August 23, 2019

Colorado Court of Appeals: Suddenly Hitting Officer’s Motorcycle Does Not Constitute “Threat”

The Colorado Court of Appeals issued its opinion in People v. Denhartog on Thursday, February 21, 2019.

Criminal Law—First Degree Assault of a Peace Officer—Threaten—Prior Acts Evidence—Merger—Lesser Included Offense—Prosecutorial Misconduct.

A motorcycle patrol officer observed defendant speeding and pulled him over. The officer parked about 12 feet behind defendant’s vehicle. As the officer prepared to dismount from his bike, defendant suddenly reversed his vehicle and drove into the motorcycle, pushing the bike backward and causing the officer to fall and sustain minor injuries. Defendant left the scene and broke into an unoccupied apartment, where he damaged the tenant’s belongings and set fire to contraband he was carrying. Defendant was charged with 15 felony, misdemeanor, and traffic offenses. As relevant here, the jury convicted him of first degree assault of a peace officer, two counts of second degree assault, vehicular eluding, first degree criminal trespass, and second degree burglary.

On appeal, defendant argued that the evidence was insufficient to support his conviction for first degree assault because the prosecution failed to prove he used the vehicle to threaten the officer. “Threaten” means to express a purpose or intent to cause harm or injury. To obtain a conviction for first degree assault of a peace officer, the prosecution had to prove that, by use of a deadly weapon, defendant expressed a purpose or intent to cause injury or harm to the officer or the officer’s property. Here, the act of suddenly hitting the officer’s motorcycle, without more, did not constitute a threat. Accordingly, the evidence was insufficient to sustain the first degree assault conviction.

Next, defendant contended that the trial court erred in admitting evidence under CRE 404(b) of his prior assault of a peace officer. The prior and current incidents were similar enough that the prior act evidence was admissible for the nonpropensity purpose of rebutting defendant’s defense that his conduct was accidental rather than intentional. Thus, the evidence was relevant to establish defendant’s intent to commit assault. The district court did not abuse its discretion.
Defendant also contended that his assault and eluding convictions should be reversed due to prosecutorial misconduct during closing argument. However, the prosecutor did not err in commenting on the strength of defense counsel’s arguments and using the facts in evidence to support his argument. Although the prosecutor improperly appealed to the emotions of the jury and misstated one piece of evidence during his closing argument, the two instances of misconduct were not egregious and did not warrant reversal.

Defendant further contended, the People conceded, and the court of appeals agreed that his two convictions for second degree assault must merge for multiplicity.

Lastly, defendant contended that first degree criminal trespass is a lesser included offense of second degree burglary and therefore these convictions must merge. However, the supreme court has expressly held that first degree criminal trespass is not a lesser included offense of second degree burglary.

The case was remanded to (1) vacate the conviction and sentence for first degree assault and for entry of a judgment of acquittal on that charge; (2) merge the convictions for second degree assault and vacate the conviction entered under C.R.S. § 18-3-203(1)(c); and (3) resentence defendant. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor Committed Misconduct by Repeatedly Referencing Other Bad Acts Not Properly Admitted at Trial

The Colorado Court of Appeals issued its opinion in People v. Fortson on Thursday, April 5, 2018.

Sexual Assault on a Child—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

A jury found Fortson guilty of one count of sexual assault on a child and one count of sexual assault on a child as a part of a pattern of abuse.

On appeal, Fortson contended that the prosecutor improperly referenced and elicited evidence of other acts of sexual assault and sexual misconduct for propensity purposes and that she did so without first seeking to admit the evidence, presenting an offer of proof, or obtaining a ruling. The prosecutor committed misconduct when she repeatedly introduced, referenced, and argued to the jury that defendant previously committed uncharged sexual assaults against four other girls and the victim. The prosecutor did not seek the admission of the alleged uncharged sexual assaults for a proper purpose and improperly used this evidence for propensity purposes. The prosecutor’s pervasive misconduct undermined the fundamental fairness of the trial and cast serious doubt on the reliability of the judgment.

The judgments of conviction were reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Witness’s Vague and Fleeting Reference to Prior Criminal Activity Did Not Undermine Fairness of Trial

The Colorado Court of Appeals issued its opinion in People v. Salas on Thursday, May 18, 2017.

Sexual Assault on a Child—Due Process—Mistrial—Prior Criminality—Videotaped Interview—Inconsistent Statements—Sexually Violent Predator—Findings of Fact.

A jury found Salas guilty of sexual assault on a 9-year-old child by one in a position of trust and sexual assault on a child, pattern of abuse. The trial court’s order found him to be a sexually violent predator (SVP).

On appeal, Salas contended that the trial court abused its discretion and violated his rights to due process, a fair trial, and an impartial jury by denying his motion for a mistrial after victim’s grandmother testified by giving a nonresponsive answer to a question which, Salas contended, impermissibly referred to prior criminality. Because grandmother’s remark was fleeting, minimally prejudicial, and immediately followed by a curative instruction, the trial court did not abuse its discretion when it denied Salas’s motion for a mistrial.

Salas next contended that the district court abused its discretion when it denied his request to play a videotaped interview of grandmother. Here, defense counsel sufficiently confronted grandmother with her inconsistent statements and she either explained or conceded them. Thus admission of the videotape would have been cumulative, and the trial court did not abuse its discretion.

Salas also argued that the trial court’s determination that he qualified as an SVP failed to satisfy statutory and due process requirements because the court never made specific findings of fact in support of its determination as required by C.R.S. § 18-3-414.5(2). While the record evidence might support a conclusion that Salas either promoted or established a relationship with the victim for purposes of sexual victimization, the court did not make specific findings on this matter, and other evidence might lead to the opposite conclusion. This error was substantial and cast serious doubt on the reliability of the SVP designation.

The judgment and sentence were affirmed. The SVP designation was vacated and the case was remanded for the trial court to make specific findings of fact regarding Salas’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Joining Trials Where CRE 404(b) Would Have Allowed Admission of Other Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Raehal on Thursday, February 23, 2017.

Bradford Steven Raehal was living in the basement of S.F.’s family home when he was arrested for failing to register as a sex offender. Shortly after his arrest, S.F. reported that Raehal had sexually assaulted him on multiple occasions and had taken pictures of the assaults with a grey or silver digital camera. A search executed pursuant to a warrant found the digital camera, which contained previously deleted images of Raehal assaulting S.F.

J.H., another minor who lived at S.F.’s house, first denied that Raehal had assaulted him, but later reported three separate incidents of abuse. Although the incidents differed from the incidents with S.F., both boys reported that Raehal gave them video games and rubbed lotion on their backs before the assaults, which occurred in the same location for both boys.

At first, the trials for the acts on S.F. and J.H. were separate, but the district court joined the trials over defense counsel’s objection. A jury convicted Raehal of two counts of sexual assault on a child by one in a position of trust (one for acts against S.F. and one for acts against J.H.), two counts of sexual assault on a child as part of a pattern of abuse (one for acts against S.F. and one for acts against J.H.), and two counts of sexual exploitation of a child for the possession and production of sexually exploitative material relating to the pictures taken of S.F. In a separate proceeding, he was adjudicated a habitual sex offender against children. The trial court designated him a sexually violent predator and sentenced him to 112.5 years to life.

On appeal, Raehal first contended that the trials were improperly joined. Although he admitted that S.F.’s testimony would have been admissible under CRE 404(b) in J.H.’s trial, he argued the photos depicting the assaults of S.F. would not have been admissible. The court of appeals found no abuse of discretion. The court disagreed that the photographs should have been separately analyzed, and found the Spoto test inapplicable because the photos were admitted to corroborate S.F.’s testimony, not to prove a common scheme or plan. The court of appeals similarly found no error in the court’s failure to give a limiting instruction as to the photos, finding that any error could not have cast serious doubt on the reliability of the convictions.

Raehal next contended that the contents of the digital camera should have been suppressed because the examination of the camera occurred outside the 14-day window in the search warrant. The court of appeals again disagreed, finding that the camera was seized within the time limit and was not altered between the seizure and examination, so there was no error.

Raehal also contended that evidence of his prior assault of two other boys should have been rejected under CRE 404(b), but the court of appeals again disagreed, finding that although the prosecutor’s statements were somewhat misleading, there was no doubt that Raehal was convicted of only one charged offense.

Finally, Raehal argued, and the prosecution conceded, that the trial court erred in finding him a sexually violent predator without making specific findings. The court of appeals remanded for further findings on the sexually violent predator designation.

The court of appeals affirmed in part, reversed in part, and remanded for further proceedings.

Colorado Court of Appeals: No Time Limit Exists for Prosecuting Sexual Assaults Where DNA Proves Defendant’s Identity

The Colorado Court of Appeals issued its opinion in People v. Shores on Thursday, September 8, 2016.

Sexual Assault—Statute of Limitations—CRE 404(b) Evidence.

In 1994, an elderly woman was found badly beaten and sexually assaulted. No suspect was initially identified. The victim died in 2000 from cancer. In 2010, the DNA evidence from the victim’s case was matched to Shores’s DNA, but the district attorney’s office chose not to file charges against Shores at that time. Several years later, the Denver Police Department learned that Shores had been tied, through DNA, to a 2013 sexual assault of a woman, D.B., in Texas. This information led to the 2014 charges against Shores for first degree sexual assault and a crime of violence enhancer. Shores was convicted as charged.

On appeal, Shores argued that the trial court erred in denying his motion to dismiss for failure to file charges within the 10-year statute of limitations in effect in September 1994. The change in the statute, however, provides that there is no time limit for prosecuting certain sexual assaults committed after July 1, 1991, if (1) the defendant’s identity is determined in whole or in part by DNA and (2) the offense is reported to a law enforcement agency within 10 years after its commission. Shores conceded that his identity was determined by DNA but argued that the second prong was not met because the victim herself did not report the crime to law enforcement. The statute does not require that the victim be the person who reported the offense, only that the offense was reported. Here, the police had known about the physical assault on the victim from their response to the initial call, and they received further information from the hospital about her condition, including the results of the sexual assault examination kit.  Accordingly, there was no statutory time limit in which to file charges against Shores, and the trial court correctly denied his motion to dismiss.

Shores next argued that the trial court abused its discretion in admitting CRE 404(b) evidence of the 2013 sexual assault in Texas. The evidence relating to D.B. was probative of the ultimate fact of whether Shores committed the offense charged and was logically relevant independent of bad character evidence because it had a tendency to make it more probable that the victim did not consent than it would be without the evidence. The court acted within its discretion in determining that the danger of unfair prejudice did not outweigh the probative value of this evidence.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony Relating to Victim’s Veracity Erroneously Admitted

The Colorado Court of Appeals issued its opinion in People v. Relaford on Thursday, June 30, 2016.

Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed, and this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: At-Risk Status of Victim Need Not Be Known to Defendant to Apply

The Colorado Court of Appeals issued its opinion in People v. Nardine on Thursday, June 2, 2016.

C.R.S. § 18-6.5-103(7)(c)—Mens Rea Element—At-Risk Juvenile—Prosecutorial Misconduct—Character Evidence—Other Acts Evidence.

Nardine was convicted of unlawful sexual conduct on an at-risk juvenile.

On appeal, Nardine contended that C.R.S. § 18-6.5-103(7)(c) has an implied mens rea element that requires the prosecution to prove that a defendant knew of the victim’s at-risk status. He thus argued that the evidence was insufficient to convict him and the trial court erroneously instructed the jury by submitting a special interrogatory that did not include a mens rea for the at-risk element. The court of appeals disagreed with his interpretation of the statute. A defendant need not know that the victim is “at-risk” in order to be convicted of unlawful sexual contact on an at-risk juvenile. Consequently, Nardine’s challenges to the sufficiency of the evidence and the special interrogatory were rejected.

Nardine also contended that numerous instances of prosecutorial misconduct during closing argument, in their totality, rose to the level of plain error and required reversal of his conviction. Under the circumstances of this case, the prosecutor improperly (1) characterized the defense theory as a disingenuous scheme commonly perpetuated by defense attorneys to take advantage of victims with mental illness to obtain wrongful acquittals; (2) appealed to the jurors’ religious beliefs and “lambasted” the defense theory by characterizing it as an attack on these beliefs; (3) argued that defense counsel did not believe his own client; (4) argued facts outside the record; and (5) vouched for witness credibility. Because the misconduct so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the verdict, reversal was required.

Additionally, Nardine contended that the trial court should have excluded CRE 404(a) character evidence that he was “a sexual predator” and “not a very good person,” and CRE 404(b) evidence of specific other acts of sexual misconduct. The witness statements about Nardine being “not a good person” and a “sexual predator” were inadmissible under CRE 404(a). Evidence of other acts of sexual misconduct against others, however, was permissible to show that Nardine had a similar intent, motive, common plan, scheme, and method of operation.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: CRE 404(b) Modus Operandi Evidence May Only Be Admitted if Identity in Issue

The Colorado Court of Appeals issued its opinion in People v. Williams on Thursday, April 7, 2016.

In May 2012, the police gave a confidential informant $20 with which to buy cocaine. She went to defendant’s apartment and returned without the money and with a rock of cocaine. She wore a wire during the transaction, but neither party said anything that was definitively related to a drug deal. A week later, police obtained a warrant to search defendant’s apartment and failed to find the $20, cocaine, or any paraphernalia commonly associated with drug dealing. Nevertheless, defendant was charged with distribution of cocaine.

Before trial, the prosecution submitted a CRE 404(b) motion requesting to admit evidence of a drug deal in which defendant had been involved in February 2012. The prosecution asserted the evidence was necessary to establish “common plan, scheme, design, modus operandi, motive, and guilty knowledge,” and to rebut any assertion of mistake or accident. The judge who presided over the pretrial motion, who was not the same judge who presided over the trial, granted the prosecution’s motion, but limited the evidence’s introduction to modus operandi or common plan, scheme, or design.

After hearing evidence regarding the February and May 2012 drug deals, the jury convicted Williams on the May deal. He appealed, contending the court erred in allowing the prejudicial CRE 404(b) evidence. On appeal, the court of appeals found that modus operandi evidence should only be admitted when identity is at issue, except in domestic violence and sexual assault cases governed by statute. Because in this case defendant’s identity was not at issue, the trial court erred in admitting the prejudicial evidence as modus operandi evidence. The court further noted that even if modus operandi evidence were allowed in this type of case, it would not have admitted the evidence here because the February drug deal lacked striking similarities with the May drug deal.

Defendant’s conviction was reversed and the case was remanded for a new trial.

Colorado Court of Appeals: Evidence From One Trial Would Have Been Admissible at Other so Joinder Proper

The Colorado Court of Appeals issued its opinion in People v. Bondsteel on Thursday, November 19, 2015.

Joinder—Crim.P. 13—CRE 404(b)—Pretrial Lineups—Unduly Suggestive—Challenge for Cause—Jury—Kidnapping—Evidence—Prosecutorial Misconduct.

The trial court joined two separate cases against Bondsteel for trial: (1) the Signal Mountain Trail case in which Bondsteel had attacked two women while they were hiking; and (2) the motorcycle case in which Bondsteel approached four women in three separate cars while on his motorcycle, taking their cell phones and other belongings and demanding that the women move or remove portions of their clothing. A jury convicted him of multiple offenses, including second-degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault.

On appeal, Bondsteel first contended that the trial court erred in allowing the prosecution to join the two cases for trial. However, Bondsteel failed to satisfy either prong of the misjoinder test. Therefore, the trial court did not abuse its discretion in joining the cases.

Bondsteel next contended that because the pretrial lineups in which N.D. and K.D. both identified him as their attacker were unduly suggestive, their identifications should have been suppressed. All six lineup participants were dressed in camouflage with head coverings, leaving only their eyes visible, just as the victims had described their attacker to sheriff’s office deputies. Four of the participants had blue eyes; Bondsteel and one other participant had brown eyes. The disparity in the participants’ eye colors did not render the lineups impermissibly suggestive. Therefore, the trial court did not err in denying his motion to suppress.

Bondsteel contended that the trial court wrongfully denied his for-cause challenge to juror J.H., whom he eventually excused with a peremptory challenge. Even if the trial court abused its discretion in denying the challenge for cause, Bondsteel was not entitled to relief because he failed to show that a biased or incompetent juror sat on the jury instead of J.H.

Bondsteel further contended that the trial court committed reversible plain error by failing to instruct the jury sua sponteon the limited purposes for which it could consider evidence of the motorcycle case in relation to the Signal Mountain Trail case. However, Bondsteel failed to raise this issue, and a trial court’s failure to give a limiting instruction sua spontein the CRE 404(b) context was not reversible plain error.

Bondsteel argued that the evidence was insufficient to convict him for second-degree kidnapping of N.D. and K.D.; alternatively, he contended that the jury instructions on these counts were deficient. Although Bondsteel only moved N.D. a short distance, it substantially increased the risk of harm to N.D. by moving her off the public path. In contrast, there was no evidence in the record that Bondsteel moved K.D. at all. Because the evidence on the second-degree kidnapping conviction of K.D. was insufficient, this conviction was reversed and the accompanying sentence was vacated.

Finally, Bondsteel argued that the judgments must be reversed because the prosecutors misrepresented the nature of DNA evidence during closing argument. Bondsteel’s counsel did not object to the arguments at trial, and there was either support in the record for the prosecutor’s arguments or there was a lack of evidence in the record that defense counsel’s failure to object was tactical instead of inadvertent. Therefore, reversal was not required.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Flight Admissible as Res Gestae, Not Other Bad Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Gee on Thursday, October 22, 2015.

Evidence of Flight—CRE 404(b)—CRE 401—Habitual Criminal—Extended Proportionality Review—Motion for New Trial.

Gee, Wilson, and Ray went to the victim’s apartment with the intent to rob him. The victim was shot five times. When Gee and three others in his vehicle were located, the police retrieved evidence of the crime in the vehicle. Gee was convicted of first-degree assault with a deadly weapon, first-degree burglary as a crime of violence, and aggravated robbery with a deadly weapon. Shortly after sentencing, he filed a motion for a new trial, which was denied.

On appeal, Gee contended that the trial court erred in admitting evidence that he fled to Michigan while awaiting trial. Gee asserted that this evidence was subject to CRE 404(b) as evidence that he knowingly violated a bail bond conditions or knowingly failed to appear for trial or other proceedings, and that the prosecution failed to provide pretrial notice of its intent to introduce the evidence. However, evidence of Gee’s flight was relevant under CRE 401 because it was res gestaeevidence, relevant to show consciousness of guilt, and therefore it was not subject to CRE 404(b).

Gee also contended that the trial court erred in adjudging him a habitual criminal. Although Gee was a juvenile when he committed the prior offense of conspiracy, he pleaded guilty as an adult and was convicted within 10 years of the charged offense, which satisfied the habitual criminal statute. Therefore, the conspiracy conviction qualified as a predicate offense.

Gee further argued that the trial court erred in denying his request for an extended proportionality review of his sentence. Because none of the imposed sentences raised an inference of gross disproportionality, the trial court did not err in denying Gee’s request.

Finally, Gee argued that the trial court erred in denying his motion for a new trial. As grounds, Gee stated that both Wilson and Ray had recently made statements that exculpated him. However, new testimony by a co-defendant is not newly discovered evidence, and even if it was found to be newly discovered evidence, the trial court did not abuse its discretion in finding that this evidence probably would not result in an acquittal on retrial due to the overwhelming evidence against Gee. The judgment, sentence, and order were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence of Prior Bad Acts Not Introduced to Show Character but to Show Potential Harms

The Colorado Court of Appeals issued its opinion in People in Interest of A.W. on Thursday, October 8, 2015.

Juvenile—Dependent and Neglected—Motion to Continue—Witness—CRE 404(b)—Injurious Environment—Motion for New Trial—CRCP 59(d)(1).

This case involves a juvenile court adjudicating an infant child, A.W., dependent and neglected. A.W.’s mother tried her case to a jury, which found that A.W. lacked proper parental care and that A.W.’s environment was injurious to her welfare.

On appeal, mother argued that the juvenile court erred in denying her motion to continue the adjudicatory hearing. When a motion for continuance is based on the absence of a witness, there is no abuse of discretion in denying the motion if the party seeking continuance did not use due diligence to procure the presence of that witness. Here, mother did not provide the transcript of the hearing in which she requested the continuance. Therefore, it cannot be shown that the juvenile court abused its discretion in denying her motion.

Mother next argued that the juvenile court violated CRE 404(b) and People v. Spoto, 795 P.2d 1314 (Colo. 1990), in permitting the Department of Human Services to introduce evidence about her prior dependency and neglect case, wherein her parental rights to her other seven children were terminated. A.W. had not been in mother’s care; therefore, neither CRE 404(b) nor the Spoto test applied to this case. Further, because mother’s acts in a prior dependency and neglect case were used to predict whether A.W. would be exposed to an injurious environment, they were relevant to the jury determining A.W.’s status as dependent and neglected.

Finally, mother contended that the juvenile court erred by denying her motion for a new trial. Because mother’s motion was not supported by affidavit, as required by CRCP 59(d)(1), the juvenile court did not abuse its discretion by denying her motion. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Admissibility of Alternate Suspect Evidence Should Be Evaluated on Case-by-Case Basis

The Colorado Supreme Court issued its opinion in In re People v. Elmarr on Monday, June 29, 2015.

Alternate Suspect Evidence—Relevance—Hearsay—CRE 403.

In this case, the Supreme Court set forth the proper framework for analyzing the admissibility of alternate suspect evidence. The Court held that the admissibility of such evidence ultimately depends on the strength of the connection between the alternate suspect and the charged crime. The touchstone of relevance in this context is whether the evidence establishes a non-speculative connection or nexus between the alternate suspect and the crime charged. Where the evidence concerns other acts by the alternate suspect, a court must look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime. CRE 404(b) principles guide this analysis. In addition, where the evidence concerns statements by the alternate suspect, a court must determine whether the alternate suspect’s statements meet the requirements of CRE 804(b)(3) or any other applicable hearsay exception. Finally, even relevant alternate suspect evidence may be excluded if its probative value is substantially outweighed by countervailing policy considerations under CRE 403, such as the danger of confusion of the issues or misleading the jury, or by considerations of undue delay.

Summary and full case available here, courtesy of The Colorado Lawyer.