December 17, 2017

Colorado Supreme Court: Interactions Between Police and Defendant Non-Custodial for Miranda Purposes

The Colorado Supreme Court issued its opinion in People v. Garcia on Monday, December 11, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court held that the interactions between law enforcement officers and defendant inside her home and in her front yard did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed her freedom of action had been curtailed to a degree associated with formal arrest. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Parties Cannot Waive Statutory Time Period for Record Sealing

The Colorado Court of Appeals issued its opinion in Robertson v. People on Thursday, November 16, 2017.

Plea Agreement—Menacing—Consumption of Marijuana—Possession of Drug Paraphernalia—Consumption of Alcohol—Deferred Judgment—Petition to Seal—Statutory Waiting Period.

In 2014, Robertson was charged in three separate cases with (1) misdemeanor menacing; (2) consumption of marijuana and possession of drug paraphernalia; and (3) consumption and possession of alcohol by a person under 21. Robertson entered into a global plea agreement whereby he pleaded guilty to the menacing charge and received a deferred judgment lasting one year, the drug and alcohol cases were dismissed, and Robertson was permitted to seal the records of all three cases. After Robertson completed the deferred judgment, his guilty plea was withdrawn and the case was dismissed. He petitioned the court to seal the records in all three cases, which the court granted.

On appeal, the prosecution contended that the district court erred by granting Robertson’s petitions to seal the records in the drug and alcohol cases because C.R.S. § 24-72-702(1)(a)(III)(A) prohibits such sealing until at least 10 years have passed. Where a statute prohibits a court from sealing criminal records until 10 years have passed since the disposition of the criminal proceedings, as in this case, the parties may not waive this requirement and authorize the court to seal the records earlier. Therefore, the district court lacked authority to seal the criminal records in the drug and alcohol cases. The records in the menacing case, however, were eligible for sealing because that case was completely dismissed after Robertson completed the deferred judgment. However, the existing record in the menacing case was not sufficient to support the order.

The orders in the drug and alcohol cases were vacated. The order in the menacing case was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Omitting Jury Instruction on Right Not to Testify, but Reversal Not Required

The Colorado Court of Appeals issued its opinion in People v. Deleon on Thursday, November 16, 2017.

Sexual Assault—Child—Jury Instruction—Right Not to Testify—Hearsay.

Defendant was found guilty of two counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by rejecting his tendered jury instruction on his right not to testify and by failing to instruct the jurors immediately before closing arguments of his constitutional right not to testify. The trial court did not err in choosing to give the jury the pattern jury instruction on defendant’s right not to testify because defendant’s proposed instruction went beyond the language of the pattern instruction. However, the trial court had an obligation to instruct jurors about defendant’s right not to testify before the attorneys made their closing arguments. Although the court violated Crim. P. 30 by not reading the instruction to the jury before closing argument, the court properly instructed jurors on defendant’s right not to testify during voir dire and reminded the sworn jurors of its earlier remarks. Reversal isn’t warranted because the error doesn’t cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the district court erred by admitting into evidence the victim’s out-of-court statement to a Sexual Assault Nurse Examiner (SANE nurse) that defendant had been “kicked out of the house.” Defendant argued that by saying he got kicked out of the house, the victim implied that her mother had kicked him out because of the victim’s allegations, which implied that the victim’s mother believed those allegations. Even assuming that the statement was inadmissible hearsay, any error in allowing it was harmless because any inferences defendant drew from the statement were speculative, and the victim’s mother testified that she did not believe the victim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Colorado RTD Manager Found Guilty of Bribery

Tenth Circuit Court of Appeals issued its opinion in United States v. Hardin on Wednesday, October 25, 2017.

Defendant Hardin was the senior manager for the Regional Transportation District (RTD) in Colorado. Part of Hardin’s job responsibilities included setting goals on projects for small business participation and ensuring compliance of small business participation on various projects. Ward was the owner of a busing company as well as a manufacturing representative for Build Your Dream, a manufacturer of automobiles and rechargeable batteries. Ward represents Build Your Dream to sell their merchandise in Denver.

Ward’s busing company contracted with RTD as a service provider for Access-a-Ride, a program that provides local bus transportation in Denver for people with disabilities. From that point on, Ward paid Defendant monthly bribes in exchange for Defendant’s help to secure a contract with RTD, as RTD was preparing to solicit bids for the purchase of shuttle buses. Ward would meet with Defendant every month and pay Defendant to help Ward win the contract. Further, Defendant gave Ward information on potential competitors to allow Ward to tailor his proposal to RTD.

Unbeknownst to Defendant, Ward had previously pleaded guilty to tax evasion and, to receive a reduced sentence, relayed Defendant’s original bribe request to the Federal Bureau of Investigation. Ward then became the FBI’s confidential informant to investigate Defendant for bribery. The meetings and conversations between Ward and Defendant were all recorded.

Defendant was charged with four counts of committing bribery involving a program that receives federal funds. The jury found Defendant guilty of three counts relating to the proposed shuttle bus contract. Defendant appealed, arguing that, by dismissing one count, it could not be shown that he had solicited the requisite $5,000 threshold that is set by the federal-program bribery statute. The Tenth Circuit found that the $5,000 pertains to the subject matter of the bribe and Ward paid for Defendant’s help with respect to the lucrative shuttle bus purchase contract. The Tenth Circuit was persuaded that the statute was sufficiently definite to give Defendant fair notice of the criminality of his conduct.

The Tenth Circuit Court of Appeals AFFIRMED Defendant’s conviction and sentence.

Tenth Circuit: Plaintiff’s Request for Immediate Release from Federal Custody Denied Under ACCA’s Enumerated Clause

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Thursday, September 21, 2017.

This case arose from Snyder’s request for immediate release from federal custody on the basis that he had already served more than the maximum sentence allowed by law. Snyder argues that the Supreme Court’s recent decision in Johnson v. United States invalidates his sentence enhancement under the Armed Career Criminal Act (ACCA). The district court denied Snyder’s motion, and the Tenth Circuit Court of Appeals affirmed the denial, concluding that Snyder was not sentenced based on the ACCA’s residual clause that was invalidated in Johnson.

In 2004, Snyder pled guilty to being a felon in possession of a firearm. A presentence report was prepared and concluded that Snyder was subject to an enhanced sentence as an armed career criminal because he had sustained two convictions for burglary of two residences, and had a conviction of a controlled substance offense. Snyder’s argument that his burglary convictions failed to constitute predicate offenses under the ACCA were rejected by the district court.

In 2015, the Supreme Court decided Johnson. Snyder subsequently filed a motion to vacate his sentence for immediate release, asserting that, following the Court’s decision in Johnson, his burglary convictions no longer qualify as predicate offenses under the ACCA, so he is not an armed career criminal, and his enhanced sentence exceeds the maximum authorized by law.

The Circuit first determined whether the district court erred in concluding that Snyder’s motion was not timely.  By the plain language of the statute in question, the statute allows a motion to be filed within one year of the date on which the rights asserted was initially recognized by the Supreme Court. The Circuit concluded that to be timely, a motion need only to invoke the newly recognized right, regardless of whether the facts of record ultimately support the claim, and found that Snyder’s motion did just that.

The court then discussed whether Snyder had overcome the procedural-default rule, which is a general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner can show cause and prejudice.

Cause is shown if a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal. The Supreme Court has stated that if one of its decisions explicitly overrides prior precedent, then, prior to that decision, the new constitutional principle was not reasonably available to counsel, and defendant has cause for failing to raise the issue. The Johnson claim was not reasonably available to Snyder at the time of his direct appeal, and the Circuit found this sufficient to establish cause.

To establish actual prejudice, the Circuit held that Snyder must show that the error of which he complains is an error of constitutional dimensions and worked to his actual and substantial disadvantage. The Circuit found that Snyder has shown actual prejudice through his argument that the ACCA sentence enhancement is invalid after Johnson. The court concluded this by acknowledging that if Snyder is correct, he should have been sentenced to only ten years maximum, not eighteen as he had been sentenced. The sentence of eighteen years would then be unauthorized under law, creating an actual and substantial disadvantage of constitutional dimensions.

The Circuit next discusses the merits of Snyder’s claim. Snyder alleged that the sentence was imposed under an invalid legal theory and that he was, therefore, sentenced in violation of the Constitution. In order to make a determination, the relevant background of the legal environment at the time of sentencing must be evaluated. The Circuit held that the actual facts of record in this matter offered no basis whatsoever for the notion that the sentence Snyder received was based on the ACCA’s residual clause, rather than its enumerated offenses clause. The Circuit found no mention of the residual clause in the presentence report or any other pleading or transcript. Further, given the relevant background legal environment that existed at the time of Snyder’s sentencing, there would have been no need for reliance on the residual clause. The Circuit concluded that Snyder’s claim failed because the court’s ACCA’s determination at the time of sentencing rested on the enumerated crimes clause rather than the residual clause.

The decision of the district court denying Snyder’s motion is AFFIRMED by the Tenth Circuit Court of Appeals.

Tenth Circuit: Social Worker Not Entitled to Qualified Immunity after Violating Defendant’s Constitutional Rights

The Tenth Circuit Court of Appeals issued is opinion in T.D. v. Patton on Monday, August 28, 2017.

Ms. Patton is a social worker for the Denver Department of Human Services (DDHS) and was responsible for removing T.D., a minor, from his mother’s home, and recommending T.D. remain in the temporary custody of his father, Duerson. T.D. was removed from Duerson’s home after DDHS made a determination that T.D. had suffered physical and sexual abuse at the hands of his father. This case concerns Ms. Patton’s motion for summary judgment on the grounds that she is entitled to qualified immunity.

The Tenth Circuit Court of Appeals concluded that Ms. Patton violated T.D.’s clearly established substantive due process constitutional right to be free of a state official’s creation of danger from a private actor under a danger-creation theory. The court found that Ms. Patton violated T.D.’s substantive due process right by knowingly placing T.D. in a position of danger by recommending that T.D. be placed in Duerson’s custody despite admitted concerns about T.D.’s safety, her knowledge of Duerson’s criminal history and conviction for attempted sexual assault against a minor, and failure to investigate whether Duerson was abusing T.D. despite her awareness of evidence of potential abuse. The court found that Ms. Patton acted recklessly and in conscious disregard of a known and substantial risk that T.D. would suffer serious, immediate, and proximate harm in his father’s home.

Under 42 U.S.C. § 1983, a person acting under color of state law who subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution shall be liable to the injured party. However, a defendant in an action may raise a defense of qualified immunity, which shields public officials from damages unless their conduct was unreasonable in light of law. Once a defendant asserts qualified immunity, the plaintiff has the burden to show that the defendant’s actions violated a federal constitutional or statutory right and that the right was clearly established at the time of the defendant’s unlawful conduct.

The court first evaluated whether the facts satisfied T.D.’s claim of danger-creation. The court considered whether Ms. Patton created or increased the danger posed to T.D. The court concluded that Ms. Patton’s actions amounted to a failure to investigate evidence that Duerson was abusing T.D., satisfying the first element. The second element is whether T.D. was a member of a limited and specifically definable group. The court held that because the state removed T.D. from his natural parent and took him into state custody, T.D. fell within a limited and specifically definable group of children.

Third, Ms. Patton’s conduct put T.D. at substantial risk of serious, immediate, and proximate harm. This is evidenced by Ms. Patton withholding relevant information and recommending T.D. be placed with his father, by failing to investigate evidence of potential abuse, and by continuing to recommend T.D. remain with his father.

The court discussed the fourth and fifth elements simultaneously. Ms. Patton acted recklessly and in conscious disregard of a risk (element 4) that was obvious or known (element 5). Ms. Patton knew of Duerson’s criminal history, but deleted those concerns for fear of being fired. She further withheld concerns of T.D.’s safety and concerns, stemming from her professional judgment, that T.D. should be removed from the home. Her intentional exclusion of her knowledge and concerns from her hearing report showed she acted recklessly and in conscious disregard of an obvious or known risk that Duerson posed to T.D.

The last element is satisfied by Ms. Patton’s conscience-shocking conduct. Ms. Patton’s conduct was held to significantly exceed ordinary negligence or permitting unreasonable risk and rose to a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.

In sum, Ms. Patton’s conduct violated T.D.’s substantive due process right by creating or increasing T.D.’s vulnerability to the danger of private violence by Duerson.

The court found that the law was clearly established at the time of Ms. Patton’s misconduct. The court held that a reasonable official in Ms. Patton’s shoes would have understood that she was violating T.D.’s constitutional right by creating or increasing T.D.’s vulnerability to the danger posed by Duerson.

The Tenth Circuit Court of Appeals AFFIRMED the district court’s DENIAL of summary judgment.

Colorado Court of Appeals: Heat of Passion Jury Instruction Impermissibly Lowered Prosecution’s Burden of Proof

The Colorado Court of Appeals issued its opinion in People v. Tardif on Thursday, November 2, 2017.

Jury InstructionsBurden of ProofHeat of Passion ProvocationAttempted Second Degree MurderFirst Degree AssaultMitigating FactorEvidenceDue ProcessSelf-DefenseDeadly Physical ForceSlow Motion VideoUnfair Prejudice—Prosecutorial Misconduct.

Tardif’s friend Soto was at a skate park and got into an argument with the victim. Tardif and Soto were members of the same gang, and the victim was wearing the colors of a rival gang. Soto called Tardif, and when Tardif arrived, Tardif and Soto walked up to the victim and Tardif shot him once in the abdomen. The victim fled and survived. Other people in the skate park recorded video of part of the initial argument between Soto and the victim as well as the shooting. A jury found Tardif guilty of attempted second degree murder, first degree assault, conspiracy to commit first degree assault, and three crime of violence counts.

On appeal, Tardif argued that the trial court erred by not instructing the jury that the prosecution had the burden to prove the absence of heat of passion provocation beyond a reasonable doubt. Heat of passion provocation is a mitigating factor for attempted second degree murder and first degree assault. Here, the heat of passion provocation instructions failed to inform the jury that the prosecution had to prove the absence of heat of passion provocation beyond a reasonable doubt. Therefore, the instructions, considered together, failed to properly instruct the jury on the prosecution’s burden of proof. Because Tardif presented sufficient evidence for a heat of passion provocation instruction, the error lowered the prosecution’s burden of proof and violated Tardif’s constitutional right to due process. Tardif also argued that the trial court’s self-defense instructions included several reversible errors. Self-defense is not an affirmative defense to conspiracy to commit first degree assault, and therefore, the court did not err in failing to instruct the jury that it was. But the trial court erred by instructing the jury on when deadly physical force may be used in self-defense because deadly physical force requires death, and here the victim did not die.

Tardif additionally argued that the trial court erred by admitting slow motion video recordings of the shooting. Although this evidence was relevant to explain the events around the shooting and to determine whether defendant acted with aggression or in self-defense, the probative value of the slow motion recordings was very low. This evidence was also cumulative of the real-time recording that was also admitted. Further, because Tardif’s state of mind at the time of the shooting was a disputed issue, the slow motion recordings’ low probative value was substantially outweighed by the danger of unfair prejudice. The slow motion recordings may have portrayed Tardif’s actions as more premeditated than they actually were. The trial court abused its discretion by failing to weigh the slow motion recordings’ probative value against their danger of unfair prejudice.

Tardif further argued that two statements by the prosecutor during closing argument constituted misconduct and required reversal. The court of appeals did not doubt the reliability of Tardif’s conspiracy conviction and concluded that the prosecutor’s allegedly improper statements did not constitute plain error.

The conspiracy to commit first degree assault conviction was affirmed. The remaining convictions were reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Comment on Witness’s Credibility Did Not Constitute Plain Error

The Colorado Court of Appeals issued its opinion in People in Interest of T.C.C. on Thursday, November 2, 2017.

JuvenileDelinquentRobberyAssaultProsecutorial MisconductSentenceFeesWaiverIndigence.

After T.C.C. removed a package from the front step of Ipson’s neighbor’s house, Ipson confronted T.C.C. and told him to return the package. T.C.C. then slapped, punched, and swore at Ipson. A judgment was entered adjudicating T.C.C. delinquent of an act that would constitute robbery and third degree assault if committed by an adult. At sentencing, T.C.C. asked the court to waive all mandatory fees based on his indigence. Instead of ruling on the motion, the court deferred this decision to probation.

On appeal, T.C.C. contended that the prosecutor improperly vouched for Ipson’s credibility and truthfulness when he argued, “Certainly Mr. Ipson has no reason to make up that he got struck numerous times from [T.C.C.]” The prosecutor’s argument was a reasonable inference from the record and not improper.

T.C.C. also contended that the trial court erred in delegating the waiver decision to probation and in permitting a waiver of fees based on “good behavior.” The plain language of the statutes permits only the court to waive fees and surcharges based solely on a finding of indigence, not based on good behavior. Therefore, the court erred by not ruling on T.C.C.’s motion.

The judgment and sentence were affirmed, and the case was remanded for the trial court to rule on T.C.C.’s motion for waiver of fees and costs based on indigence.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Mandatory Minimum Sentence Provision in Child Pornography Statute Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in United States v. Haymond on Thursday, August 31, 2017.

This appeal comes from the district court’s decision to revoke Andre Haymond’s supervised release based, in part, on a finding that Haymond knowingly possessed thirteen images of child pornography, which were found on his phone by his probation officer. On appeal, Haymond argued that the evidence was insufficient to support a finding by a preponderance of the evidence that he knowingly possessed child pornography, and he argued that the sentence imposed upon him is unconstitutional because it violates his right to due process. The Tenth Circuit Court of Appeals affirmed the district court’s revocation of Haymond’s supervised release, but holds that the sentencing was unconstitutional.

In regards to Haymond’s sufficiency of the evidence argument, the Tenth Circuit found that the district court abused its discretion by relying on a clearly erroneous finding of fact that Haymond knowingly took some act related to the images that resulted in the images being on his phone in a manner consistent with knowing possession, as testimony supports only a finding that the images were accessible on Haymond’s phone, not that Haymond necessarily saved, downloaded, or otherwise placed them there. Nonetheless, the court found that the remaining evidence in the record was sufficient to support a finding that Haymond knowingly possessed the child pornography. The information the court relied on was (1) Haymond had nearly exclusive use and possession of his password-protected phone; (2) at some point, thirteen images of child pornography were accessible somewhere on Haymond’s phone; and (3) the sexual acts depicted in the images are consistent with the images forming the basis of Haymond’s original conviction. The court found the evidence supported a finding that it is more likely than not that Haymond downloaded the images and knowingly possessed child pornography, in violation of his release.

The Circuit then moved on to the constitutional question. Haymond’s original conviction, a class C felony, included a supervised release statute that requires a mandatory term of supervised release of five years to life under 18 U.S.C. § 3583(k), which may be revoked if a court later finds that the defendant has violated the conditions of that release. If not for the mandatory sentence required by § 3583(k), the sentence Haymond would have received following revocation of his release would have been significantly lower — two years at the most. The Circuit concluded that § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range; and (2) it imposes heightened punishment on sex offenders, expressly based not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished. The Circuit found that § 3583(k) violates the Sixth Amendment because it punishes the defendant with reincarceration for conduct of which he or she has not been found guilty by a jury beyond a reasonable doubt, and it raises the possibility that a defendant would be charged and punished twice for the same conduct, in violation of the Fifth Amendment.

The Circuit noted that the court must refrain from invalidating more of the statute than is necessary. There are two sentences under § 3583(k) that the court found to violate the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction. The court concluded that without the unconstitutional provision, all violations of the conditions of supervised release would be governed by a different statute, which the court finds to be more appropriate. The sentences at issue under § 3583(k) are found to be unconstitutional and, therefore, unenforceable.

The Tenth Circuit Court of Appeals AFFIRMED the revocation of Haymond’s supervised release, VACATED his sentence following that revocation, and REMANDED for resentencing without consideration of § 3583(k)’s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

Colorado Supreme Court: Defendant Not In Custody at Time of Interview so Suppression Order Reversed

The Colorado Supreme Court issued its opinion in People v. Sampson on Monday, October 30, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court concluded that a conversation between defendant and a law enforcement officer that took place in a hospital did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Assuming without deciding that giving Miranda warnings can be considered in determining whether a suspect is in custody, the court concluded that defendant was not in custody during any part of his conversation with the law enforcement officer. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Surety Erroneously Required to Return Part of Bond

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, October 19, 2017.

Bond—Refund—C.R.S. §16-4-110(1)(d).

Defendant was charged with and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted bond through Perna by paying a $25,000 premium. Thereafter, defendant cooperated with all court orders and appeared at all hearings. Fourteen months later, just before defendant’s trial was to begin, Perna moved to surrender defendant back into the custody of the court. The court granted the motion. Defendant spent several days in jail while his family secured a second bond and paid another $25,000 premium to a different surety to secure defendant’s release. Defendant was ultimately acquitted. Defendant moved for return of the premium he had paid to Perna, which the court partially granted, ordering Perna to return $11,031.25 to defendant.

On appeal, Perna contended that the district court erred by ordering that he refund a portion of the bond premium to defendant. Under C.R.S. § 16-4-110(1)(d), a court may order return of all or part of the premium defendant paid to prevent unjust enrichment only if the surrender occurred before the defendant’s initial appearance. Here, Perna surrendered defendant to the court 14 months after the court process began, well after defendant’s initial appearance. Accordingly, the court was without the authority to order Perna to refund all or part of defendant’s premium.

The order was vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony that Child Did Not Seem to be Coached Proper Under Circumstances

The Colorado Court of Appeals issued its opinion in People v. Heredia-Cobos on Thursday, October 19, 2017.

Sexual Assault—Child—Forensic Interviewer—Expert Testimony—Credibility—Defendant’s Theory of the Case—Evidence—Prior Acts—CRE 404(b).

Defendant was convicted of sexual assault on his 9-year-old great niece, Y.P.

On appeal, defendant contended that the district court abused its discretion by allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn’t show any signs of having been coached. Although such testimony ordinarily is improper (because it’s tantamount to vouching for the child’s credibility), in this case the testimony was admissible to rebut defendant’s defense theory that Y.P. had made up the allegations. Because defendant opened the door to this testimony, it was not error to allow it.

Defendant also contended that the district court erred by allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b). He argued that the prior acts were too dissimilar to his alleged assault of Y.P. to be admissible. Evidence that defendant physically assaulted two female relatives who lived with him was probative of defendant’s intent to sexually assault another female at his home and was relevant to refute his claim that Y.P. fabricated the allegation. Further, the other act evidence was especially relevant because Y.P.’s testimony was the only direct evidence of defendant’s guilt. Thus the potential for unfair prejudice did not outweigh the evidence’s probative value, and the district court did not err in admitting evidence of these acts. Additionally, evidence that defendant masturbated in front his 19-year old niece several times (although he did not physically assault her) was also relevant and no more potentially prejudicial than the evidence of the acts involving the other two relatives. But even assuming that allowing this evidence was error, any error was harmless.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.