children and against J.W. We agree with Fortson that the
prosecutor’s failure to follow the requisite procedures and her
improper use of this evidence for propensity purposes ― as
discussed in detail below ― constituted misconduct.
8
¶ 25 We are further compelled to conclude ― for the reasons that
follow ― that the prosecutor’s misconduct requires reversal of
Fortson’s convictions. “For, above all, it is the appellate court’s
responsibility to avoid a miscarriage of justice for a defendant even
when defense counsel seriously lapses at trial.” Wend, 235 P.3d at
1097.
1. Uncharged Sexual Assaults Against Other Children
¶ 26 During trial, the prosecutor elicited evidence of alleged
uncharged sexual assaults against four other girls: A.C., B.B., S.L.,
and A.B., as well as vague allegations of acts committed against
“other kids.”
a. Cross-Examination of A.K.
¶ 27 Fortson called A.K. (J.W.’s former friend) as a defense witness
to testify that J.W. had told her about her motive to falsely accuse
Fortson of sexual assault. A.K. testified that J.W. said she was
angry because Fortson had declined her sexual advances, thus J.W.
was “going to make him regret it and she was going to get her
revenge.”
¶ 28 The prosecutor then cross-examined A.K., first asking relevant
questions that challenged the testimony about J.W.’s motive. The
9
prosecutor asked A.K. whether J.W. had, in fact, told her that
Fortson put his hand up the leg of J.W.’s shorts, was rubbing
around and smiling at her (rather than declining J.W.’s sexual
advances). And the prosecutor asked whether J.W. had told A.K.
that she did not want to get Fortson in trouble with the police
because he worked for the prison (rather than trying to get revenge).
¶ 29 But then, the prosecutor started asking A.K. questions
unrelated to J.W.’s allegations or motive. The prosecutor asked
about statements that A.K. had made to a forensic interviewer
relaying what other girls had told her. A.K. told the interviewer that
these other girls also accused Fortson of improper sexual conduct.
Prosecutor: Do you recall telling [the
interviewer] that B.B. told you that at one time
[Fortson] was changing his clothes, asked her
to bring in his laptop; and when she did, she
walked in the room and he -- she dropped the
laptop because he was completely naked?
A.K.: No, ma’am.
....
Prosecutor: Do you recall telling [the
interviewer] that another girl by the name of
S.L. had told you that Mr. Fortson touched
her, also?
A.K.: No, ma’am.
10
Prosecutor: Do you recall telling [the
interviewer] that S.L. said that Mr. Fortson put
his hand on her knee and moved it up towards
her private?
A.K.: No, ma’am.
....
Prosecutor: Do you recall telling [the
interviewer] that another girl by the name of
A.B. had told you that Mr. Fortson had
touched her the same way that he did with
[J.W.]?
A.K.: No, ma’am.
¶ 30 At this point, the trial court interrupted the questioning and
admonished the prosecutor for referring to inadmissible CRE 404(b)
evidence, stating this evidence was “not allowable.”
¶ 31 We agree with the trial court that the prosecutor’s questions
elicited inadmissible CRE 404(b) evidence. And we conclude that
such conduct was “manifestly improper.” People v. Estep, 196 Colo.
340, 344, 583 P.2d 927, 930 (1978); see also Standards for the
Prosecution Function 3-6.6(d) (“The prosecutor should not bring to
the attention of the trier of fact matters that the prosecutor knows
to be inadmissible . . . by . . . asking legally objectionable
questions.”).
11
¶ 32 Even though A.K. responded that she did not remember
making the statements, the prosecutor’s questions themselves
assumed, or asked the jury to infer, that Fortson had committed
other uncharged sexual crimes. For example, in People v. Estep,
the prosecutor asked a witness: “You never were with [the
defendant] when he was in the process of killing somebody, were
you?” 196 Colo. at 344, 583 P.2d at 930. An objection was
launched before the witness could answer. Nonetheless, the
Colorado Supreme Court concluded that “[s]uch expressions by the
prosecutor are a form of unsworn, unchecked testimony and tend to
exploit the influence of his office and undermine the objective
detachment which should separate a lawyer from the cause for
which he argues.” Id. (quoting ABA, Standards Relating to the
Prosecution Functions § 5.8(b) (Commentary)).
¶ 33 Likewise, just by asking A.K. these questions, the prosecutor
essentially elicited inadmissible CRE 404(b) evidence. See id.; see
also Oliver, 745 P.2d at 228 (prosecution’s conduct in asking an
objectionable question was error).
¶ 34 We are not persuaded by the Attorney General’s assertion that
this conduct was permissible because the prosecutor was “planning
12
to impeach A.K.’s credibility by asking her these questions, eliciting
denials, and then showing the jury the video of A.K.’s actual
interview.”
¶ 35 The prosecutor’s questions about uncharged sexual crimes
against other children were irrelevant to impeach A.K.’s direct
examination testimony, which only addressed A.K.’s relationship
with J.W. and J.W.’s desire to “get revenge” against Fortson.
¶ 36 Even if ― as the Attorney General notes with record support ―
the prosecutor “was planning to impeach A.K.’s credibility by asking
her these questions,” this impeachment tactic was clearly improper.
¶ 37 The prosecutor’s plan was to ask legally objectionable
questions to elicit the highly prejudicial inadmissible evidence of
Fortson’s uncharged sexual acts (and only then, to impeach A.K.’s
faulty memory about such evidence). This, the prosecutor is not
permitted to do. See Oliver, 745 P.2d at 228; see Dist. Court, 767
P.2d at 241 (“When a prosecuting attorney purposefully exposes the
jury to inadmissible and highly prejudicial evidence, his conduct
will not be condoned[.]”); see also State v. Prine, 200 P.3d 1, 11
(Kan. 2009) (a party cannot open its own door to create an
opportunity for the admission of otherwise inadmissible evidence).
13
¶ 38 The dissent does not view the prosecutor’s conduct as
improper. Rather, the dissent asserts that “the prosecutor was
doing just as CRE 613(a) requires,” infra ¶ 165, and suggests,
therefore, that the prosecutor’s contemplated impeachment was not
subject to the strictures of CRE 404(b). We do not agree. CRE
613(a) simply sets forth the procedure for proper impeachment of a
witness with that witness’ prior inconsistent statements; it does not
permit, much less address, the permissible uses of other act
evidence.
¶ 39 The permissible uses of other act evidence is governed by CRE
404(b) (as substantive evidence), and by CRE 608 (as impeachment
evidence). See People v. Segovia, 196 P.3d 1126, 1132 (Colo. 2008)
(holding that, under CRE 608, inquiry on cross-examination into a
witness’ prior shoplifting was admissible to impeach that witness’
testimony that she was “honest”).
¶ 40 Here, the prosecutor did not use a specific instance of A.K.’s
conduct to impeach her. Rather, the prosecutor asked about
specific instances of Fortson’s sexual conduct against other
children, which was not a permissible use of uncharged sexual act
evidence, under either CRE 404(b) or CRE 608.
14
¶ 41 Because the prosecutor intentionally brought inadmissible
evidence of Fortson’s bad character to the jury’s attention by
cross-examining A.K. about Fortson’s alleged uncharged sexual
acts, the prosecutor engaged in misconduct and disregarded her
duty to refrain from improper methods calculated to produce a
wrongful conviction. Harris, 888 P.2d at 263; Robinson, ¶ 14.
b. Other Act Allegations in Video Recording
¶ 42 Compounding this error, the prosecutor played for the jury the
very end of the video recording of J.W.’s forensic interview, where
the forensic interviewer ultimately asked J.W. what she wanted to
happen to Fortson. J.W. told the interviewer that she wanted him
caught because another girl, A.C., “got raped” by Fortson, that
Fortson had “hurt more kids than me,” that he had “raped other
kids,” and that B.B. told her “this was not the first time he did this.”
¶ 43 For reasons that are inexplicable to us, defense counsel did
not request the redaction of these statements, even though they
portrayed Fortson as a sexual predator of children and risked a
guilty verdict based on a conclusion that Fortson sexually assaulted
J.W. in conformity with his bad character. See CRE 404(b).
15
¶ 44 Yet even without objection, it is improper for a prosecutor to
knowingly, and for the purpose of bringing inadmissible matter to
the attention of the judge or jury, offer inadmissible evidence. See
People v. Mullins, 104 P.3d 299, 301-02 (Colo. App. 2004) (finding
plain error where prosecutor elicited inadmissible testimony); see
also Standards for the Prosecution Function 3-6.6(d).
¶ 45 The dissent opines that defense counsel may have wanted the
jury to hear this evidence, given his earlier request that the entire
video be played. But that request must be placed in context: it was
made in response to the prosecutor’s rape shield motion. Defense
counsel argued against the redaction of J.W.’s statement that she
had been having sex with her boyfriend. Citing the “rule of
completeness,” see CRE 106, defense counsel requested the entire
video be played to prevent the suppression of this exculpatory
information.
2. Uncharged Sexual Assaults Against J.W.
¶ 46 Not only did the prosecutor elicit the above referenced other
sexual act evidence, but also, during the prosecutor’s opening
statement and closing argument, she expressed her belief that
16
Fortson committed other uncharged sexual assaults against J.W.
This, too, was improper.
a. Opening Statements
¶ 47 During her opening statement, the prosecutor told the jury, “I
can’t tell you that [the two charged instances of sexual assault] are
the only incidents that occurred of Fortson sexually assaulting
[J.W.], but I can tell you that these are the two clearest incidences
that she, thus far, has been willing to talk about.” This remark to
the jury was impermissible.
¶ 48 A prosecutor must not “intimate that she has personal
knowledge of evidence unknown to the jury.” Domingo-Gomez, 125
P.3d at 1049. The prosecutor’s statements implied that she knew of
other instances in which Fortson had sexually assaulted J.W., but
that J.W. could not, or would not, be telling the jury about them.
Such remarks conveyed that the prosecutor had additional
incriminating evidence unknown to the jury. See id. at 1052.
¶ 49 The prosecutor’s remark is a “matter of special concern”
because there is a “possibility that the jury will give greater weight
to the prosecutor’s arguments because of the prestige associated
17
with the office and the presumed fact-finding capabilities available
to the office.” Id. at 1049.
¶ 50 Further, a prosecutor may not, in an opening statement,
“induce the jury to determine guilt on the basis of passion or
prejudice.” People v. Manyik, 2016 COA 42, ¶ 27 (quoting People v.
Douglas, 2012 COA 57, ¶ 66). Nor may she appeal to the jurors for
sympathy for the victim. Id. at ¶ 29.
¶ 51 Yet here, the prosecutor improperly suggested to the jury that
Fortson had sexually assaulted J.W. not only on the two occasions
charged, but also on other occasions. This implied that Fortson
was a serial sexual abuser, and also that J.W. was victimized by
additional instances of sexual abuse, thereby prejudicing the jurors
against Fortson and appealing to their sympathies for J.W. Id.; see
also Domingo-Gomez, 125 P.3d at 1052-53 (A prosecutor’s
comments which express the prosecution’s personal opinion or
personal knowledge or remarks that inflame the passions of the
jury “can tip the scales towards an unjust conviction and must be
avoided.”).
¶ 52 The dissent suggests that the prosecutor’s opening statement
may have been referring to J.W.’s forensic interview, during which
18
J.W. referenced what the dissent refers to as other “misconduct.”
But in that interview, other than describing the charged incident,
J.W. said only that Fortson had previously touched her legs. As the
forensic interviewer confirmed in her trial testimony, the charged
incident of sexual intercourse was the only disclosure of sexual
assault J.W. made in that interview.
b. Closing Argument
¶ 53 During closing argument, the prosecutor argued repeatedly
that the jury could consider, as evidence of Fortson’s guilt,
uncharged prior sexual assaults.
¶ 54 The prosecutor argued to the jury:
And I would also tell you, it doesn’t make any
sense at all that that incident in the backyard
[involving oral sex] was the first incident. The
first incident of sexual abuse is not going to be
Lee Fortson taking her out in the backyard
and licking her vagina, it’s just not. There’s
going to be other incidents –
¶ 55 At this point, defense counsel objected, on the basis that the
prosecutor was “saying that there are other incidents other than
those charged.” The court responded, “All right. You did say that
earlier, [prosecutor], and the jury needs to be very clear.” It then
instructed the jury:
19
Count number 1, the sexual assault on a
child, pattern of abuse, relates only to two
incidents: the alleged licking of the vagina and
the alleged sexual assault in [B.B.’s] home.
You all have to be unanimous in each of those
incidents before you could find Mr. Fortson
guilty of that particular charge. There are no
other incidents of [im]proper sexual contact
alleged. You heard no evidence of other, other
incidents of [im]proper sexual contact. And
sexual contact is defined in the instructions
that I just read to you. So [prosecutor], we’ve
talked about not having unanimity
instructions. You need to be very careful in
your comments in this area.
¶ 56 The prosecutor resumed her argument by asking the jury to
determine the pattern count based on the two charged incidents.
But then, undaunted by the court’s admonishment, she quickly
returned to the topic of Fortson’s other, uncharged acts of sexual
assault:
It’s those two incidents [of sexual intercourse
and oral sex] are what I’m asking you to look
at. But, you saw when [the forensic
interviewer/expert] testified. She said that
these disclosures could be consistent with
other incidents that have been come –
¶ 57 Defense counsel immediately interrupted, stating, “Your
Honor, I’m objecting. And as a matter of fact, I have a motion.” At
20
this point, the court held a discussion with the attorneys that is not
reported in the record on appeal.
¶ 58 To be sure, “[p]rosecutors are granted wide latitude during
closing arguments.” People v. Whitman, 205 P.3d 371, 384 (Colo.
App. 2007). But a “[c]losing argument must be confined to the
evidence admitted at trial, the inferences that can reasonably and
fairly be drawn from it, and the instructions of law submitted to the
jury.” People v. Rojas, 181 P.3d 1216, 1223 (Colo. App. 2008);
People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006) (“[I]t is not
proper for a prosecutor to refer to facts not in evidence or to make
statements reflecting his or her personal opinion or personal
knowledge.”).
¶ 59 The prosecutor cannot use closing argument to “mislead or
unduly influence the jury.” Whitman, 205 P.3d at 384. To that
end, improper arguments include those that are calculated to
inflame the passions and prejudices of the jury; tend to influence
jurors to decide the case based on pre-existing biases, rather than
the facts; misstate the evidence; and imply personal knowledge of
evidence unknown to the jury. Id.; see also People v. Gladney, 250
P.3d 762, 769 (Colo. App. 2010). Claims of improper argument
21
must be evaluated in the context of the argument as a whole and in
light of the evidence before the jury. People v. Krutsinger, 121 P.3d
318, 324 (Colo. App. 2005).
¶ 60 We conclude that the prosecutor’s remarks were improper.
They removed the focus from the evidence presented in the case,
and reveal an effort by the prosecutor to evoke bias and influence
the jury to decide the case based on an improper basis. See Harris,
888 P.2d at 265. The prosecutor’s intimations about these
uncharged sexual assaults against J.W. encouraged the jury to
misuse this “information” as evidence of Fortson’s bad character,
and to create sympathy for J.W. See Whitman, 205 P.3d at 384 (In
a prosecution for sexual assault on a child, the prosecutor’s
reference during closing argument to an unrelated child murder
case in Florida was improper because it “invited the jurors to make
a comparison to an irrelevant and prejudicial case.”).
¶ 61 Finally, we note that the prosecutor repeated her remarks
intimating that Fortson engaged in other sexual acts against J.W.
even after defense counsel’s objections and the trial court’s warning
to her to “be very careful in your comments in this area.” Given the
prosecutor’s obvious knowledge that this evidence had not been
22
admitted for any purpose ― in light of the trial court’s
admonishment and defense counsel’s objections ― her conduct was
clearly improper. See People v. McBride, 228 P.3d 216, 223 (Colo.
App. 2009); see also Oliver, 745 P.2d at 228 (“A prosecutor must
promptly comply with all orders and directives of the court, I
Standards for Criminal Justice, The Prosecution Function, section
3-5.2(d) (1986 Supp.).”).
¶ 62 We are unpersuaded by the Attorney General’s assertion that
the prosecutor’s closing argument was a proper comment on
evidence of “grooming.” To be sure, the forensic interviewer testified
about “grooming” behavior. But the prosecutor’s closing argument
went far beyond discussing evidence of grooming to allege prior
incidents of sexual assault.
¶ 63 The concept of grooming relates to a sex offender’s “methods of
acquiring victims” to lower their inhibitions. Romero v. People, 2017
CO 37, ¶ 15. It refers to conduct, such as gift giving, affectionate
touching, or even watching pornography or other sexualized play.
People v. Relaford, 2016 COA 99, ¶ 21; People v. Miranda, 2014
COA 102, ¶ 53. It precedes the later criminal sexual act and
involves “a pattern of seduction and preparation, resulting in the
23
child being willing and compliant to the defendant’s sexual abuse.”
Miranda, ¶ 53 (citation omitted); see People v. Garrison, 2017 COA
107, ¶ 40 n.5.
¶ 64 But here, the prosecutor’s intimations of other uncharged
sexual assaults were not comments on grooming behavior. Her
argument improperly encouraged the jury to find Fortson guilty by
suggesting he sexually abused J.W. in the past and acted in
conformity with this prior abuse on the two charged occasions.
D. The Misconduct Warrants Reversal
¶ 65 Having determined that the prosecutor engaged in misconduct
by repeatedly referencing uncharged sexual assaults by Fortson
against J.W. and at least four other children, we now conclude that
it requires reversal.
1. Preserved Error
¶ 66 Fortson’s counsel objected during the prosecutor’s statement
during closing argument that it does not make sense that the
charged incidents were the “first incident[s] of sexual abuse.”
Prosecutorial misconduct to which defense counsel objects is
reviewed for nonconstitutional harmless error. Under this
standard, improper argument is harmless if it did not “substantially
24
influence the verdict or adversely affect the fairness of the
proceedings.” Douglas, ¶ 58 (quoting Whitman, 205 P.3d at 384-
85).
¶ 67 As discussed above, the prosecutor’s argument significantly
risked a guilty verdict based on considerations other than the
evidence of the charged acts presented at trial. See People v.
Wilson, 743 P.2d 415, 419 (Colo. 1987). Ordinarily, of course, the
sustaining of an objection or a trial court’s instruction to a jury to
disregard inadmissible evidence sufficiently remedies the offending
argument or conduct. But not always. The supreme court has
recognized that when evidence “is so highly prejudicial, as here, it is
conceivable that but for its exposure, the jury may not have found
the defendant guilty.” People v. Goldsberry, 181 Colo. 406, 410,
509 P.2d 801, 803 (1973).
¶ 68 The prosecutor’s statements fall squarely within this class of
highly prejudicial evidence that might not be easily cured by a
limiting instruction. To be sure, the trial court, in response to this
argument, instructed the jury that the charges related only to two
incidents. But without more, and given the exceptional prejudice
associated with the pervasive misconduct throughout trial, we
25
conclude that admonition was insufficient to remedy the prejudice.2
See Wilson, 743 P.2d at 420–21 (“It would defy common sense,
however, to believe that [the credibility] instruction was sufficient to
neutralize the impact of the prosecutor’s improper remarks during
summation. . . . [J]urors do pay heed to the arguments of counsel
in arriving at a result.”).
¶ 69 When a person is on trial for alleged sexual assaults on a
child, information suggesting that the defendant escaped criminal
charges for a previous sexual assault of that child is exceptionally
prejudicial. We now consider the resulting prejudice of this
argument along with the other instances of misconduct.
2. Unpreserved Error
¶ 70 Fortson did not object to any of the other damaging evidence
of prior uncharged sexual assaults, and so this misconduct must be
reviewed for plain error.
¶ 71 Before we engage in this analysis, we first address a key
dispute between the majority and the dissent as to the focus of the
plain error standard of review.
2 Although the court also stated, “You heard no evidence of . . .
other incidents of [im]proper sexual contact,” the jury did hear
testimony that Fortson “raped” other children.
26
¶ 72 The dissent imposes a “fairness to the trial court” standard
instead of independently addressing the elements of the plain error
analysis: obviousness and fundamental fairness of the trial. See
Nardine, ¶ 63 (to warrant reversal under the plain error standard,
the misconduct must be obvious and substantial and so undermine
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction).
¶ 73 We disagree with the dissent’s repeated statements that in
conducting plain error review, fairness to the trial court, rather
than the guarantee of a fair trial for the defendant, is the
touchstone. While appellate courts certainly should strive to be fair
to all participants in the criminal justice process, placing “fairness
to the trial court” on the same pedestal with a defendant’s
constitutionally guaranteed right to a fair trial is unsupported by
any legal authority of which we are aware.
¶ 74 Likewise, we disagree with the standard employed by the
dissent that evaluates whether “the trial court deserves better.” In
this regard, the dissent posits that when an appellate court finds
plain error, then “by implication [it is] impugning the trial judge’s
competence.” Infra, ¶ 180. The dissent attributes to the majority
27
an outdated premise from People v. Taylor: “a competent trial judge
should be able to avoid [the error] without benefit of objection.” 159
P.3d 730, 738 (Colo. App. 2006) (emphasis added) (addressing the
obviousness prong of plain error analysis).
¶ 75 The majority does not follow this premise. Indeed, in recent
years, the “competent trial judge” language has not been used by
this court. It also has been rejected by the United States Supreme
Court in Henderson v. United States, 568 U.S. 266 (2013). There,
the Supreme Court expressly recognized that “plain-error review is
not a grading system for trial judges”; it serves other “broader
purposes,” including “fairness and judicial integrity.” Id. at 278.
¶ 76 With that clarification, we now determine whether any error is
reversible under the plain error standard.
¶ 77 To warrant reversal under plain error review, prosecutorial
misconduct “must be obvious and substantial and so undermine
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” Nardine, ¶ 63.
¶ 78 Obvious error is that which contravenes “(1) a clear statutory
command; (2) a well-settled legal principle; or (3) Colorado case
law.” Scott v. People, 2017 CO 16, ¶ 16 (citation omitted). Here, as
28
discussed in detail above, the prosecutor contravened well-settled
law that prohibits the admission of prior sexual acts as propensity
evidence by repeatedly eliciting and referencing such evidence. See
§ 16-10-301; CRE 404(b); Garner, 806 P.2d at 373-74; Spoto, 795
P.2d at 1319.
¶ 79 We therefore must determine whether this obvious error
affected the fundamental fairness of the trial.
¶ 80 A reviewing appellate court must “inquire into whether the
errors seriously affected the fairness or integrity of the trial.”
Domingo-Gomez, 125 P.3d at 1053; see also Hagos v. People, 2012
CO 63, ¶ 14. For, above all, it is the appellate court’s responsibility
to avoid a miscarriage of justice for a defendant even when defense
counsel fails to object to serious errors at trial. Wend, 235 P.3d at
1097-98. Indeed, fundamental fairness is the “beacon of plain error
review.” Nardine, ¶ 64.
¶ 81 In this inquiry, we must consider the particular facts and
context because only through examining the totality of the
circumstances can we determine whether the error affected the
fundamental fairness of the trial. Id. at ¶ 65. We evaluate the
cumulative effect of the prosecutor’s statements by considering the
29
exact language used, the nature of the misconduct, the degree of
prejudice associated with the misconduct, the surrounding context,
and the strength of the other evidence of guilt. Wend, 235 P.3d at
1098.
¶ 82 Repeated references to inadmissible prior bad act evidence, as
occurred here, are especially problematic in a prosecution for sex
crimes against a child victim. The emotional responses that attend
such charges are inevitably heightened and a prosecutor must be
vigilant not to step over the line. See Wilson, 743 P.2d at 419
(cautioning prosecutors in cases of sexual assault on children to
ensure “that the jury tries the case solely on the basis of the facts
presented to them” (quoting People v. Elliston, 181 Colo. 118, 126,
508 P.2d 379, 383 (1973))).
¶ 83 The pervasive nature of the misconduct in this case is
particularly concerning. The uncharged sexual acts were a
recurring theme throughout the trial. And more, the prosecutor
persisted in referring to these uncharged acts despite the trial
court’s sua sponte admonishment and defense counsel’s objections
during closing. See Walters, 148 P.3d at 338 (noting that plain
error review requires a consideration of any persistent, improper
30
remarks by the prosecutor); cf. Domingo-Gomez, 125 P.3d at 1053
(“Comments that were ‘few in number, momentary in length, and
were a very small part of a rather prosaic summation’ do not
warrant reversal under the plain error standard.” (quoting People v.
Mason, 643 P.2d 745, 753 (Colo. 1982))).
¶ 84 We cannot ignore the high degree of prejudice associated with
the misconduct. These references were not only to the type of
offense that inherently carries an emotional charge, but the
prosecutor referenced prior allegations of sexual abuse against not
only the victim in this case but also at least four other children.
A.K.’s allegations, drawn out during the prosecutor’s
cross-examination, referenced incidents involving three other girls.
Similarly, J.W.’s statements referenced uncharged assaults against
other children. She mentioned one girl by name, but also implied
there may be many “other kids” Fortson had “raped” or harmed.
This evidence implied that Fortson was a sexual predator of
children, and implied that, for that reason, Fortson must also be
guilty of the charged acts.
¶ 85 We also consider the surrounding context of the trial as a
whole. This case largely turned on the credibility of the victim and
31
the defendant, as the experts sharply disputed the significance of
the DNA evidence. J.W.’s allegations were denied by Fortson, who
testified in his own defense, and several witnesses questioned
J.W.’s credibility. Thus, the jury’s assessment of J.W.’s and
Fortson’s credibility was essential to his conviction, and the
misconduct had the effect of denigrating Fortson and making it
appear likely that Fortson either had repeatedly committed acts
similar to those charged or was incredible. Nardine, ¶ 68
(Misconduct was prejudicial in a case that “depended almost
entirely on the jurors’ assessment of [the victim’s] credibility.”).
¶ 86 Finally, we consider the strength of the other evidence. As to
Count Two, the oral sex incident, the prosecutor did not present
any corroborating evidence outside of J.W.’s allegation.
¶ 87 As to Count One, the sexual intercourse incident, the
prosecutor did present DNA evidence to corroborate J.W.’s
allegation. But while it may have been the strongest evidence
corroborating this allegation, it was of disputed quality.
¶ 88 The prosecution’s expert testified that false positives “are
known” to occur in initial screening tests, and his initial screening
indicated it was “likely,” but could not confirm, that semen was
32
present on the inside of J.W.’s underwear. The defense DNA expert
disagreed with the conclusion that there was semen in the victim’s
underwear. He opined that the DNA might have resulted from a
secondary transfer, the quality of the DNA sample was poor, and
that because no male DNA was in the vaginal swab taken from
J.W., there was no forensic evidence that Fortson had sexual
intercourse with her.
¶ 89 True, the prosecutor’s expert testified that with further testing,
he excluded 98.6% of the “Caucasian population,” but not Fortson,
as the source of the sample. But the defense expert emphasized
that this result would have, conversely, matched 1.4% of Caucasian
males in the United States, a significantly large number.
¶ 90 The resolution of the disputed evidence was, of course, for the
jury, not us. Yet, this evidence was not sufficient in both quantity
and quality to enable us to conclude that the jury “could not have
arrived at a verdict other than guilty.” See People v. Rodriguez, 914
P.2d 230, 278–79 (Colo. 1996) (quoting People v. Rodgers, 756 P.2d
980, 985 (Colo. 1988)).
¶ 91 Considering the prosecutor’s pervasive misconduct in the
context of the entire record, we are convinced that it undermined
33
the fundamental fairness of the trial and, in our view, “cast serious
doubt on the reliability of the judgment of conviction.” Weinreich,
98 P.3d at 924.
¶ 92 As the dissent notes, reversals for plain error are rare. But
this does not excuse an appellate court from determining, as we do
here, that the defendant did not receive a fair trial because of
prosecutorial misconduct. Appellate courts have the responsibility
to determine when plain error prevents a defendant from receiving a
fair trial, and this is such a case.
¶ 93 Accordingly, Fortson’s judgments of conviction are reversed.
III. Trial Court Error Regarding Other Act Evidence
¶ 94 Fortson also contends that the trial court erred when it
allowed the prosecutor to present and elicit the uncharged sexual
assault evidence and when it failed to instruct the jury to disregard
it. Fortson argues that the trial court committed plain error when it
allowed the prosecutor to present this evidence because the video
contained inadmissible CRE 404(b) evidence.
¶ 95 However, given our conclusion that the introduction and use
of this evidence constituted reversible prosecutorial misconduct, we
34
need not address whether the trial court also erred in allowing or
failing to instruct the jury on this evidence.
IV. Expert Witness Testimony — Alleged Bolstering
¶ 96 To provide guidance on retrial, we briefly address Fortson’s
argument on appeal that the child abuse expert improperly
bolstered the victim’s credibility because she testified both as a fact
witness regarding her forensic interview of the victim and as an
expert witness on child sex abuse victims.
¶ 97 Fortson does not cite, and we cannot find, any decision of
either the Colorado Supreme Court or this court that has
categorically proscribed such dual capacity testimony. The
supreme court has concluded that such testimony is impermissible
in certain circumstances not present here.
¶ 98 In Salcedo v. People, a detective testified both as an expert
witness “concerning the behavior and characteristics that constitute
the drug courier profile” and as an eyewitness “concerning [the
defendant’s] actions and appearance” at the time of his arrest. 999
P.2d 833, 840 (Colo. 2000). The supreme court was primarily
concerned with whether the detective’s testimony about the drug
courier profile was unduly prejudicial. Id. The court did not hold
35
that the detective’s testimony was categorically proscribed because
he testified as both an expert witness and as an eyewitness. Id.
Instead, the court concluded that the detective’s testimony was
impermissible because it intermingled expert witness testimony
concerning the behavior and characteristics that constituted the
drug courier profile with eyewitness testimony concerning the
defendant’s actions and appearance. Id.
¶ 99 While such dual capacity testimony is problematic for several
reasons identified in Salcedo and the reasons identified in Judge
Berger’s special concurrence, in the absence of binding appellate
authority condemning such testimony, it remains for the trial court
to exercise its discretion to control and, in appropriate
circumstances, preclude such testimony on proper objection.
V. Rape Shield Statute Arguments Were Not Preserved For Appeal
¶ 100 Fortson also contends on appeal that the trial court erred in
excluding evidence of the victim’s alleged sexual activity with her
boyfriend under the rape shield statute because the evidence was
relevant both to show an alternate source for the victim’s sexual
knowledge and to show an alternate source of the DNA found in her
underwear.
36
¶ 101 We do not address this contention other than to observe that
Fortson did not make these arguments at trial or, when required by
the rape shield statute, follow the statute’s procedural
requirements. Instead, he made two other arguments under the
rape shield statute. First, he argued that the court should allow the
admission of evidence that the victim had multiple sets of DNA on
the waistband of her underwear. Second, he argued that evidence
of the victim having sex with her boyfriend was relevant to explain
why she went to the pregnancy center. The trial court correctly
resolved these arguments.
VI. Conclusion
¶ 102 Fortson’s convictions are reversed, and the case is remanded
for a new trial.
JUDGE BERGER specially concurs.
JUDGE WEBB dissents.
1
37
JUDGE BERGER, specially concurring.
¶ 103 I join Judge Lichtenstein’s opinion reversing Fortson’s
convictions on the basis of prosecutorial misconduct. I fully agree
that the prosecutor engaged in serious misconduct. It is a much
closer question, for all the reasons articulated by Judge Webb,
whether that misconduct by itself requires reversal. Regardless, in
my view, when the prosecutorial misconduct is considered in
conjunction with the improper use of expert testimony, the
conclusion that Fortson did not receive a fair trial is manifest.
¶ 104 The prosecution of sex offenses against children unavoidably
places enormous pressures on all participants in the judicial
process: victims, defendants, prosecutors, jurors, and judges.
Because of the nature of these crimes, there often is no forensic,
scientific, or corroborating evidence. In many of these cases,
whether the defendant spends the remainder of his or her life in
prison turns solely on the jury’s determination of whether the victim
or the defendant is telling the truth.
¶ 105 Because the actions and reactions of sexual assault victims,
particularly children, can appear perplexing and even
counterintuitive to the ordinary juror, courts uniformly permit the
38
prosecution to present expert testimony from child sex assault
experts regarding general characteristics of sex assault victims — to
explain why some victims delay reporting (or do not report at all)
and similar matters. See, e.g., Venalonzo v. People, 2017 CO 9,
¶¶ 32-34; People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009);
People v. Relaford, 2016 COA 99, ¶¶ 26-30.
¶ 106 But courts also recognize that this type of testimony (indeed
most, if not all, expert testimony) at least collaterally bolsters the
credibility of a witness, often the victim, and thus implicates the
principle that no witness, including an expert witness, may testify
that another witness has told the truth on a particular occasion.
See Relaford, ¶ 30. “Testimony that another witness is credible is
especially problematic where the outcome of the case turns on that
witness’ credibility. This often occurs in child sex assault cases.”
Venalonzo, ¶ 33.
¶ 107 When there is no unusual conduct by the victim outside the
ken of the ordinary juror, the bolstering effect is unacceptable and
expert testimony of this type (even by a qualified witness) should be
excluded under CRE 702 because it is not useful to the jury, or
39
under CRE 403 because the probative value is outweighed by the
prejudicial effect, or both.
¶ 108 If the victim acts in a manner that an ordinary juror might
consider to be unusual or inconsistent, and if an expert testifies
that such acts are common among typical sexual assault victims,
the expert’s testimony both explains the victim’s unusual or
inconsistent actions and makes it more likely that the victim’s
testimony regarding the alleged assault is accurate and truthful.
See, e.g., People v. Morrison, 985 P.2d 1, 5-6 (Colo. App. 1999),
aff’d, 19 P.3d 668 (Colo. 2000).
¶ 109 When the expert testimony is limited to general characteristics
of child sex assault victims, the collateral bolstering of the victim’s
credibility is tolerable because otherwise a jury may be unable to
accurately address odd or peculiar behavior by victims and
conclude, incorrectly, that such behavior necessarily means that
the victim has not told the truth. See Venalonzo, ¶¶ 32-33; People
v. Fasy, 829 P.2d 1314, 1316 (Colo. 1992).
¶ 110 The supreme court has prohibited not only direct testimony
that another witness has told the truth on a particular occasion,
but also indirect or disguised testimony that accomplishes the same
40
improper objective. Thus, in People v. Wittrein, the court held that
testimony by a child psychiatrist that she found it “hard . . . to
imagine that an eight-year-old child would be able to put
together . . . a plan” to portray herself as a victim constituted
improper opinion testimony by the psychiatrist that the victim was
telling the truth about the alleged assault.1 221 P.3d at 1081-82.
In People v. Snook, the court held that it was impermissible for a
social worker to testify that children tend not to fabricate stories of
sexual abuse. 745 P.2d 647, 649 (Colo. 1987). Similarly in People
v. Eppens, the court held that a social worker impermissibly
testified that the child victim’s report of a sexual assault was
“sincere.” 979 P.2d 14, 17-19 (Colo. 1999). And, in People v.
Gaffney, the court held that an expert could not testify that the
child victim was “very believable.” 769 P.2d 1081, 1088 (Colo.
1989).
¶ 111 Most recently, in Venalonzo, ¶ 35, the supreme court held that
an expert’s testimony “improperly bolstered the children’s credibility
1The court nevertheless held that the testimony was properly
admitted because it was invited by defense counsel’s
cross-examination of the psychiatrist. People v. Wittrein, 221 P.3d
1076, 1082 (Colo. 2009).
41
and led to the impermissible inference that the children were telling
the truth about the incident” when the expert testified that “many
of the children’s behaviors were common to other child sex assault
victims she had interviewed and testified that some forensic
interviews have led the People to drop charges against suspects.”2
¶ 112 While Venalonzo may, and probably should, be read as
restricting the admissibility of some expert testimony previously
permitted by Colorado case law, I do not read it as a blanket
prohibition of expert testimony regarding the general characteristics
of sexual assault victims, so long as the expert does not opine,
directly or indirectly, that the victim actually fits the general
characteristics testified to by the expert.
¶ 113 In People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986), a
division of this court held that a social worker’s testimony which
“merely stated that the stepdaughter’s observed behavior was
consistent with the unique child incest patterns described by the
police psychologist” was properly admitted. Similar evidence was
2 In his opinion in Venalonzo v. People, Justice Coats wrote: “I
understand the majority to hold that CRE 608(a) prohibits a
witness from implying, either directly or indirectly, that someone else
is telling the truth on a particular occasion . . . .” 2017 CO 9, ¶ 65
(Coats, J., concurring in the judgment) (emphasis added).
42
approved by the division in People v. Cernazanu: “[E]xperts may
testify concerning whether a victim’s behavior or demeanor is
consistent with the typical behavior of victims of abuse.” 2015 COA
122, ¶ 13 (quoting People v. Glasser, 293 P.3d 68, 78 (Colo. App.
2011)).
¶ 114 I find it difficult to reconcile these portions of Koon and
Cernazanu with Venalonzo because once the expert assumes the
role of not only educating the jury on general victim characteristics
but also opines that the particular victim’s conduct is in conformity
with those characteristics, the expert probably crosses the line.
However, I do not read Venalonzo as prohibiting either evidence of
general victim characteristics or the jury from determining whether
the victim, in fact, meets the general characteristics.
¶ 115 This court has also addressed the boundaries between
permissible victim characteristic evidence and impermissible direct
or indirect testimony regarding the truthfulness of the victim. For
example, in Cernazanu, ¶ 16, the division held that “[t]estifying that
[the victim] did not engage in her typical ‘lying’ behavior on that
occasion (specifically, not promptly recanting) necessarily implied
43
[the mother’s] opinion that [the victim] was not lying and, thus, that
she was telling the truth on that occasion.”
¶ 116 To avoid having experts express, directly or indirectly,
opinions that the victim told the truth regarding the alleged assault,
prosecutors sometimes use “cold” or “blind” experts to educate the
jury regarding common characteristics of child sex assault victims.3
A “cold” or “blind” expert knows little or nothing about the facts of
the particular case, often has not even met the victim, and has not
performed any forensic or psychological examination of the victim.
See Fed. R. Evid. 702 advisory committee’s note to 2000
amendment; Christopher Tarver Robertson, Blind Expertise, 85
N.Y.U. L. Rev. 174 (2010).
¶ 117 The drawing of precise lines in this area is extremely difficult
because of the recognition that this type of evidence is admissible in
certain cases, but may be in tension with the principle that no
3 I recognize that depending on how the “blind” expert’s testimony is
presented and crafted, the expert’s testimony may still constitute an
impermissible indirect opinion that a witness told the truth on a
particular occasion. See People v. Snook, 745 P.2d 647, 648-49
(Colo. 1987) (holding that, even though “the expert had no personal
knowledge of the victim’s credibility and couched her testimony in
general terms,” her testimony was still improper because it referred
to the victim’s character for truthfulness).
44
witness may testify that another has told the truth. This tension
necessarily imposes an enhanced obligation on trial judges to
vigorously enforce the requirements of both CRE 702 and CRE 403.
¶ 118 When there is no unusual conduct by the victim outside the
ken of the ordinary juror, the bolstering effect is unacceptable and
expert testimony of this type (even by a qualified witness) should be
excluded under CRE 702 because it is not useful to the jury, or
under CRE 403 because the probative value is outweighed by the
prejudicial effect, or both.
¶ 119 This case presents a particularly problematic and, in my view,
improper, use of expert testimony in a child sex assault case. Thus,
while I join Judge Lichtenstein’s opinion reversing Fortson’s
convictions based on prosecutorial misconduct, I write separately to
explain why, irrespective of prosecutorial misconduct, the
admission of prejudicial testimony by the child sex assault expert
requires reversal.4
4 Because a majority of the division has not reversed based on the
expert’s testimony, I address only summarily the questions of
preservation and the Attorney General’s assertion of invited error. I
would hold that the error was not preserved and that plain error
review applies. As to invited error, I believe the Attorney General’s
contention borders on frivolity. I reject the argument that by
45
¶ 120 The child sex assault expert in this case did not testify as a
“cold” or “blind” expert and did not limit her testimony to general
characteristics or reactions of child sex assault victims. She did
exactly the opposite. She testified in three different capacities: (1)
as an expert in performing forensic interviews of child sex assault
victims; (2) as a child sex assault expert on the general
characteristics of child sex assault victims; and (3) as a lay witness
regarding the forensic interview she conducted of the victim.5
¶ 121 The hazards of dual capacity expert testimony, where a
witness testifies as both an expert and lay witness, are well known.
In a different context, involving drug courier profiling, the Colorado
Supreme Court explained the pitfalls that may result from the
conflation of a witnesses’ two separate roles.
making proper relevance objections (objections which were
sustained) and attempting to cabin the expert’s testimony to
matters that had some relation to the case at hand, the defense
invited the prosecutor to offer prejudicial opinions that told the jury
that the victim testified truthfully.
5 Most of the expert’s testimony regarding her forensic interview of
the victim does not appear to be expert testimony at all, but lay
testimony, either as a percipient witness or under CRE 701.
Venalonzo, ¶¶ 27-30. The risks of this testimony, described in the
text, do not depend on whether that portion of her testimony was
expert or lay testimony.
46
In this case, [the drug courier profile expert]
testified as both a factual witness and an
expert witness. During his direct examination,
[the expert] intermingled expert testimony
concerning the behavior and characteristics
that constitute the drug courier profile with
eyewitness testimony concerning Salcedo’s
actions and appearance. Consequently, [the
expert’s] testimony posed a risk of misleading
the jury to believe that Salcedo exhibited all of
the behaviors and characteristics in [the
expert’s] profile or that all of Salcedo’s
behaviors and characteristics could be found
in [the expert’s] profile. [The expert’s]
testimony also posed an undue risk of
misleading the jury because the jury
reasonably could have believed it was reliable
and logically relevant to Salcedo’s guilt.
Salcedo v. People, 999 P.2d 833, 840 (Colo. 2000). The supreme
court did not, however, establish a per se rule prohibiting such dual
capacity testimony.6 Id.
6 There is a substantial body of federal case law regarding dual
purpose expert testimony, primarily arising from prosecutions for
drug offenses. See Robert E. Larson, Navigating the Federal Trial
§ 2:28, Westlaw (database updated June 2017) (collecting cases).
These cases primarily address the pitfalls of dual capacity
testimony for reasons apart from commenting on the truthfulness of
a victim or witness. See, e.g., United States v. Haines, 803 F.3d
713, 730-32 (5th Cir. 2015); United States v. Garcia, 752 F.3d 382,
392 (4th Cir. 2014); United States v. Baptiste, 596 F.3d 214, 224
(4th Cir. 2010); United States v. Dukagjini, 326 F.3d 45, 58-59 (2d
Cir. 2003).
47
¶ 122 When, as here, the principal defense is that the crime did not
occur, the risks of dual capacity testimony are obvious and
substantial. Nevertheless, the prosecutor chose to play roulette and
called a dual capacity expert. Recognizing these risks, and
consistent with Salcedo’s guidance, the trial court attempted to
guide and limit the prosecutor’s examination of the expert to avoid
precisely the problem that now confronts us. The court explained
to both the prosecutor and the expert, in no uncertain terms, what
testimony would be permitted and what would be prohibited, but,
in important respects, they ignored these instructions.7
¶ 123 The first significant breach of the trial court’s limitations on
the expert’s testimony occurred when the prosecutor induced the
expert to give testimony regarding the “perfect victim.” The expert
opined that perpetrators often seek victims who have developmental
and credibility issues, and are thus less likely to be believed, which
provides “cover” for the perpetrator.
7 Like the supreme court in Salcedo v. People, I would not adopt a
per se rule prohibiting dual capacity testimony, but also like the
supreme court in Salcedo, I emphasize the grave risks to a fair trial
often inherent in such testimony. 999 P.2d 833, 840 (Colo. 2000).
48
¶ 124 While the expert did not specifically identify the victim in this
case as “the perfect victim,” I am convinced that not a single person
in the courtroom, including the jurors, failed to make the
connection. Not surprisingly, the victim had all of the
characteristics that the expert testified made a child a perfect
victim.
¶ 125 Even worse, when explaining the obstacles victims face in
disclosing sexual assaults, the expert used the “example” of a “child
that’s potentially, say, fourteen. And, potentially, they are
emotionally ten — something like that. . . .” Of course, by that
time, the jury had heard the victim’s mother testify that the victim
was a fourteen-year-old girl who acted as if she were ten. There
was nothing “potential” about it and the probability that the expert
coincidentally chose those ages to illustrate her testimony is
infinitesimal. Everyone understood that the expert was talking
about the victim.
¶ 126 It does not end there.
¶ 127 During one of her interviews (but not others), the victim
recounted that during the assault she poked Fortson in the eye.
The alleged eye-poking incident had no intrinsic significance. In
49
terms of the elements of the charged offenses, it mattered not one
whit if the victim poked Fortson in the eye.
¶ 128 A defendant, of course, has the right to test the credibility of a
witness, particularly a witness who inculpates a defendant in some
of the most serious crimes in the criminal code. People v. Segovia,
196 P.3d 1126, 1130 (Colo. 2008). Defendants often and
legitimately argue that because a witness was untruthful in some
respects, her testimony should not be believed in other respects.
See COLJI–Crim. E:05 (2016) (stating that a juror “may believe all of
the testimony of a witness, part of it, or none of it”). The eye-poking
incident was one such inconsistency, which Fortson highlighted on
cross-examination of the expert.
¶ 129 Not surprisingly, the prosecutor sought to minimize the effects
on the victim’s credibility of the apparently fanciful eye-poking
incident. The prosecutor again invited the expert to conflate her
different roles: as a child sex abuse expert who could provide useful
information about the general characteristics of sexual assault
victims, and as the person who actually conducted the victim’s
forensic interview and knew much about the victim. The prosecutor
prompted the expert to testify that it was not unusual for a sexual
50
assault victim to incorrectly, or falsely, recall defending herself
during an assault (such as poking the assailant in the eye) and,
implicitly, that such false recall has no effect on the overall
credibility of the outcry.
Prosecutor: I asked you about poking in the
eye that [defense counsel] had asked you
about. Have you ever heard of cases or been
involved in cases where children made
something up about hitting an assailant or a
Perpetrator over the head — somehow
assaulting a, a Perpetrator?
Expert: Yes; as I previously described, it’s a
coping mechanism that children utilize. We do
refer to it as empowerment; basically, an adult
perceiving a child being assaulted.
An adult’s perception is [indiscernible] adult’s
perception is that they should fight back in
some way. And children know that or at least
perceive that that’s what the adult is going to
expect of them.
So, many times they’ll add on something to the
effect of, you know, they hit their Perpetrator
or they poked him in the eye or they, you know,
stabbed them with a knife and ran away; those
sorts of things.
(Emphasis added.)
¶ 130 There was not even a pretense that this testimony related to
anything other than whether the victim told the truth about the
51
alleged sexual assault despite her prevarication about the
eye-poking incident.
¶ 131 As I see it, the error in the admission of this testimony was
obvious both because it violated the court’s prior order limiting the
expert’s testimony and because it violated the principle that no
witness may ever testify that another witness has told the truth on
a particular occasion.8 Venalonzo, ¶ 32.
¶ 132 I also conclude that the second component of plain error was
met here: that the error in the testimony was so substantial it
“undermined the fundamental fairness of the trial itself so as to
cast serious doubt on the reliability of the judgment of conviction.”
People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v.
Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).
¶ 133 In concluding that the erroneous admission of the expert’s
testimony regarding the credibility of the victim was plain error, I do
not disregard the force of the DNA evidence against Fortson.
8 I do not address whether expert testimony by a “blind” expert
regarding a child sex assault victim’s propensity to exaggerate her
alleged defensive actions would always be improper. Here, however,
the testimony was presented to directly rehabilitate the credibility of
this particular victim and not by a “blind” expert.
52
¶ 134 The DNA evidence, while substantial, was not the type of
virtually dispositive DNA evidence often encountered in criminal
cases. Unlike in other cases where the probability of a person other
than the defendant being the depositor of the incriminating DNA is
exceptionally small, here the prosecutor’s DNA expert could only
testify that while 98.6% of the “Caucasian” population was excluded
as a depositor of the DNA, Fortson was not. Cf. People v. Wilson,
2015 CO 54M, ¶ 7 (noting that DNA evidence established that there
was less than a one-in-fifteen trillion chance that the DNA found on
the victim belonged to someone unrelated to the defendant).
¶ 135 Fortson’s DNA expert posited circumstances under which,
even if the DNA belonged to Fortson, it could have been transferred
to the victim’s underwear absent unlawful sexual conduct by
Fortson. Fortson’s expert also expressed the opinion that there
simply was no scientific evidence that Fortson engaged in vaginal
intercourse with the victim.
¶ 136 Put another way, this was not an open and shut case and the
child sex assault expert’s improper testimony could have played a
significant role in the jury’s determination of guilt.
53
¶ 137 For all of these reasons, I conclude that the expert testimony
in this case deprived Fortson of a fair trial. I would reverse his
convictions on that basis as well as on the basis of the prosecutorial
misconduct described in Judge Lichtenstein’s opinion.
54
JUDGE WEBB, dissenting.
¶ 138 This is a plain error case, no more and no less. “To constitute
plain error, prosecutorial misconduct must have been so flagrant,
glaring, or tremendously improper that the trial court should have
intervened sua sponte.” People v. Cordova, 293 P.3d 114, 121
(Colo. App. 2011). Similarly, “we review the trial court’s not
granting a mistrial sua sponte under a plain error standard.”
People v. Lafferty, 9 P.3d 1132, 1136 (Colo. App. 1999). In other
words, while the first inquiry is what the prosecutor did, the second
and more important inquiry is what the trial court should have
done.
¶ 139 The majority says that the prosecutor “repeatedly brought
before the jury uncharged acts of sexual assault.” Supra ¶ 24.
While accurate, this statement gets the majority only so far. Two
unanswered questions — both pivotal to sound plain error analysis
— echo throughout the majority opinion:
 What should the trial court have done, beyond stopping the
prosecutor and cautioning the jury, as the court did?
 Why was the need for further action, apparently sua sponte
declaring a mistrial, obvious?
55
¶ 140 Instead of answering these questions, the majority jumps into
four instances of purported prosecutorial misconduct as grounds
for reversal. Because a closer look through the narrow aperture of
plain error review shows that each instance falls short, I
respectfully dissent.
I. The Plain Error Doctrine Sets a High Bar for Reversal
¶ 141 Everyone would agree that “[p]lain error review allows the
opportunity to reverse convictions in cases presenting particularly
egregious errors, but reversals must be rare.” Hagos v. People,
2012 CO 63, ¶ 23. Simply put, “plain error is strong medicine.”
People v. Ujaama, 2012 COA 36, ¶ 40 (quoting United States v.
Simmonds, 931 F.2d 685, 687 (10th Cir. 1991)).
¶ 142 This doctrine should provide a basis for relief in only limited
circumstances, for three reasons.
 First, to “fault a trial court for failing to rule on an issue that
had not been presented to it” is at best difficult, Simmonds,
931 F.2d at 688, and at worst “unfair to the trial court,” State
v. Whitehorn, 50 P.3d 121, 131 (Mont. 2002).
 Second, an accused should not be able to “withhold his
objections until completion of his trial . . . and later complain
56
of matters which, if he had made a timely objection, would
have allowed the trial court to take corrective action.” People
v. Rollins, 892 P.2d 866, 874 n.13 (Colo. 1995).
 Third, trial participants should be encouraged “to seek a fair
and accurate trial the first time around.” Hagos, ¶ 23 (quoting
United States v. Frady, 456 U.S. 152, 163 (1982)).
¶ 143 Of these limiting principles, I am most concerned over basic
fairness to the trial court. After all, the court did exactly as it
should have when faced with questionable prosecutorial conduct —
shut the prosecutor down and cautioned the jury. The court did
both, not once but twice, and with very little help from defense
counsel. Yet, the majority still reverses, apparently believing that
the prosecutorial misconduct was “so clear-cut, so obvious, a
competent trial judge should be able to avoid it without benefit of
objection.” People v. Taylor, 159 P.3d 730, 738 (Colo. App. 2006). I
discern no lack of competence in the trial judge’s handling of this
trial.
II. Defendant Did Not Cite Section 16-10-301
¶ 144 The majority launches its analysis of error with a discussion of
how the prosecutor failed to comply with section 16-10-301, C.R.S.
57
2017. But this statute is not cited in Fortson’s opening brief or his
reply brief. And therein lies the problem. See, e.g., Vaughn v. King,
167 F.3d 347, 354 (7th Cir. 1999) (“It is not the responsibility of
this court to make arguments for the parties.”); Shankles v. Moore,
205 So. 3d 1253, 1259 (Ala. Civ. App. 2016) (“It is not the duty of
the appellate court to make arguments for the parties, nor is it the
appellate court’s duty to conduct the parties’ legal research.”); State
v. Hand, 401 P.3d 367, 375 (Wash. Ct. App. 2017) (“We do not
make arguments for the parties.”) (review granted Dec. 6, 2017).
¶ 145 Because we cannot know how the Attorney General would
have responded had Fortson raised this statute, I do not address it
further.
III. Instances of Purported Prosecutorial Misconduct
A. The Record Does Not Show Any Need — Much Less an Obvious
Need — for the Trial Court to Have Intervened During the
Prosecutor’s Opening Statement
¶ 146 In her opening statement, the prosecutor said:
I can’t tell you that [the alleged instances of
sexual misconduct] are the only incidents that
occurred of Fortson sexually assaulting [the
victim], but I can tell you that these are the
two clearest incidences that she, thus far, has
been willing to talk about.
58
Defense counsel did not object to this statement.
¶ 147 According to the majority, “[t]he prosecutor’s statements
implied that she knew of other instances in which Fortson had
sexually assaulted [the victim], but that [the victim] could not, or
would not, be telling the jury about them.” Supra ¶ 48. But the
prosecutor said no such thing. Indeed, the prosecutor’s statement
to some extent underplayed the victim’s forensic interview, which as
discussed below did suggest other misconduct by defendant against
her.
¶ 148 Yet, even if the prosecutor made an improper statement,
should the trial court have intervened sua sponte? No, for three
reasons.
¶ 149 First, because language in opening statements rarely warrants
reversal, the court had little reason to scrutinize the prosecutor’s
words and then speculate as to how the case would evolve. See,
e.g., People v. Bowles, 226 P.3d 1125, 1132 (Colo. App. 2009) (“A
prosecution’s opening statement should be limited to evidence that
will be adduced at trial. But remarks not supported by the evidence
will constitute reversible error only on proof of bad faith and
manifest prejudice.”) (citation omitted). And uninformed by an
59
objection or argument, why would the court have suspected bad
faith?
¶ 150 Second, this statement could not have been obviously
improper. The prosecutor did not say there were other instances of
sexual misconduct that defendant had committed against the
victim. And the court would have had no reason to surmise that
this general statement was unrelated to evidence which might be
introduced. For all the court knew, the prosecutor may have only
been forewarning the jury of an anticipated defense attack on the
victim’s credibility because of inconsistencies in her outcries about
alleged abuse.
¶ 151 Third, and most important, any of the court’s concerns would
have been assuaged by references to instances other than those
charged in the video of the victim’s forensic interview, which the
court had reviewed to confirm compliance with the prosecutor’s
redaction request. Because defense counsel had argued before trial
that the entire video should be played, the court would have
anticipated that the jury would hear them. People v. Melanson, 937
P.2d 826, 836 (Colo. App. 1996) (concluding there was no evidence
of bad faith where prosecutor indicated in opening statement that
60
two inmates who had been incarcerated with defendant would
testify, but ceased questioning one inmate and never called the
other when he learned of evidence that would have impeached the
inmates’ credibility).
¶ 152 In sum, the question is not the prosecutor’s motive or intent,
which the majority emphasizes, but whether — even assuming
impropriety — the trial court’s inaction constituted plain error.
Cordova, 293 P.3d at 121. The majority does not explain why the
court should have interrupted the prosecutor’s opening statement.
The three reasons above show that any need for it to do so was far
from obvious, as plain error requires.
B. Defense Counsel Urged That the Entire Video Recording of the
Victim’s Forensic Interview Be Played to the Jury
¶ 153 The majority points out that the prosecutor played the
videotaped statement J.W. made to the forensic interviewers, and
says that “it is improper for a prosecutor to knowingly, and for the
purpose of bringing inadmissible matter to the attention of the
judge or jury, offer inadmissible evidence.” Supra ¶ 44. But wait.
If admission of the video recording was not error — or at least not
obvious error — then how can it have been a major component of,
61
in the words of the majority, “the pervasive nature of the
misconduct in this case?” Supra ¶ 83.
¶ 154 We know that before the trial even began, defense counsel and
the prosecutor fought at length over redactions from the video, with
defense counsel urging that the entire video be played. Thus, from
the trial judge’s perspective, the entire video came in without
objection, and only after defense counsel had argued that it should
be admitted in its entirety. See United States v. Yu-Leung, 51 F.3d
1116, 1123 (2d Cir. 1995) (“This manifest pre-trial concern to guard
against unfair prejudice through one type of ‘irrelevant evidence’
strongly suggests to us that [defense counsel] did not simply fall
asleep at the wheel when another type of ‘irrelevant evidence’ was
presented at trial.”).
¶ 155 Of course, because the trial judge had reviewed the video in
connection with pretrial proceedings on its admissibility, the court
knew it included the victim’s statements “that another girl, A.C.,
‘got raped’ by Fortson, that Fortson had ‘hurt more kids than me,’
and that B.B. told her he ‘raped other kids’ and ‘this was not the
first time he did this.’” The court could well have perceived defense
counsel’s decision not to seek redaction of these statements from
62
the video as a strategic choice aimed at showing her propensity to
exaggerate and embellish her accusations, as well as her animus
toward Fortson.
¶ 156 Apparently, the majority would have had the judge suspend
the proceedings after trial had begun and tell defense counsel that
despite counsel’s earlier contrary position, the attorneys should
again go over the video and identify portions to be redacted. But
what next? To avoid reversal, would the judge have to further
review the video for further redactions, while the jury waited? Such
a scenario makes no sense, logistically or logically.
¶ 157 Indeed, consistent with such a strategy, barely one page into
defense counsel’s closing argument he said, “[t]here are so many
conflicts in her testimony, and so many embellishments as time
goes on, that it raises reasonable doubt all by themselves.” See
People v. Bondsteel, 2015 COA 165, ¶ 130 (“[T]he record creates a
strong inference that defense counsel did not object to these
statements as a matter of strategy rather than due to
inadvertence.”) (cert. granted Oct. 31, 2016). This argument shows
that the defense position of letting the jury hear the entire interview
63
was not limited to the earlier rape shield dispute, as the majority
suggests.
¶ 158 As well, the video recording shows why the prosecutor’s later
actions, even if questionable in hindsight, at worst repeated what
the jury had already heard. And for that reason, any later error
could not be plain. See People v. Fuller, 788 P.2d 741, 748 (Colo.
1990) (“The admission of Mrs. Story’s testimony was not plain error
for the additional reason that the substantial amount of evidence of
the defendant's motive and the defendant’s guilt made Mrs. Story’s
testimony cumulative.”); People v. Douglas, 2015 COA 155, ¶ 41
(“Where the improperly admitted lay testimony is cumulative of
properly admitted expert testimony, there is no plain error.”); People
v. Joyce, 68 P.3d 521, 524 (Colo. App. 2002) (concluding that the
admission of certain hearsay statements was not plain error when
such evidence was “merely cumulative”).
¶ 159 In sum, the majority’s attack on the prosecutor for offering the
entire video into evidence, and the trial judge’s failure to limit its
admission, falls flat.
C. During Cross-Examination of the Victim’s Friend, A.K., the Trial
Court Stopped the Prosecutor and Cautioned the Jury
64
¶ 160 Defense counsel called the victim’s friend, A.K. During
cross-examination, the prosecutor asked five questions. All of them
posited statements that the friend had made during her forensic
interview. Two dealt with repetition of statements by the victim
concerning inappropriate touching by Fortson. The others repeated
accusations made by three different girls of Fortson’s improper
conduct against them. The friend denied having made any of these
statements.
¶ 161 Following the fifth question, the court summoned counsel to
the bench, expressed concern over CRE 404(b), and told the
prosecutor to move on. Fortson neither requested a cautionary
instruction nor moved for a mistrial. Still, the court told the jury
that it should be concerned only with the defendant’s conduct in
the two charged offenses. Defense counsel did not dispute the
adequacy of this instruction.
¶ 162 So, where is the impropriety? The prosecutor’s questions
sought to set up impeachment based on the friend’s prior
inconsistent statements during her forensic interview. Defense
counsel did not challenge the prosecutor’s good faith basis for
setting up the impeachment, as would be expected if the friend had
65
not made such statements to the interviewer. Nor did defense
counsel claim surprise because the recording of that interview had
not been produced by the prosecution.
¶ 163 The majority is correct that the record does not show a good
faith basis for asking these questions. That is so because the
recording of the friend’s interview was not included. But the court’s
admonition to move on left the prosecutor with no reason to make
an offer of proof, such as by directing the court to the recording,
especially where defense counsel had not requested one.
¶ 164 Despite all of this, the majority says that the prosecutor’s
“plan was to ask legally objectionable questions to elicit the highly
prejudicial evidence of Fortson’s uncharged sexual acts (and only
then, to impeach A.K.’s faulty memory . . . ).” Supra ¶ 37. The
majority infers that impeachment was not the prosecutor’s primary
— and entirely proper — purpose because the prosecutor had not
first complied with CRE 404(b) as to “Fortson’s uncharged sexual
acts.”
¶ 165 But for three reasons, I would not so facilely infer a corrupt
intent by the prosecutor to circumvent the procedural requirements
of CRE 404(b). First, the prosecutor was doing just as CRE 613(a)
66
requires — calling A.K.’s attention to the particulars of the prior
inconsistent statements. Second, evidence improper for one
purpose (propensity, according to the majority), may be proper for
another (impeachment with prior inconsistent statements). See
CRE 105. And third, evidence admissible for a limited but proper
purpose does not become inadmissible “merely because the jury
might have improperly considered it” for a purpose other than that
for which it was admitted. Hansen v. Lederman, 759 P.2d 810, 813
(Colo. App. 1988).
¶ 166 Nor does the majority cite authority ignoring CRE 105 merely
because the impeaching evidence would otherwise be subject to the
strictures of CRE 404(b). Our supreme court has held to the
contrary. People v. Segovia, 196 P.3d 1126, 1130 (Colo. 2008)
(“Thus, evidence of specific acts used solely for impeachment is
governed by rule 608(b), rather than rule 404(b).”); accord People v.
Thomas, 2014 COA 64, ¶ 39 (citing Segovia). While the
contemplated impeachment here was under CRE 613(a) rather than
under CRE 608(b), in terms of Segovia’s rationale, that is a
distinction without a difference.
67
¶ 167 If Segovia is not dispositive because it involved other acts
evidence offered by defense counsel rather than by the prosecution,
then the application of CRE 404(b) to impeachment evidence is
unresolved in Colorado.1 Obviousness under plain error requires
controlling Colorado law. See, e.g., People v. Stroud, 2014 COA 58,
¶ 33 (“However, where there is no case law or statute concerning a
trial court’s alleged error, we cannot conclude that the trial court’s
decision constituted plain error because the error would not have
been obvious.”); People v. Zubiate, 2013 COA 69, ¶ 24 (“An error
may be obvious if the issue has been decided by a division of this
1 Out-of-state authority is divided. Compare State v. Kelly, No.
35786-1-II, 2009 WL 1486589, *7 (Wash. Ct. App. May 27, 2009)
(unpublished opinion) (CRE 404(b) “only applies to prior
misconduct offered as substantive evidence, not evidence offered for
impeachment.”), with Petric v. State, 157 So. 3d 176, 201 (Ala.
Crim. App. 2013) (“[W]e hold that Rule 404(b) . . . requires that the
prosecution ‘provide notice, regardless of how it intends to use the
extrinsic-act evidence at trial, i.e., during its case-in-chief, for
impeachment, or for possible rebuttal.’”) (citations omitted).
In the federal system, some circuits have held the requirement
applicable. See, e.g., See United States v. Bradley, 644 F.3d 1213,
1273 (11th Cir. 2011). But the Tenth Circuit treats Fed. R. Evid.
404(b) as applying only to substantive evidence. See United States
v. Watson, 766 F.3d 1219, 1244-45 (10th Cir. 2014) (“When a
defendant, like Mr. Watson, challenges evidence under Rule 404(b)
that was admitted solely for impeachment purposes, we need not
pursue the Rule 404(b) challenge any further.”).
68
court or the Colorado Supreme Court, or if the trial court has
erroneously applied statutory law.”), aff’d, 2017 CO 17.
¶ 168 True, the trial court eventually became concerned over the
CRE 404(b) implications of the questioning. Importantly, then the
court did just what it would have done had defense counsel
objected — shut the prosecutor down and cautioned the jury.
Because the court had no obligation sua sponte to give a cautionary
instruction, the instruction that it gave is beyond plain error review.
See, e.g., People v. Mersman, 148 P.3d 199, 203 (Colo. App. 2006)
(“[T]o receive a curative instruction, a defendant must request it,
and a trial court does not commit plain error if it does not give a
curative instruction sua sponte.”).
¶ 169 Perhaps the court should have stepped in earlier. But the
court may have been slow to react because the jury had already
seen on the video of the victim’s forensic interview — which defense
counsel had urged to be played in its entirety — her assertion that
defendant had “raped other kids, but I don’t know, but I don’t
know, all he told me it was not the first time he done it.” Under
these circumstances, would retrospectively drawing such a fine line
— somewhere after the first but before the fifth of these consecutive
69
questions — be consistent with the obviousness requirement of
plain error? I think not.
D. During the Prosecutor’s Closing Argument, the Trial Court Again
Stopped the Prosecutor and Cautioned the Jury
¶ 170 In closing argument, the prosecutor made two references to
uncharged prior sexual misconduct by Fortson.
1. First Reference
¶ 171 The prosecutor expressed skepticism that the first incident of
sexual abuse was the charged offense of defendant “taking [the
victim] out in the backyard and licking her vagina, it’s just not.
There’s going to be other incidents.” Unsurprisingly, defense
counsel objected to this statement.
¶ 172 The court admonished the prosecutor and directed her not to
continue discussing uncharged misconduct. Then the court
instructed the jury: “Count number 1, the sexual assault on a child,
pattern of abuse, relates only to two incidents, the alleged licking of
the vagina and the alleged sexual assault in the . . . home.” The
court reiterated that the only alleged incidents of sexual misconduct
by Fortson were the two with which he had been charged.
70
¶ 173 As with attempted impeachment of the friend, one might
wonder — what else could the court have done? Of course, had
defense counsel wanted a more forceful instruction, he could have
asked for one. But he did not. Nor did he move for a mistrial.
2. Second Reference
¶ 174 Later in her closing argument, the prosecutor said that the
child abuse expert had testified “that [the victim’s] disclosures could
be consistent with other incidents” of sexual assault. Again,
defense counsel objected. At the bench, the court held a discussion
with the attorneys.
¶ 175 But what was said is not in the record on appeal. For all that
we know, defense counsel may have withdrawn his objection after
having been reminded that the expert had affirmatively answered
the prosecutor’s question, “so can kids take different situations that
have happened over a long period of time or at different events and
squish them together as though they happened all at the same
time?” Or defense counsel may have declined the court’s offer of a
second cautionary instruction, for fear of overly emphasizing the
prosecutor’s comment.
71
¶ 176 We know only that after this conference, the court did not say
anything further to the jury. To the extent that the unreported
conference may have affected the court’s failure to take further
action, defendant bears the burden of certifying an adequate record.
See, e.g., People v. Clendenin, 232 P.3d 210, 216 (Colo. App. 2009)
(It is the defendant’s duty to provide the reviewing court with an
adequate record that substantiates the claim on appeal, and,
“[a]bsent an adequate record, we presume the trial court’s findings
and conclusions are correct.”).
¶ 177 Likewise, I would assume that the record supports the court’s
inaction. Nor is this assumption unfair to defendant. Appellate
counsel could have requested a remand for the trial court and the
parties to reconstruct this portion of the record. For example, in
People v. Ellis, 148 P.3d 205, 208 (Colo. App. 2006), Ellis filed a
motion on appeal for a limited remand to reconstruct the record of
voir dire proceedings, which was granted by this court. The trial
court held a hearing to reconstruct the record of voir dire
proceedings and reconstructed that part of the record, and,
subsequently, the appeal was recertified.
72
IV. The Record Does Not Show an Obvious Need to Have Sua
Sponte Ordered a Mistrial or Any Other Substantial Doubt Over the
Reliability of the Conviction
¶ 178 In the end, two principles overshadow this appeal. First, “a
defendant, though entitled to a fair trial, is not entitled to a perfect
trial.” People v. Stewart, 2017 COA 99, ¶ 79. Second, “because
courts do not reverse convictions to punish prosecutors, see Crider
v. People, 186 P.3d 39, 44 (Colo. 2008), defendant must show the
arguments so undermined the trial’s fundamental fairness as to
cast doubt on the judgment’s reliability.” People v. McBride, 228
P.3d 216, 221 (Colo. App. 2009).
¶ 179 Was this trial perfect? Probably not. Because few are,
perfection is not the metric of the trial court’s competence.
¶ 180 Yet, the majority persists in punishing the prosecutor — and
by implication impugning the trial judge’s competence — for any
imperfections, rather than laying them at the feet of Fortson’s trial
counsel and his appellate counsel. To be sure, Fortson may have a
remedy under Crim. P. 35(c). See People v. Alley, 232 P.3d 272, 274
(Colo. App. 2010) (“This claim is better suited to a Crim. P. 35(c)
motion because the trial court is in a position ‘to develop facts
73
necessary to determine adequacy of representation during an entire
trial.’”) (citation omitted).
¶ 181 Instead of punishing the prosecutor, I look for doubt about the
conviction’s reliability — the penultimate requirement for reversal
under plain error review — but see none.
¶ 182 To begin, I discern no impropriety in the prosecutor’s opening
statement, much less sufficient impropriety to meet the
obviousness requirement for finding plain error in the trial court’s
failure sua sponte to intervene. Beyond that, the prosecutor’s
single and oblique reference to other misconduct against the victim
could hardly have prejudiced the jury. See People v. Carian, 2017
COA 106, ¶ 58 (“The comments were also fleeting relative to the
argument as a whole and in light of all the evidence the jury heard
after opening statements.”).
¶ 183 As for the prosecutor’s cross-examination of A.K., again I
discern no impropriety. But to the extent that the trial court, in its
discretion, felt otherwise, the court did just what it should have
done — shut the prosecutor down and cautioned the jury.
¶ 184 Cases finding reversible prejudice when the court sustains an
objection are rare. See People v. Douglas, 2012 COA 57, ¶ 65
74
(“However, defendant’s contemporaneous objection to the comment
was sustained, and he requested no further relief. Accordingly, we
need not consider this alleged error.”). Even more rare is reversal
when the court also gives a cautionary instruction, as it did here.
See People v. Gable, 184 Colo. 313, 317, 520 P.2d 124, 127 (1974)
(“[T]his was not reversible error in light of the written cautionary
instruction.”).
¶ 185 Turning to closing argument, the prosecutor’s reference to
“other incidents” is puzzling. Even so, as with the questioning of
the friend, again the court stopped the prosecutor dead in her
tracks and let the jury know of the court’s feelings, in no uncertain
terms. Defense counsel did not request a mistrial. As the Tenth
Circuit observed in a similar case,
[w]hatever improper conduct may have
occurred, the district court did not plainly err
by failing to grant a mistrial. In light of the
jury instruction that closing argument is not
evidence, the court’s sustaining [the
defendant’s] objection, and especially the
strength of the evidence against him, the
district court was not clearly obligated to grant
a mistrial sua sponte.
United States v. Anaya, 727 F.3d 1043, 1059 (10th Cir. 2013).
75
¶ 186 Given all this, I do not discern the type of prejudice in the
prosecutor’s closing argument that cries out for reversal because
the trial court did not sua sponte order a mistrial. On the one
hand, no details concerning such other incidents were provided.
See People v. Herdman, 2012 COA 89, ¶ 46 (holding that admission
of prior incidents of cocaine use did not warrant reversal when
testimony of incidents was not detailed and the defendant did not
move to strike testimony or request a limiting instruction); cf.
People v. Rivas, 77 P.3d 882, 892 (Colo. App. 2003) (“Here, the
investigating officer’s statements were ambiguous, vague, and
brief.”). And on the other hand, the jury had already seen far worse
accusations on the victim’s video interview — which defense
counsel had urged to be played in its entirety. See People v. Pack,
797 P.2d 774, 775 (Colo. App. 1990) (“[T]he statement was
cumulative, and therefore, the court’s failure to analyze this issue
under [CRE] 803(2) does not require reversal.”).
¶ 187 Finally, as to the prosecutor’s reference to testimony by the
expert witness, that witness had given similar testimony, without
objection. The majority cites no authority, nor am I aware of any in
Colorado, holding a prosecutor’s reference to such testimony error,
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much less plain error. See People v. Medina, 51 P.3d 1006, 1017
(Colo. App. 2001) (“A prosecutor is entitled to comment on evidence
admitted at trial and to argue all inferences that can be reasonably
and fairly drawn from such evidence.”), aff’d sub nom. Mata-Medina
v. People, 71 P.3d 973 (Colo. 2003). While a complete record might
afford a basis for further scrutiny, defendant did not provide it.
¶ 188 For these reasons, I discern no obvious error and therefore
would affirm.
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