People v. Fortson
2018 COA 46M
Colo. Ct. App.2018Background
- Defendant Ricardo Fortson was convicted by a jury of two counts of sexual assault on a child (one count for alleged sexual intercourse and one pattern-of-abuse count based on alleged oral sex) involving a 14‑year‑old victim, J.W.; Fortson testified and denied the allegations.
- The prosecution introduced (without prior CRE 404(b) notice or a Spoto showing) and repeatedly referred to alleged uncharged sexual acts by Fortson: (a) allegations by at least four other girls and (b) suggestions that Fortson had committed additional uncharged assaults against J.W.
- The prosecutor elicited prior‑act references on cross‑examination of a defense witness (A.K.), played portions of the victim’s forensic interview containing statements that Fortson had “raped other kids,” and made remarks in opening and closing implying other assaults occurred.
- Defense counsel objected only sparingly at trial; the trial court twice interrupted the prosecutor, admonished her, and instructed the jury that only the two charged incidents were at issue; the jury nevertheless convicted Fortson.
- On appeal the majority held the prosecutor’s repeated references to uncharged sexual acts (used for propensity) — introduced without statutory notice or a Spoto analysis — constituted prosecutorial misconduct requiring reversal; a special concurrence would also reverse based on problematic dual‑role expert testimony; a dissent would have affirmed under plain‑error review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor committed misconduct by eliciting/referencing uncharged sexual‑act evidence without complying with §16‑10‑301/CRE 404(b)/Spoto | Prosecution: evidence was not used for propensity; references were proper comments on grooming, credibility, and consistency with the forensic interview | Fortson: prosecutor repeatedly introduced/argued uncharged acts (other children and other acts against J.W.) without notice or Spoto showing and used them to show propensity | Court: Prosecutor engaged in improper conduct — repeatedly brought inadmissible other‑acts evidence before the jury without required notice or Spoto predicate; misconduct reversible. |
| Whether the prosecutor’s opening/closing remarks implying other uncharged assaults warranted reversal (preserved objection vs. plain error) | Prosecution: remarks were permissible argument and fair comment on evidence (e.g., grooming, victim interview) | Fortson: remarks implied prosecutor had extrajudicial knowledge of other assaults and invited propensity inference; prejudicial in a credibility‑dependent case | Court: Remarks were improper, highly prejudicial, and — cumulatively with other misconduct — undermined trial fairness; reversal required. |
| Whether playing the victim’s unredacted forensic interview (including statements about other children) was reversible error | Prosecution: interview was admitted and the whole tape played after pretrial rulings; defense had sought full video in response to rape‑shield/redaction dispute | Fortson: videotape contained inadmissible CRE 404(b) statements that effectively portrayed defendant as a child predator | Court: Even assuming admission, the prosecutor’s use of the video to emphasize uncharged acts contributed to pervasive misconduct; reversal on prosecutorial‑misconduct grounds rendered further trial‑court error analysis unnecessary. |
| Whether expert testimony by the child‑abuse forensic interviewer impermissibly bolstered victim credibility (dual lay/expert role) | Prosecution: expert testimony explained typical victim behavior and was admissible to educate jury; no categorical bar to dual testimony | Fortson: expert intermingled lay facts and expert opinions, indirectly vouched for the victim (eg, “perfect victim,” minimizing inconsistencies), undermining fairness | Special concurrence: Agreeing misconduct alone warranted reversal, would also reverse on the bolstering/dual‑role expert ground because testimonial cross‑over improperly rehabilitated the victim and could have affected the verdict. |
Key Cases Cited
- Wend v. People, 235 P.3d 1089 (Colo. 2010) (standard for reviewing prosecutorial misconduct and appellate duty to prevent miscarriage of justice)
- Spoto v. People, 795 P.2d 1314 (Colo. 1990) (four‑part test for admissibility of other‑act evidence and requirement to articulate an evidential hypothesis)
- Garner v. People, 806 P.2d 366 (Colo. 1991) (prosecution must prove by a preponderance that alleged other act occurred and the defendant committed it before admission)
- Domingo‑Gomez v. People, 125 P.3d 1043 (Colo. 2005) (prosecutor must not intimate personal knowledge of facts unknown to jury or inflame juror passions)
- People v. Estep, 583 P.2d 927 (Colo. 1978) (prosecutor’s leading questions implying prior wrongdoing constitute unsworn testimony and are manifestly improper)
- People v. Oliver, 745 P.2d 222 (Colo. 1987) (prosecutor may not ask questions it knows will elicit inadmissible answers)
- People v. Goldsberry, 509 P.2d 801 (Colo. 1973) (highly prejudicial evidence may not be cured by a generic limiting instruction)
- People v. Wittrein, 221 P.3d 1076 (Colo. 2009) (expert testimony cannot be used to express that the victim was telling the truth on a particular occasion)
- Salcedo v. People, 999 P.2d 833 (Colo. 2000) (risks of dual‑role expert testimony when expert mixes profile/opinion evidence with eyewitness facts)