Peo v. Scott

23CA0010 Peo v Scott 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0010
City and County of Denver District Court No. 21CR5179
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Foster Lee Scott,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE TOW
Lum and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

Philip J. Weiser, Attorney General, Jacey DeHoyos, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Foster Lee Scott, appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

assault – victim incapable of appraising nature of their conduct.

We affirm.

I. Background

¶2 The jury heard evidence that would support the following

findings.

¶3 A.A. was in her friend’s car in a fast-food drive-through line.

A.A., who was intoxicated, got out of the vehicle and wandered in

the direction of a nearby parking lot. At that time, Scott was in the

parking lot waiting for a friend. Scott started a conversation with

A.A. A.A. and Scott had conflicting recollections of what happened

the remainder of that night.

¶4 The next morning, A.A. woke up, still in the parking lot, naked

under Scott’s sleeping bag. Scott was asleep next to her without

pants on. After Scott woke up, the two briefly spoke before A.A. left

the parking lot and made her way to her friend’s house. Later that

day, A.A. filed a report with the police alleging that Scott had

sexually assaulted her, and underwent an examination with a sex

assault nurse examiner (SANE).

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¶5 The prosecution charged Scott with sexual assault of a victim

who was incapable of appraising the nature of her conduct

pursuant to section 18-3-402(1)(b), C.R.S. 2025. At trial, A.A.

testified that she woke up during the night to Scott having sex with

her. Scott testified that he had fallen asleep after conversing with

A.A. and awoke to A.A. on top of him, grinding, and that he pushed

her off by her breasts before going back to sleep. Scott’s defense

theory at trial was that A.A. attempted to initiate a sexual

encounter with him, and that his use of methamphetamine earlier

that evening prevented him from engaging in sexual activities. The

jury convicted Scott as charged. The court sentenced Scott to five

years to life in the custody of the Department of Corrections.

II. Impeachment with Prior Conviction

¶6 Scott contends that the trial court erred, and consequently

violated his due process rights, when it allowed the prosecution to

impeach him with his prior felony conviction for failure to register

as a sex offender. We disagree.

A. Standard of Review and Applicable Law

¶7 We review de novo whether a due process violation occurred.

People v. Burlingame, 2019 COA 17, ¶ 11. And “we review a trial

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court’s evidentiary rulings for an abuse of discretion.” People v.

Clark, 2015 COA 44, ¶ 14. “A trial court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law.” People v. Williams, 2019 COA 32, ¶ 20.

¶8 When a witness chooses to testify, “the credibility of the

witness may be drawn in question, . . . [and] the conviction of any

person for any felony may be shown for the purpose of affecting the

credibility of such witness.” § 13-90-101, C.R.S. 2025. “The fact of

such conviction may be proved like any other fact, not of record,

either by the witness [themself], who shall be compelled to testify

thereto, or by any other person cognizant of such conviction as

impeaching testimony or by any other competent testimony.” Id.

B. Analysis

¶9 Scott argues that the trial court violated his right to a fair trial

by an impartial jury when it allowed the prosecution to impeach

Scott through his 2016 felony conviction for failure to register as a

sex offender. In support of this argument, Scott contends that the

trial court abused its discretion by (1) admitting the felony

conviction because it “stemmed from” a juvenile adjudication;

(2) failing to conduct an evidentiary balancing test prior to the

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admission of the conviction; and (3) refusing to sanitize the nature

of the prior felony conviction. We discern no error.

1. Scott’s Juvenile Adjudication for a Sex Offense Has No Bearing
on Whether Use of his Adult Felony Conviction Was Proper
Impeachment

¶ 10 Scott argues that his prior felony conviction for failing to

register as a sex offender was inadmissible because the impetus of

his obligation to register as a sex offender was a juvenile

adjudication for sexual assault that occurred when he was fifteen

years old. We recognize that a “Colorado juvenile delinquency

adjudication may not be used for impeachment purposes because

such an adjudication does not occur in a criminal proceeding and,

therefore, is not a felony conviction.” People v. D’Apice, 735 P.2d

882, 883 (Colo. App. 1986). But the prosecutor did not impeach

Scott with his juvenile adjudication; he was impeached with his

felony conviction for failure to register, which occurred when he was

twenty-seven years old. Scott cites no authority — and we are

aware of none — supporting his contention that an adult felony

conviction for failure to register as a sex offender does not count as

a felony under section 13-90-101 if the registration obligation arose

from a juvenile adjudication. Significantly, this contention finds no

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safe harbor in the language of the statute itself, which

unequivocally applies to “any felony.” § 13-90-101 (emphasis

added).

¶ 11 Scott also argues that the trial court should have considered

(and we should consider) the effects of HB 21-1064, “which created

an auto-removal process for juvenile registrants [from the sex

offender registration] who reach twenty-five years of age or are

seven years from the date they were required to register.” Scott

argues that the trial court should not have considered his felony

conviction for failure to register under section 13-90-101 because

he would have been automatically removed from the sex offender

registry if HB 21-1064 had been in effect at the time of his

conviction. In sum, Scott argues that because he is no longer

required to register as a sex offender (and would not have been

required to do so had the legislature enacted the 2021 statute six

years earlier), he is somehow protected from having that felony used

to impeach his credibility.

¶ 12 Again, Scott cites no authority for this argument. Indeed,

existing precedent requires the opposite conclusion. “[T]he

legislative intent underlying the statute is to classify a crime as a

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felony . . . based upon its classification at the time of the commission

of the offense.” People v. Anders, 559 P.2d 239, 242 (Colo. App.

1976) (emphasis added). Scott committed a felony when he failed to

register as a sex offender within the required timeframe. The

subsequent passage of HB 21-1064 “does not change the fact that

[Scott] did, at the time, commit a felony.” Anders, 559 P.2d at 239.

2. Trial Court Was Not Required to Evaluate the Admission of the
Felony Conviction Under CRE 403 or CRE 404(b)

¶ 13 Scott next contends that the trial court erred when it failed to

conduct a balancing test under CRE 403 or to evaluate the

conviction under CRE 404(b) prior to allowing the prosecutor to

cross-examine Scott on his felony conviction. Relevant evidence

may be excluded “if its probative value is substantially outweighed

by the danger of unfair prejudice.” CRE 403. And “[e]vidence of

any other crime . . . is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in

conformity with the character.” CRE 404(b)(1).

¶ 14 Scott argues that we should look to the holding in Old Chief v.

United States, 519 U.S. 172, 180 (1997), in which the United States

Supreme Court held that, when a prior felony conviction is an

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element of the substantive offense with which the defendant is

charged, the admission of the name and nature of the defendant’s

prior conviction was more prejudicial than probative given the

similarities between that prior offense and the one at issue.

Notably, Scott concedes that “the holding in Old Chief was limited to

cases involving proof of felon status,” but nevertheless argues that

“its rationale is equally applicable here.” We disagree.

¶ 15 In Old Chief, the Supreme Court acknowledged that in the

context of proving a defendant’s status as a felon for purposes of

the substantive elements of the offense charged, “the fact of the

qualifying conviction is alone what matters under the statute,” and

the admission of the name and the nature of the offense served no

additional purpose. Id. at 190. But the Supreme Court

acknowledged that the specific felony conviction may have been

proper for impeachment but for the fact that the defendant did not

testify. Id. at 176 n.2.

¶ 16 We conclude that Old Chief has no application here because,

as Scott concedes in his opening brief, trial courts have “no

discretion to prohibit the use of a felony conviction to impeach a

witness’ testimony.” People v. Silva, 987 P.2d 909, 919 (Colo. App.

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1999). And Colorado has chosen not to adopt a rule of evidence

requiring the trial court to conduct a CRE 403 balancing test prior

to admitting evidence of felony convictions when impeaching a

witness. People v. Diaz, 985 P.2d 83, 86 (Colo. App. 1999). Thus,

the trial court was under no obligation to weigh the prejudicial

nature of Scott’s felony conviction for failure to register against its

probative value for impeachment purposes.

¶ 17 Scott relatedly argues that he had a prior conviction for motor

vehicle theft that the prosecution could have used to impeach him

without incurring any undue prejudice. We reject this argument as

well because the prosecution was under no obligation to do so, and

the trial court lacked discretion to force it to do so. Silva, 987 P.2d

at 919; Diaz, 985 P.2d at 86.

3. Trial Court Could Not Sanitize the Nature of Scott’s Prior
Felony Conviction

¶ 18 Finally, Scott argues that the trial court “misapprehended the

law regarding its discretion to sanitize the nature of the prior felony

conviction.” We disagree. “When a defendant testifies, the trial

court may not foreclose the use of the name, nature, and date of his

prior felony convictions for impeachment purposes.” People v.

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Hardy, 677 P.2d 429, 431 (Colo. App. 1983). The trial court was

not at liberty to sanitize Scott’s prior conviction per defense

counsel’s request.

III. Prosecutorial Misconduct

¶ 19 Scott next argues that he was deprived of a fair and impartial

jury based on several instances of prosecutorial misconduct and

that the cumulative effects of these errors prejudiced him. We

disagree.

A. Standard of Review and Applicable Law

¶ 20 In analyzing a prosecutorial misconduct claim, the reviewing

court must determine (1) whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances,

and (2) whether such actions warrant reversal according to the

proper standard of review. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). A prosecutor has wide latitude to make arguments

based on facts in evidence and reasonable inferences drawn from

those facts. People v. Maloy, 2020 COA 71, ¶ 61. “Only

prosecutorial misconduct which is ‘flagrantly, glaringly, or

tremendously improper’ warrants reversal.” Domingo-Gomez v.

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People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila,

944 P.2d 673, 676 (Colo. App. 1997)).

¶ 21 When a defendant did not contemporaneously object to the

statements being challenged on appeal, we will reverse only if the

error was plain. Wend, 235 P.3d at 1097. A plain error is one that

is obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 18.

“We have recognized plain error as those errors that ‘so undermined

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction.’” Id. (quoting Wilson

v. People, 743 P.2d 415, 420 (Colo. 1987)).

¶ 22 “For reversal to occur based on cumulative error, a reviewing

court must identify multiple errors that collectively prejudice[d]” the

defendant’s substantial rights. Howard-Walker v. People, 2019 CO

69, ¶ 25.

B. Analysis

1. Veracity and Victim Status

¶ 23 Scott argues that the prosecution improperly asked him to

comment on A.A.’s veracity.

¶ 24 During cross-examination, the prosecutor asked Scott whether

A.A. “was sexually advancing on [him]?” Scott answered

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affirmatively. When asked whether that “was . . . a wanted sexual

advance,” he answered “no.” The prosecutor then summarized this

exchange by stating, “[s]o in reality, you’re the victim[?]” The trial

court overruled defense counsel’s objection to the question and

Scott responded “yes.” During closing arguments, the prosecutor

referred to this exchange, stating that “while there is absolutely no

right way to be a victim, there is a wrong way, and that is what

[Scott] did moments ago when he took the stand . . . after he had

sexually assaulted that woman, and pretended that he was the

victim.”

¶ 25 Relying on Liggett v. People, 135 P.3d 725 (Colo. 2006), Scott

argues that “prosecutors cannot ask a defendant or witness to

comment on the veracity of another witness.” Though Scott

accurately states the law, he inaccurately characterizes the

prosecutor’s actions. The prosecutor merely asked Scott about his

theory of defense. At no point was Scott asked to opine on A.A.’s

veracity.

¶ 26 Defense counsel also argues that the prosecutor insinuated

that Scott lied when testifying and expressed the prosecutor’s

personal opinion about his credibility. Again, we disagree.

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¶ 27 By testifying, Scott made his credibility a “proper subject[] for

the jury to consider.” People v. Walters, 148 P.3d 331, 335 (Colo.

App. 2006). True, it is improper for a prosecutor to express their

personal opinion about the credibility of a defendant. Id. But

“counsel may point to circumstances casting doubt on a witness’s

testimony and may draw reasonable inferences from the evidence

regarding the credibility of witnesses.” People v. Dunlap, 124 P.3d

780, 809-10 (Colo. App. 2004). That is what the prosecutor did,

while at the same time explicitly reminding the jury that the

prosecutor’s arguments were not evidence. The prosecutor went

through the evidence step by step, pointing out the illogic of and

inconsistencies in Scott’s description of the events. We thus

discern no error in the prosecutor’s argument.1

1 Even if we were to assume the prosecutor’s comment that Scott

was “pretend[ing] to be a victim” was an expression of personal
opinion that amounted to prosecutorial misconduct, we would not
be able to say that this unobjected to comment constituted plain
error. This was a brief and isolated comment made at the
beginning of the prosecutor’s closing argument. See People v. Rhea,
2014 COA 60, ¶ 71. And “we discern no substantial likelihood that
the comment affected the verdict or deprived defendant of a fair
trial.” Id. (citation modified).

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2. Prosecutor’s Burden of Proof

¶ 28 Scott also contends that the prosecutor lowered her burden of

proof when she implied that, to acquit Scott, the jury would have to

believe A.A. concocted her entire story. We discern no error.

¶ 29 During closing arguments, the prosecutor walked through

Scott’s portrayal of events. In doing so, she explained that his story

“made absolutely no sense,” as Scott claimed that A.A. “was sober,

but she got out of the car, climbed on top of him and just

immediately stripped off her clothes.” The prosecutor explained

that Scott’s version had A.A. “concoct[ing] this story to get him in

trouble. She went to a SANE exam. She had a speculum inserted

into [her] vagina. She had antibiotics she was forced to take. . . . It

doesn’t make sense because it’s not what happened.”

¶ 30 A prosecutor cannot argue that the jury must find a witness

lied to acquit the defendant. People v. Cuellar, 2023 COA 20, ¶ 67.

Scott argues the prosecutor did as much, and in turn lowered her

burden of proof, when she implied that “the jury must find A.A.

‘concocted this story’ to acquit Mr. Scott.” But Scott

misapprehends the case law.

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¶ 31 While it is not appropriate to imply “that the fact-finder must

determine one or more of the witnesses is lying,” the prosecutor

may “juxtapose conflicting accounts of the facts and ask the

fact-finder to resolve the dispute.” Liggett, 135 P.3d at 732. Here,

the prosecutor’s statements did nothing more than highlight the

inconsistencies within Scott’s recollection of the evening. She did

not at any point tell the jury that they must find that A.A. was lying

in order to acquit Scott. See People v. Collins, 250 P.3d 668, 678

(Colo. App. 2010).

3. Denigration of Defense Counsel Theory

¶ 32 Next, Scott contends that the prosecutor improperly

denigrated defense counsel’s theory of the case when she

characterized it as “ridiculous” and “not reasonable.” Again, we

disagree.

¶ 33 A prosecutor commits professional misconduct if they make

remarks clearly intentioned to denigrate defense counsel’s

arguments. Cuellar, ¶ 71. But prosecutors also have “wide latitude

to respond to defense counsel’s argument[s].” Id.

¶ 34 During closing arguments, the prosecutor described as

“ridiculous” defense counsel’s theory that “[Scott’s] DNA [was] all

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over [A.A.’s] body” because she was “naked and on top of him,

grinding.” In the same train of thought, the prosecutor stated that

defense counsel’s answer to how this occurred — via

“transfer” — was “not reasonable” because it would be

“unreasonable to think that women are walking around in the world

putting objects inside their vagina to transfer.”

¶ 35 The prosecutor’s characterization of this argument was

grounded in the expert witness’s testimony, who explained that for

“DNA [to] transfer from somebody else . . . to inside of another

person’s vagina,” that “something has to transfer the DNA to an

internal body swab,” and that a transfer of that nature “doesn’t

happen just through kind of casual contact or just background

DNA.” In sum, the prosecutor was arguing that something with

Scott’s DNA on it had to enter A.A.’s vagina for Scott’s DNA to have

been found inside of her vagina as shown in the SANE exam, and

the most reasonable explanation for that transfer was penetrative

sex. Thus, it was a fair comment on the evidence.

¶ 36 Moreover, the prosecutor was responding to defense counsel’s

argument. Scott’s primary defense was that he did not engage in

any sexual activity with A.A., and he explicitly denied engaging in

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any penetrative sexual activity. This portion of the prosecutor’s

closing argument focused on Scott’s denial. She then countered it

by asking the jury to consider the expert’s testimony, which

suggested that Scott’s version of how his DNA came to be found

inside A.A.’s vagina was not consistent with known science. See

Collins, 250 P.3d at 678 (holding that prosecutor’s remark was a

response to defense counsel’s assertions, as opposed to a personal

attack on defense).

C. Cumulative Error

¶ 37 Finally, Scott argues that the cumulative effect of these

purported errors prejudiced the jury in such a way as to require

reversal of Scott’s conviction. We have identified only one argument

that was, at most, arguably improper — namely, the prosecutor’s

comment that Scott “pretended that he was the victim.” Even if this

single instance rose to the level of misconduct, a single error cannot

support reversal based on cumulative error. Howard-Walker, ¶ 25.

IV. Disposition

¶ 38 The judgment is affirmed.

JUDGE LUM and JUDGE MOULTRIE concur.

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