People v. Fortson
| Decision Date | 05 April 2018 |
| Docket Number | Court of Appeals No. 15CA0413 |
| Citation | 421 P.3d 1236 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricardo Lee FORTSON, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
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 by JUDGE LICHTENSTEIN
¶ 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.
¶ 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.
¶ 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.
¶ 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, ––– P.3d –––– ; 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).
¶ 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 ().
¶ 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, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) ().
¶ 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, 409 P.3d 441 ; 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.
¶ 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.
¶ 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...
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