     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.




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¶ 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.




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    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).




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¶ 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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