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
Douglas K. Wilson, Colorado State Public Defender, Alan
Kratz, Deputy State Public Defender, Denver, Colorado, for
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. 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.
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
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.
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.
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.
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
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
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 §
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.
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.
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."
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
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
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)
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
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
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.
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.
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.
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 ...