photographs of victim of sexual assault and homicide were relevant "in showing the crime seene, illustrating the cause of death and as evidence of the alleged sexual assault"
How later courts described this case
- photographs of victim of sexual assault and homicide were relevant "in showing the crime seene, illustrating the cause of death and as evidence of the alleged sexual assault"
Written by the judges who cited it.
The opinion
KIRSHBAUM, Judge,
concurring specially.
Because I agree that the evidence of defendant's prior similar acts was offered to prove and was relevant to the issue of identity in this case, I concur with the result reached by the majority. However, I do not agree that such evidence was relevant to establish plan, scheme, design or motive. Such secondary theories were never brought into question in this case. See People v. Casper, Colo.App., 631 P.2d 1134 (1981). I also conclude that the similarities of the two transactions were not sufficient ly distinctive to establish any "modus oper-andi" of this defendant. However, I conclude that the admission of this evidence for unwarranted purposes and the consequent erroneous instructions constitute harmless error in this case. See People v. Reed, 42 Colo.App. 275 , 598 P.2d 148 (1979). I also find no abuse of discretion in the trial court's determination that the probative value of the evidence outweighs its prejudicial effect. See People v. Gutierrez, Colo., 622 P.2d 547 (1981).