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People v. Fortson

Court of Appeals of Colorado, Third Division

April 5, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Ricardo Lee Fortson, Defendant-Appellant.

          Fremont County District Court No. 13CR376 Honorable Patrick W. Murphy, Judge

          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

          OPINION

          LICHTENSTEIN, JUDGE.

         ¶ 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.

         ¶ 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 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.

         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 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 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).

         ¶ 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

         ¶ 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.

         ¶ 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 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.
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.").

         ¶ 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 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).

         ¶ 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.

         ¶ 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).

         ¶ 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 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 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 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 ...


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