La Plata County District Court No. 10CR507 Honorable David L. Dickenson, Judge
John W. Suthers, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Thomas R. Williamson, Durango, Colorado, for Defendant-Appellant
¶ 1 A jury convicted defendant, Mark Steven Brown, of two counts each of stalking, invasion of privacy, and unlawful sexual contact. He appeals the judgment of conviction. We reverse and remand for a new trial.
¶ 2 In September 2010, defendant asked a woman he knew if she wanted to "housesit" in his apartment for six months while he worked in South Korea. She agreed.
¶ 3 Before he left, and without the housesitter's knowledge, defendant set up motion-sensitive video cameras in the apartment's bedroom and living room. The housesitter discovered the cameras about twelve days after she moved in. She called the police.
¶ 4 The police determined that the cameras had made about 1500 short recordings. Many of the recordings showed the housesitter engaged in household activity. But some of them showed her having sex with her boyfriend.
A. Evidence of Uncharged Misconduct
¶ 5 Defendant contends that the trial court abused its discretion when it "admitted other act evidence of an unrelated sexual encounter involving another individual." We agree.
1. Standard of Review and Legal Principles
¶ 6 We review a trial court's evidentiary rulings for an abuse of discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A court's erroneous decision to admit evidence of other acts under CRE 404(b) is subject to the nonconstitutional harmless error standard. Yusem v. People, 210 P.3d 458, 469 (Colo. 2009). We will reverse a conviction if we conclude that there is a reasonable probability that a nonconstitutional error "contributed to [the] . . . conviction by substantially influencing the verdict or impairing the fairness of the trial." People v. Casias, 2012 COA 117, ¶ 61. A "reasonable probability" in this context means "only a probability sufficient to undermine confidence in the outcome of the case." Id. at ¶ 63.
¶ 7 CRE 404(b) governs the admissibility of evidence of uncharged acts. It states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
¶ 8 (We note that the admission of evidence of prior episodes of unlawful sexual contact is also subject to section 16-10-301, C.R.S. 2014. But we need not discuss that statute here because such evidence must also satisfy the four-part test found in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), that courts use to analyze whether evidence of other acts is admissible under CRE 404(b). See People v. Jones, 2013 CO 59, ¶ 14; People v. Underwood, 53 P.3d 765, 769 (Colo.App. 2002); People v. Martinez, 36 P.3d 154, 158-59 (Colo.App. 2001). We conclude, for the reasons that we explain below, that the other act evidence in this case did not satisfy one part of the Spoto test.)
¶ 9 A court may admit evidence under CRE 404(b) only if it satisfies the four-part test established in Spoto. Those four steps are:
1. Does the other act evidence relate to a material fact?
2. Is the evidence logically relevant under CRE 401?
3. Is the logical relevance of the other act evidence independent of the impermissible inference that the crime was a product of the defendant's bad character?
4. Applying CRE 403, is the probative value of the evidence "substantially outweighed by the danger of ...