CO Code § 16-10-301 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 10 - Jury Trials|Part 3 - Evidence of Similar Transactions|§ 16-10-301. Evidence of Similar Transactions - Legislative Declaration

  The general assembly hereby finds and declares that sexual offenses are a matter of grave statewide concern. These frequently occurring offenses are aggressive and assaultive violations of the well-being, privacy, and security of the victims, are severely contrary to common notions of proper behavior between people, and result in serious and long-lasting harm to individuals and society. These offenses often are not reported or are reported long after the offense for many reasons, including: The frequency with which the victims are vulnerable, such as young children who may be related to the perpetrator; the personal indignity, humiliation, and embarrassment involved in the offenses themselves; and the fear of further personal indignity, humiliation, and embarrassment in connection with investigation and prosecution. These offenses usually occur under circumstances in which there are no witnesses except for the accused and the victim, and, because of this and the frequent delays in reporting, there is often no evidence except for the conflicting testimony. Moreover, there is frequently a reluctance on the part of others to believe that the offenses occurred because of the inequality between the victim and the perpetrator, such as between the child victim and the adult accused, or because of the deviant and distasteful nature of the charges. In addition, it is recognized that some sex offenders cannot or will not respond to treatment or otherwise resist the impulses which motivate such conduct and that sex offenders are extremely habituated. As a result, such offenders often commit numerous offenses involving sexual deviance over many years, with the same or different victims, and often, but not necessarily, through similar methods or by common design. The general assembly reaffirms and reemphasizes that, in the prosecution of sexual offenses, including in proving the corpus delicti of such offenses, there is a greater need and propriety for consideration by the fact finder of evidence of other relevant acts of the accused, including any actions, crimes, wrongs, or transactions, whether isolated acts or ongoing actions and whether occurring prior to or after the charged offense. The general assembly finds that such evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time.    This section applies to prosecution for any offense involving unlawful sexual behavior as defined in section 16-22-102 (9), or first degree murder, as defined in section 18-3-102 (1)(d), C.R.S., in which the underlying felony on which the first degree murder charge is based is the commission or attempted commission of sexual assault, as described in section 18-3-402, C.R.S., sexual assault in the first or second degree as those offenses were described in sections 18-3-402 and 18-3-403, C.R.S., as they existed prior to July 1, 2000, or the commission of a class 3 felony for sexual assault on a child as defined in section 18-3-405 (2), C.R.S.    The prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity, including: Refuting defenses, such as consent or recent fabrication; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; showing motive, opportunity, intent, preparation, including grooming of a victim, knowledge, identity, or absence of mistake or accident; or for any other matter for which it is relevant. The prosecution may use such evidence either as proof in its case in chief or in rebuttal, including in response to evidence of the defendant's good character.    If the prosecution intends to introduce evidence of other acts of the defendant pursuant to this section, the following procedures shall apply:   The 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.    The trial court shall determine by a preponderance of the evidence whether the other act occurred and whether the purpose is proper under the broad inclusionary expectations of this section.    The trial court may determine the admissibility of other acts by an offer of proof.    The trial court shall, at the time of the reception into evidence of other acts and again in the general charge to the jury, direct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.    The court in instructing the jury, and the parties when making statements in the presence of the jury, shall use the words “other act or transaction” and at no time shall refer to “other offense”, “other crime”, or other terms with a similar connotation.       The procedural requirements of this section shall not apply when the other acts are presented to prove that the offense was committed as part of a pattern of sexual abuse under section 18-3-405 (2)(d), C.R.S.     History. Source: L. 75: Entire part added, p. 614, § 1, effective April 3. L. 85: (1) amended, p. 622, § 4, effective July 1. L. 87: (1) amended, p. 605, § 5, effective July 1. L. 96: Entire section R&RE, p. 1578, § 1, effective July 1. L. 2000: (2) amended, p. 701, § 22, effective July 1. L. 2002: (2) amended, p. 1182, § 7, effective July 1; (4)(c) amended, p. 761, § 10, effective July 1.    Cross references:   For the admissibility of evidence of other crimes, wrongs, or acts, see C.R.E. 404(b).   ANNOTATION   Section not circumscribed by statute of limitation. This section establishes the criteria for admission of testimony relating to similar acts and should not be circumscribed by a statute of limitation on sexual offenses. Adrian v. People, 770 P.2d 1243 (Colo. 1989) (overruling Bigcraft v. People, 70 P. 417 (Colo. 1902); Curtis v. People, 211 P. 381 (Colo. 1922); Abbott v. People, 299 P. 1053 (Colo. 1931); People v. Denious, 196 P.2d 257 (Colo. 1948)).   Guilt of one offense may not be proven by guilt of another. It is a fundamental concept of criminal law that an accused is not to be convicted of one offense by proof that he is guilty of another. People v. Martin, 43 Colo. App. 44, 602 P.2d 873 (1979).   “Acts or transactions” need not be criminal in nature. Subsection (1) refers to “acts or transactions”, not to offenses or crimes, and thus permits admission of evidence of events, not necessarily criminal in nature, for the limited purposes specified. People v. Opson, 632 P.2d 602 (Colo. App. 1980); People v. Girtman, 695 P.2d 759 (Colo. App. 1984).   Admissibility of prior criminal transactions discretionary. The trial court has substantial discretion in deciding the admissibility of evidence of a prior criminal transaction, and only where there is an abuse of discretion will the ruling of the trial court be disturbed. Pigford v. People, 197 Colo. 358 , 593 P.2d 354 (1979); People v. Delgado, 890 P.2d 141 (Colo. App. 1994).   Evidence of prior criminal transactions not admissible where defendant was acquitted of similar act. The doctrine of collateral estoppel prevents the introduction of evidence of similar transactions for which a defendant has been acquitted. People v. Arrington, 682 P.2d 490 (Colo. App. 1983).   Collateral estoppel does not bar the introduction of prior act evidence relating to charges of which defendant was previously acquitted when it is presented in a subsequent action where the admission of the evidence is governed by a lower standard of proof than the acquittal. People v. Wallen, 996 P.2d 182 (Colo. App. 1999) (disagreeing with People v. Arrington, 682 P.2d 490 (Colo. App. 1983)).   Evidence admissible that defendant did not commit other similar act. If all the similar acts and circumstances, taken together, may support a finding that the same person was probably involved in both transactions, then evidence that the defendant did not commit the second transaction is relevant and admissible. People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed for want of substantial federal question, 459 U.S. 803, 103 S. Ct. 25, 74 L. Ed. 2d 41 (1982).   Admissibility decided on case-by-case basis. Admissibility of defensive similar offense evidence must be decided on a case-by-case basis, according to general relevancy considerations. People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed for want of substantial federal question, 459 U.S. 803, 103 S. Ct. 25, 74 L. Ed. 2d 41 (1982); People v. Montoya, 703 P.2d 606 (Colo. App. 1985).   Exclusionary rule inapplicable when defendant offers similar offense evidence. When a defendant offers similar offense evidence for defensive reasons, the concerns which gave rise initially to the exclusionary rule are no longer relevant. People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed for want of substantial federal question, 459 U.S. 803, 103 S. Ct. 25, 74 L. Ed. 2d 41 (1982); People v. Rollins, 892 P.2d 866 (Colo. 1995).   Evidence of prior similar episodes is proper in sexual assault cases, regardless of whether the evidence of similar episodes relates to acts with persons other than the complaining witness and even if a prima facie case of the defendant's intent is first established. People v. Pigford, 40 Colo. App. 523, 580 P.2d 820 (1978), aff'd, 197 Colo. 358 , 593 P.2d 354 (1979); People v. Allen, 42 Colo. App. 345, 599 P.2d 264 (1979).   Evidence of prior similar transactions is admissible to prove, among other things, plan, scheme, design, and motive, and this is particularly so in sexual assault cases. People v. Vollentine, 643 P.2d 800 (Colo. App. 1982); People v. Montoya, 703 P.2d 606 (Colo. App. 1985); People v. Mosley, 167 P.3d 157 (Colo. App. 2007); People v. Bondsteel, 2015 COA 165 , 442 P.3d 880, aff'd, 2019 CO 26, 439 P.3d 847.   Length of time between two acts. In addition to the degree of similarity between the earlier act and the act in question and the relevance of the similar act, the trial court should consider the length of time between the two acts when deciding whether to admit evidence of a similar sexual offense. An offense committed six years earlier is somewhat remote in time and, considered in light of all the other evidence, would be unduly prejudicial if admitted. People v. Wells, 754 P.2d 420 (Colo. App. 1987), rev'd on other grounds, 776 P.2d 386 (Colo. 1989).   Considering the circumstances, prior incidents of sexual abuse were not too remote when there was interval of ten to twelve years between the childhood abuse and the charges for which the defendant was being charged. The defendant and the victim's mother were divorced during that period and the defendant had had no contact with the victim for four years and only limited contact with her thereafter. People v. Fell, 832 P.2d 1015 (Colo. App. 1991).   There are few absolute rules on the number of years that can separate two instances of conduct without destroying the evidentiary value of one. People v. Adrian, 744 P.2d 768 (Colo. App. 1987), aff'd, 770 P.2d 1243 (Colo. 1989); People v. Fell, 832 P.2d 1015 (Colo. App. 1991).   Offenses committed approximately ten to twelve years earlier are not too remote in time where the defendant and victim's mother were divorced and the defendant had had no contact with the victim for four years and only limited contact with her thereafter. Therefore, the prior incidents of sexual abuse were not too remote in time, and, consequently, no undue prejudice to defendant resulted from their admission. People v. Fell, 832 P.2d 1015 (Colo. App. 1991).   The general assembly has expressed a policy of favoring the admission of other acts evidence even when the incidents are remote from one another in time. People v. Shores, 2016 COA 129 , 412 P.3d 894.   Evidence of prior similar transactions is admissible in cases of sexual assault on a child if such evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent. People v. Adrian, 744 P.2d 768 (Colo. App. 1987), aff'd, 770 P.2d 1243 (Colo. 1989); People v. Snyder, 874 P.2d 1076 (Colo. 1994); People v. Nara, 964 P.2d 578 (Colo. App. 1998) (decided under law in effect prior to the 1996 repeal and reenactment).   The testimony regarding prior similar acts by four witnesses was logically relevant to defendant's identity and intent, apart from any inference of propensity, thus trial court did not abuse its discretion in admitting it. People v. Larson, 97 P.3d 246 (Colo. App. 2004).   Trial court did not abuse discretion in admitting evidence of prior incident of sexual assault on a child where incident had occurred eight years earlier, the evidence was introduced only to prove identity, and the jury was instructed that identity was the only purpose for which the evidence could be considered. People v. Apodaca, 58 P.3d 1126 (Colo. App. 2002).   To refute the defense of recent fabrication, evidence of prior similar transactions is admissible in cases of sexual assault on a child. People v. Duncan, 33 P.3d 1180 (Colo. App. 2001).   To be admissible, the prior act evidence must relate to a material fact, be logically relevant, and be independent of the intermediate inference of bad character and its probative value must outweigh the danger of unfair prejudice. People v. Wallen, 996 P.2d 182 (Colo. App. 1999).   This section, as reenacted in 1996, contains no language that erodes those requirements or the requirement that the defendant engaged in the prior act. Even when evidence of prior similar transactions is introduced in prosecutions specifically mentioned in this section, an analysis under C.R.E. 404(b) is still necessary. People v. Martinez, 36 P.3d 154 (Colo. App. 2001).   While it is error for the trial court to rule that this section supercedes previous authority regarding the admissibility of prior similar transactions evidence, reversal is not required if the record supports the court's admission of such evidence under the appropriate standard. People v. Martinez, 36 P.3d 154 (Colo. App. 2001).   Prerequisites and factors to be considered by the trial court in determining whether to admit evidence of similar transactions are listed in State v. Janes, 942 P.2d 1331 (Colo. App. 1997).   Evidence of prior similar transactions is admissible in cases of sexual assault regardless of the age of the victim. People v. Fell, 832 P.2d 1015 (Colo. App. 1991); People v. Leonard, 872 P.2d 1325 (Colo. App. 1993).   In order to introduce evidence of other sexual acts committed by the defendant, the prosecution must satisfy, in addition to the requirements of this section, C.R.E. 404(b) and the four-part test established in People v. Spoto. People v. Underwood, 53 P.3d 765 (Colo. App. 2002); People v. Baker, 178 P.3d 1225 (Colo. App. 2007).   Before admitting evidence of other crimes, wrongs, or acts, the other act evidence must satisfy C.R.E. 404(b) and the test in People v. Spoto, 795 P.2d 1314 (Colo. 1990). People v. Villa, 240 P.3d 343 (Colo. App. 2009); People v. Glasser, 293 P.3d 68 (Colo. App. 2011).   Evidence of prior similar transactions is admissible when used to prove identity and motive and to rebut a defense of fabrication by a victim. Evidence introduced under the requirements of this section and C.R.E. 404(b) that fails to satisfy these requirements may be disregarded as harmless error if the error is not one of constitutional dimension and the defendant fails to show a reasonable probability that the inadmissible detail contributed to his or her conviction. People v. Whitlock, 2014 COA 162 , 412 P.3d 667.   Trial courts have no obligation to determine that evidence of other acts offered under C.R.E. 404(b) and this section satisfies the doctrine of chances to also satisfy the second and third prongs of the four-part admissibility test articulated in People v. Spoto. Although the doctrine of chances provides one theory pursuant to which other acts evidence may satisfy these two components of that four-part analysis, trial courts have discretion to assess the relevance of other acts evidence under People v. Spoto apart from the doctrine of chances. People v. Jones, 2013 CO 59, 311 P.3d 274.   Defendant does not necessarily have the right to cross-examine a witness in an evidentiary hearing pursuant to this section. People v. Baker, 178 P.3d 1225 (Colo. App. 2007).   Prosecutor's comment that evidence of prior similar transactions between the sexual assault victim and the defendant, her father, explained the victim's response to two assaults and her failure to report them earlier is not improper considering the testimony of the victim and the limiting instructions given by the trial court regarding the proper use of the similar transaction evidence. People v. Fell, 832 P.2d 1015 (Colo. App. 1991).   Evidence of similar transactions in an incest case is admissible where there is sufficient and substantial similarity between the transactions and offense charged even though there were differences in the type of sexual activity. The evidence is also admissible on the issue of motive, and the trial court was not required to define motive for the jury. People v. Leonard, 872 P.2d 1325 (Colo. App. 1993).   Where the similar transaction to be admitted is complex, requiring several steps to completion, a single prior act may be sufficient to demonstrate a common plan. In such a case, the risks of abuse may be reduced by requiring that the methods used in the commission of the acts being compared must be both similar to each other and dissimilar from the methods generally used in such an offense. People v. Delgado, 890 P.2d 141 (Colo. App. 1994).   A contemporaneous limiting instruction is not required to permit evidence of similar transactions to be considered by the jury where the trial court instructed in the general charge to the jury that they consider the evidence only to show common plan, scheme, or design and where the prosecution was allowed to wait until the close of the case to elect which specific transactions it was prosecuting. People v. Cordova, 854 P.2d 1337 (Colo. App. 1992), aff'd, 880 P.2d 1216 (Colo. 1994).   Failure to give limiting instruction does not always constitute plain error. The court must examine all of the particular facts to determine if plain error was committed. People v. Underwood, 53 P.3d 765 (Colo. App. 2002).   Trial court's failure to issue a limiting instruction in its final instruction to the jury was not plain error. The error was not substantial, did not affect defendant's substantial rights, and the error did not undermine the fairness of the trial to a significant degree. The court issued a limiting instruction at the time of the introduction of the evidence and the court's final instructions reminded the jury about that instruction even though it was not specific to the particular evidence. People v. Everett, 250 P.3d 649 (Colo. App. 2010).   To prove common plan, scheme, or design. Evidence of prior sexual episodes with the victim which goes to prove a common plan, scheme, or design, is admissible under subsection (1). People v. Whitesel, 200 Colo. 362 , 615 P.2d 678 (1980).   Evidence of prior sexual episode with a different victim that goes to prove a common plan and a pattern of using a particular technique to accomplish a particular end is admissible under subsection (1). People v. Shores, 2016 COA 129 , 412 P.3d 894.   Statute mandates that, at time of reception into evidence and again in general charge to the jury, the trial court shall direct the jury as to the limited purpose for which such evidence is admitted. People v. Roberts, 738 P.2d 380 (Colo. App. 1986).   Language of subsection (3) is mandatory and the trial judge may not omit the instructions, even though the defendant objects to them as prejudicial rather than prophylactic. People v. Opson, 632 P.2d 602 (Colo. App. 1980).   Defendant denied fair trial by introduction of prejudicial testimony. Where testimony given in answer to a prosecutor's question revealed an unsavory situation of a highly prejudicial character and was without probative value relevant to the offenses charged, and where no limiting instructions were given, defendant was denied a fair trial. People v. Martin, 43 Colo. App. 44, 602 P.2d 873 (1979).   Trial court did not abuse its discretion in admitting similar transaction evidence. People v. Youngs, 665 P.2d 143 (Colo. App. 1983), aff'd, 707 P.2d 360 (Colo. 1985); People v. Adrian, 744 P.2d 768 (Colo. App. 1987), aff'd, 770 P.2d 1243 (Colo. 1989); People v. Martinez, 36 P.3d 154 (Colo. App. 2001); People v. Jones, 2013 CO 59, 311 P.3d 274.   Trial court did not abuse its discretion when it admitted similar transaction evidence and gave appropriate limiting instructions. People v. McKibben, 862 P.2d 991 (Colo. App. 1993); People v. Delgado, 890 P.2d 141 (Colo. App. 1994).   Trial court did not abuse its discretion when it joined two sexual assault cases against defendant involving two victims, his daughters. The evidence from each case would have been admissible in the other case, the evidence was material to defendant's intent and common plan, and the evidence made it more likely defendant committed the crimes. Defendant's claim that he would have testified in one case, but not the other, making joinder improper did not rise to the level of prejudice. Defendant was still able to show the jury a police interview in which he claimed the same intoxication defense he claimed he would have testified to had the charges involving the other victim been tried separately. People v. Curtis, 2014 COA 100 , 350 P.3d 949.   Trial court did not abuse its discretion in admitting evidence regarding prior similar acts. The testimony was logically relevant to defendant's identity and intent, apart from any inference of propensity; the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice; and the court gave detailed instructions to the jury multiple times that articulated the proper use of the evidence. People v. Larson, 97 P.3d 246 (Colo. App. 2004).   Court properly admitted previous incident evidence based on imprecise offer of proof by the prosecution because the court explicitly acknowledged the inaccuracy in the second statement of the offer and still found the offer sufficient. People v. Raehal, 2017 COA 18 , 401 P.3d 117.   A prior act does not need to be similar in every respect to be admissible. People v. Masters, 33 P.3d 1191 (Colo. App. 2001), aff'd on other grounds, 59 P.3d 979 (Colo. 2002).   Trial court abused its discretion in admitting similar transaction evidence in case of sexual assault on a child. People v. Guilbeaux, 761 P.2d 255 (Colo. App. 1988).   For discussion of evidence sufficient to meet prima facie case requirement, see People v. Mulligan, 714 P.2d 493 (Colo. App. 1986).   The election of a transaction upon which the prosecution relies need not be made before the conclusion of the prosecution's case. People v. Aldrich, 849 P.2d 821 (Colo. App. 1992).   Trial court could not admit evidence of alleged sexual assault under this section then in effect before prosecution presented prima facie case to jury. Yet child's out-of-court statements could not establish a prima facie case warranting submission to the jury because, under § 13-25-129(1)(b) , the statements were not admissible without the corroborative evidence. People v. Nara, 964 P.2d 578 (Colo. App. 1998) (decided under law in effect prior to the 1996 repeal and reenactment).   As a result of the interplay of § 13-25-129 and this section then in effect, alleged victim's out-of-court statements could not be corroborated by similar acts, and those statements could not provide the prima facie case necessary for admission of evidence of the similar act. The trial court therefore could not properly admit evidence of either. People v. Nara, 964 P.2d 578 (Colo. App. 1998)(decided under law in effect prior to the 1996 repeal and reenactment).   Because the prosecution did not first establish a prima facie case of the corpus delicti element pursuant to subsection (4)(c), evidence of the juvenile's prior sexual assault was improperly admitted. People ex rel. T.A.O., 36 P.3d 180 (Colo. App. 2001).   Applied in People v. McKnight, 39 Colo. App. 280, 567 P.2d 811 (1977); People v. Crespin, 631 P.2d 1144 (Colo. App. 1981); People v. Martinez, 652 P.2d 174 (Colo. App. 1981); People v. Holder, 687 P.2d 462 (Colo. App. 1984).