Peo v. Scott

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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


                                    3
  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


                                     4
  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


                                     5
  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



                                     6
  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.


                                    7
  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.



                                        8
  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.




                                       9
  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


                                    10
  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.


                                     11
¶ 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).

                                    12
                    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.




                                    13
¶ 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


                                    14
  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


                                    15
  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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