People v. Adrian , 744 P.2d 768 ( 1987 )

BABCOCK, Judge,

dissenting.

I dissent.

The majority opinion totally ignores our Supreme Court’s long-standing rule, unaffected by the enactment of either § 16-10-301, C.R.S. (1986 Repl.Vol. 8A) or CRE 404(b), that for evidence of prior similar offenses to be admissible in criminal proceedings, they must have occurred within the period of the statute of limitations. See Abbott v. People, 89 Colo. 121, 299 P. 1053 (1931); Curtis v. People, 72 Colo. 350, 211 P. 381 (1922); Bigcraft v. People, 30 Colo. 298, 70 P. 417 (1902); see also People ex rel. Kent v. Denious, 118 Colo. 342, 196 P.2d 257 (1948). The period of limitations for prosecution for sexual assault on a child pursuant to § 18-3-405, C.R.S. (1986 Repl.Vol. 8B) is 10 years. Section 16-5-401(6), C.R.S. (1986 Repl.Vol. 8A). Evidence of defendant’s conduct that occurred 15 to 19 years prior to trial was therefore inadmissible. See Abbott v. People, supra.

The evidence was also too remote in time to have any relevancy whatsoever to defendant’s motive or modus operandi in the offenses charged. See People v. Thomas, 20 Cal.3d 457, 573 P.2d 433, 143 Cal.Rptr. 215 (1978) (testimony that defendant had committed “lewd and lascivious acts” with daughter 10 to 18 years prior to offenses charged held too remote to be relevant). Here, the evidence of prior acts was probative only of defendant’s propensity to commit the crimes charged. This is a forbidden purpose, see CRE 404(b), and the evidence was therefore improperly admitted. See People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).

In Stull, our Supreme Court iterated the bedrock principle that: “ ‘Thou shalt not convict a person of an offense by proof that he is guilty of another.’ ” In light of the majority opinion, I fear the “similar transaction” exception has now consumed the salutory rule that evidence of prior acts is never admissible to show an accused’s propensity to commit crimes.

Because the trial court abused its discretion in admitting this irrelevant and highly prejudicial evidence, reversal of defendant’s conviction is required.