Opinion by JUDGE LICHTENSTEIN
¶ 1 A jury found Ricardo Lee Fortson guilty of one count of sexual assault on a child based on alleged sexual intercourse with a fourteen-year-old girl, J.W. (Count One), and one count of sexual assault on a child as a part of a pattern of abuse based on alleged oral sex with her (Count Two).
¶ 2 Fortson contends on appeal that the prosecutor engaged in prejudicial misconduct throughout the trial by eliciting and referencing two categories of other uncharged sexual acts as propensity evidence: sexual acts Fortson allegedly committed on other children, and sexual acts Fortson allegedly committed against J.W. prior to the two charged incidents. At trial, defense counsel failed to object to all but one instance of misconduct.
¶ 3 The central issue on appeal is whether this pervasive misconduct so infected the jurys 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 friends family, everyone went to bed except J.W. and Fortson. J.W. testified that, when only the two of them were present, Fortson had sexual intercourse with her.
¶ 7 The next day, J.W. went to a pregnancy crisis center with her mother and told a counselor at the center that she had had sexual intercourse with Fortson the night before. As required by law, the counselor reported this allegation to the police.
¶ 8 J.W. also participated in a series of interviews. While J.W. consistently maintained that she had sexual intercourse with Fortson on the night in question, other details regarding her contacts with Fortson were inconsistent and disputed by other witnesses. There was no male DNA in a vaginal swab taken from J.W. Two DNA experts agreed there was male DNA on J.W.s underwear, but disagreed as to whether the DNA came from semen. They also disagreed about the significance of the conclusion that Fortson could not be excluded as a possible source.
¶ 9 As to Count Two: only during one interview did J.W. allege that on a prior occasion Fortson performed oral sex on her. She said the incident happened in the backyard of B.B.s house. The prosecution did not offer any physical evidence or any eyewitnesses to corroborate this allegation.
¶ 10 But the prosecutor did offer-without advance notice to the court or Fortson-evidence that Fortson previously committed uncharged sexual assaults against four other girls, and intimated during opening statement and closing argument that Fortson likely committed prior uncharged sexual assaults against J.W. With one exception, defense counsel did not object to what Fortson now alleges on appeal is prosecutorial misconduct.
¶ 11 Fortson testified at trial, and denied the allegations. As noted above, the jury found Fortson guilty of both charges.
II. Prosecutorial Misconduct
A. Standard of Review
¶ 12 In reviewing claims of prosecutorial misconduct, we engage in a two-step analysis. First, we determine whether the prosecutors 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, --- P.3d ---- ; Colo. RPC 3.8 cmt. 1. Accordingly, a prosecutor must refrain from improper methods calculated to produce a wrongful conviction. Id. at ¶ 14 ; Harris v. People , 888 P.2d 259, 263 (Colo. 1995).
¶ 14 In this vein, it is improper for a prosecutor to make remarks that evidence personal opinion, personal knowledge, or inflame the passions of the jury. Domingo-Gomez v. People , 125 P.3d 1043, 1050 (Colo. 2005). It is also improper for a prosecutor to purposefully ask a question which he or she knows will elicit an inadmissible answer. People v. Oliver , 745 P.2d 222, 228 (Colo. 1987) ; Am. Bar Assn, 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 defendants other sexual acts, a prosecutor must advise the court and defense counsel in advance of trial of the other acts he or she intends to introduce at trial. See People v. Warren , 55 P.3d 809, 812 (Colo. App. 2002) ; § 16-10-301(4)(a), C.R.S. 2017 ([T]he prosecution shall advise the trial court and the defendant in advance of trial of the other act or acts and the purpose or purposes for which the evidence is offered.).
¶ 17 The dissent takes issue with the majoritys citation to this governing statute because it was not expressly cited by the parties. However, we have an obligation to resolve issues by identifying and applying the correct law. See Kamen v. Kemper Fin. Servs., Inc. , 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (When an issue or claim is properly before the court, the court ... retains the independent power to identify and apply the proper construction of governing law.).
¶ 18 In any event, in his opening brief, Fortson expressly cited Warren , 55 P.3d 809, for the legal proposition that prosecutors are bound by the pretrial notice requirement. Warren clarified that this notice requirement is solely a statutory requirement under section 16-10-301(4)(a) and, thus, applies only to other sexual act evidence. Id. at 812.
¶ 19 In addition to providing pretrial notice, a prosecutor must establish to the court, by a preponderance of the evidence, that the other act did occur and that the defendant committed the act. See People v. Garner , 806 P.2d 366, 373-74 (Colo. 1991) ; see also § 16-10-301(4)(b).
¶ 20 Because evidence of a defendants prior sexual assaults is not permissible to establish propensity, a prosecutor may not elicit other act evidence to prove a defendants bad character and that he acted in conformity with that character. People v. Nardine , 2016 COA 85, ¶ 79, 409 P.3d 441 ; see CRE 404(b) ; § 16-10-301(3). Such evidence may be admissible only for other purposes, including to show motive, opportunity, intent, preparation, common plan, method of operation, knowledge, identity, or absence of mistake. CRE 404(b).
¶ 21 Thus, prior to eliciting such evidence a prosecutor must demonstrate that (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the logical relevance is independent of the intermediate inference that the defendant committed the crime because he or she acted in conformity with his or her bad character; and (4) the evidences probative value is not substantially outweighed by the danger of unfair prejudice. People v. Spoto , 795 P.2d 1314, 1318 (Colo. 1990). The prosecution must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(b). Id. at 1319.
C. The Conduct Was Improper
¶ 22 Fortson contends on appeal that the prosecutor improperly referenced and elicited evidence of other acts of sexual assault and sexual misconduct for propensity purposes, and that she did so without first seeking to admit the evidence, presenting an offer of proof, or obtaining a ruling. We agree with Fortson that this conduct was improper.
¶ 23 The Attorney General does not dispute that the prosecutor introduced the other sexual act evidence and did so without providing notice, making any offer of proof, articulating an evidential hypothesis for admissibility, or obtaining a ruling under the four-part Spoto test. She argues only that the other act evidence was not offered for an improper purpose, and thus there was no error.
¶ 24 But here, the prosecutor repeatedly brought before the jury uncharged acts of sexual assault, specifically that Fortson had previously committed other uncharged sexual assaults against other children and against J.W. We agree with Fortson that the prosecutors failure to follow the requisite procedures and her improper use of this evidence for propensity purposes-as discussed in detail below-constituted misconduct.
¶ 25 We are further compelled to conclude-for the reasons that follow-that the prosecutors misconduct requires reversal of Fortsons convictions. For, above all, it is the appellate courts responsibility to avoid a miscarriage of justice for a defendant even when defense counsel seriously lapses at trial. Wend , 235 P.3d at 1097.
1. Uncharged Sexual Assaults Against Other Children
¶ 26 During trial, the prosecutor elicited evidence of alleged uncharged sexual assaults against four other girls: A.C., B.B., S.L., and A.B., as well as vague allegations of acts committed against other kids.
a. Cross-Examination of A.K.
¶ 27 Fortson called A.K. (J.W.s former friend) as a defense witness to testify that J.W. had told her about her motive to falsely accuse Fortson of sexual assault. A.K. testified that J.W. said she was angry because Fortson had declined her sexual advances, thus J.W. was going to make him regret it and she was going to get her revenge.
¶ 28 The prosecutor then cross-examined A.K., first asking relevant questions that challenged the testimony about J.W.s motive. The prosecutor asked A.K. whether J.W. had, in fact, told her that Fortson put his hand up the leg of J.W.s shorts, was rubbing around and smiling at her (rather than declining J.W.s sexual advances). And the prosecutor asked whether J.W. had told A.K. that she did not want to get Fortson in trouble with the police because he worked for the prison (rather than trying to get revenge).
¶ 29 But then, the prosecutor started asking A.K. questions unrelated to J.W.s allegations or motive. The prosecutor asked about statements that A.K. had made to a forensic interviewer relaying what other girls had told her. A.K. told the interviewer that these other girls also accused Fortson of improper sexual conduct.
Prosecutor: Do you recall telling [the interviewer] that B.B. told you that at one time [Fortson] was changing his clothes, asked her to bring in his laptop; and when she did, she walked in the room and he-she dropped the laptop because he was completely naked?
A.K.: No, maam.
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, maam.
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, maam.
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, maam.
¶ 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 prosecutors questions elicited inadmissible CRE 404(b) evidence. And we conclude that such conduct was manifestly improper. People v. Estep , 196 Colo. 340, 344, 583 P.2d 927, 930 (1978) ; see also Standards for the Prosecution Function 3-6.6(d) (The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible ... by ... asking legally objectionable questions.).
¶ 32 Even though A.K. responded that she did not remember making the statements, the prosecutors 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 (prosecutions conduct in asking an objectionable question was error).
¶ 34 We are not persuaded by the Attorney Generals assertion that this conduct was permissible because the prosecutor was planning to impeach A.K.s credibility by asking her these questions, eliciting denials, and then showing the jury the video of A.K.s actual interview.
¶ 35 The prosecutors 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 prosecutors plan was to ask legally objectionable questions to elicit the highly prejudicial inadmissible evidence of Fortsons 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 , 287 Kan. 713, 200 P.3d 1, 11 (2009) (a party cannot open its own door to create an opportunity for the admission of otherwise inadmissible evidence).
¶ 38 The dissent does not view the prosecutors 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 prosecutors 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 Fortsons sexual conduct against other children, which was not a permissible use of uncharged sexual act evidence, under either CRE 404(b) or CRE 608.
¶ 41 Because the prosecutor intentionally brought inadmissible evidence of Fortsons bad character to the jurys attention by cross-examining A.K. about Fortsons alleged uncharged sexual acts, the prosecutor engaged in misconduct and disregarded her duty to refrain from improper methods calculated to produce a wrongful conviction. Harris , 888 P.2d at 263 ; Robinson , ¶ 14.
b. Other Act Allegations in Video Recording
¶ 42 Compounding this error, the prosecutor played for the jury the very end of the video recording of J.W.s forensic interview, where the forensic interviewer ultimately asked J.W. what she wanted to happen to Fortson. J.W. told the interviewer that she wanted him caught because another girl, A.C., got raped by Fortson, that Fortson had hurt more kids than me, that he had raped other kids, and that B.B. told her this was not the first time he did this.
¶ 43 For reasons that are inexplicable to us, defense counsel did not request the redaction of these statements, even though they portrayed Fortson as a sexual predator of children and risked a guilty verdict based on a conclusion that Fortson sexually assaulted J.W. in conformity with his bad character. See CRE 404(b).
¶ 44 Yet even without objection, it is improper for a prosecutor to knowingly, and for the purpose of bringing inadmissible matter to the attention of the judge or jury, offer inadmissible evidence. See People v. Mullins , 104 P.3d 299, 301-02 (Colo. App. 2004) (finding plain error where prosecutor elicited inadmissible testimony); see also Standards for the Prosecution Function 3-6.6(d).
¶ 45 The dissent opines that defense counsel may have wanted the jury to hear this evidence, given his earlier request that the entire video be played. But that request must be placed in context: it was made in response to the prosecutors 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 prosecutors opening statement and closing argument, she expressed her belief that Fortson committed other uncharged sexual assaults against J.W. This, too, was improper.
a. Opening Statements
¶ 47 During her opening statement, the prosecutor told the jury, I cant 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 prosecutors 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 prosecutors remark is a matter of special concern because there is a possibility that the jury will give greater weight to the prosecutors arguments because of the prestige associated with the office and the presumed fact-finding capabilities available to the office. Id. at 1049.
¶ 50 Further, a prosecutor may not, in an opening statement, induce the jury to determine guilt on the basis of passion or prejudice. People v. Manyik , 2016 COA 42, ¶ 27, 383 P.3d 77 (quoting People v. Douglas , 2012 COA 57, ¶ 66, 296 P.3d 234 ). 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 prosecutors comments which express the prosecutions 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 prosecutors opening statement may have been referring to J.W.s forensic interview, during which J.W. referenced what the dissent refers to as other misconduct. But in that interview, other than describing the charged incident, J.W. said only that Fortson had previously touched her legs . As the forensic interviewer confirmed in her trial testimony, the charged incident of sexual intercourse was the only disclosure of sexual assault J.W. made in that interview.
b. Closing Argument
¶ 53 During closing argument, the prosecutor argued repeatedly that the jury could consider, as evidence of Fortsons guilt, uncharged prior sexual assaults.
¶ 54 The prosecutor argued to the jury:
And I would also tell you, it doesnt 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, its just not. Theres 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:
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], weve 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 courts admonishment, she quickly returned to the topic of Fortsons other, uncharged acts of sexual assault:
Its those two incidents [of sexual intercourse and oral sex] are what Im 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, Im objecting. And as a matter of fact, I have a motion. At 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 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 prosecutors 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 prosecutors intimations about these uncharged sexual assaults against J.W. encouraged the jury to misuse this information as evidence of Fortsons 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 prosecutors 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 counsels objections and the trial courts warning to her to be very careful in your comments in this area. Given the prosecutors obvious knowledge that this evidence had not been admitted for any purpose-in light of the trial courts admonishment and defense counsels 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 Generals assertion that the prosecutors closing argument was a proper comment on evidence of grooming. To be sure, the forensic interviewer testified about grooming behavior. But the prosecutors 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 offenders methods of acquiring victims to lower their inhibitions. Romero v. People , 2017 CO 37, ¶ 15, 393 P.3d 973. 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, 409 P.3d 490 ; People v. Miranda , 2014 COA 102, ¶ 53, 410 P.3d 520. It precedes the later criminal sexual act and involves a pattern of seduction and preparation, resulting in the child being willing and compliant to the defendants sexual abuse. Miranda , ¶ 53 (citation omitted); see People v. Garrison , 2017 COA 107, ¶ 40 n.5, 411 P.3d 270.
¶ 64 But here, the prosecutors 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 Fortsons counsel objected during the prosecutors 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 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 prosecutors argument significantly risked a guilty verdict based on considerations other than the evidence of the charged acts presented at trial. See Wilson v. People , 743 P.2d 415, 419 (Colo. 1987). Ordinarily, of course, the sustaining of an objection or a trial courts 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 prosecutors 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 conclude that admonition was insufficient to remedy the prejudice. 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 prosecutors 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.
¶ 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 dissents 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 defendants constitutionally guaranteed right to a fair trial is unsupported by any legal authority of which we are aware.
¶ 74 The dissent focuses on fairness to the trial court and whether the trial court deserves better as a reason for not correcting obvious trial errors. In this regard, the dissent posits that when an appellate court finds plain error, then by implication [it is] impugning the trial judges competence. Infra , ¶ 180.
¶ 75 To be sure, fairness to all participants in the process is essential (and indeed, constitutionally guaranteed for criminal defendants). Yet, the dissents focus on fairness to the trial court ignores the overarching purpose of criminal proceedings, which is to fairly and reliably adjudicate allegations of criminal conduct. We simply reject the proposition that by correcting obvious errors in criminal cases we are somehow impugning the competence or abilities of the trial courts.
¶ 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, 390 P.3d 832 (citation omitted). Here, as 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, 288 P.3d 116. For, above all, it is the appellate courts 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 prosecutors statements by considering the 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 courts sua sponte admonishment and defense counsels objections during closing. See Walters , 148 P.3d at 338 (noting that plain error review requires a consideration of any persistent, improper 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 prosecutors 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 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 jurys assessment of J.W.s and Fortsons 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 victims] 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 prosecutions 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 present on the inside of J.W.s underwear. The defense DNA expert disagreed with the conclusion that there was semen in the victims 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 prosecutors 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 prosecutors pervasive misconduct in the context of the entire record, we are convinced that it undermined 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, Fortsons 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 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 Fortsons argument on appeal that the child abuse expert improperly bolstered the victims 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 defendants] 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 detectives testimony about the drug courier profile was unduly prejudicial. Id. The court did not hold that the detectives testimony was categorically proscribed because he testified as both an expert witness and as an eyewitness. Id. Instead, the court concluded that the detectives 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 defendants actions and appearance. Id.
¶ 99 While such dual capacity testimony is problematic for several reasons identified in Salcedo and the reasons identified in Judge Bergers 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 victims alleged sexual activity with her boyfriend under the rape shield statute because the evidence was relevant both to show an alternate source for the victims sexual knowledge and to show an alternate source of the DNA found in her underwear.
¶ 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 statutes 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 Fortsons convictions are reversed, and the case is remanded for a new trial.
JUDGE BERGER specially concurs.
JUDGE WEBB dissents.
Fortson also alleged that the prosecutor improperly (1) vouched for the credibility of the prosecutions DNA expert; (2) denigrated the defenses 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).
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.