Spoto test in Colorado

2025If, however, the extrinsic-acts evidence suggests that the defendant has a bad character and that he acted in conformity with that bad character in this instance, it is admissible "only as provided by Rule 404(b) and after a Spoto analysis." Id. ¶32 Under Spoto , courts must consider whether the evidence (1) relates to a material fact and (2) is logically relevant (3) independent of the prohibited inference that the defendant has a bad character and acted in conformity with that character in this instance, and (4) whether the risk of unfair prejudice substantially outweighs the evidence's prob

2025If, however, the extrinsic-acts evidence suggests that the defendant has a bad character and that he acted in conformity with that bad character in this instance, it is admissible "only as provided by Rule 404(b) and after a Spoto analysis." Id. ¶32 Under Spoto , courts must consider whether the evidence (1) relates to a material fact and (2) is logically relevant (3) independent of the prohibited inference that the defendant has a bad character and acted in conformity with that character in this instance, and (4) whether the risk of unfair prejudice substantially outweighs the evidence's prob

2026Its relevance was also independent of the prohibited inference that Torreyson committed the charged offense because he had a “propensity to get angry and form an intent to kill.” See People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.”).

2026Its relevance was also independent of the prohibited inference that Torreyson committed the charged offense because he had a “propensity to get angry and form an intent to kill.” See People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.”).

2026See Yusem v. People, 210 P.3d 458, 464 (Colo. 2009) (explaining that the first prong of the Spoto test is the easiest 8 to satisfy, and that so long as the purposes for which the prior act evidence is offered are somehow probative of an ultimate fact, the first prong is satisfied). ¶ 21 Further, the 2003 assault was logically relevant to the material facts because it was neither too dissimilar nor too remote.

2026See Yusem v. People, 210 P.3d 458, 464 (Colo. 2009) (explaining that the first prong of the Spoto test is the easiest 8 to satisfy, and that so long as the purposes for which the prior act evidence is offered are somehow probative of an ultimate fact, the first prong is satisfied). ¶ 21 Further, the 2003 assault was logically relevant to the material facts because it was neither too dissimilar nor too remote.

2025If the answer is yes, the court continues to Spoto 's third prong. ¶35 "The third prong of the Spoto test does not demand the absence of the [prohibited] inference but merely requires that the proffered evidence be logically relevant independent of that inference." People v. Snyder , 874 P.2d 1076, 1080 (Colo. 1994) (emphasis added); see also Rath , 44 P.3d at 1038 ("[T]he evidence must be probative for some logical reason other than 'that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character.'" (quoting Spoto , 795 P.2d at 1318)

2025If the answer is yes, the court continues to Spoto 's third prong. ¶35 "The third prong of the Spoto test does not demand the absence of the [prohibited] inference but merely requires that the proffered evidence be logically relevant independent of that inference." People v. Snyder , 874 P.2d 1076, 1080 (Colo. 1994) (emphasis added); see also Rath , 44 P.3d at 1038 ("[T]he evidence must be probative for some logical reason other than 'that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character.'" (quoting Spoto , 795 P.2d at 1318)

2026The supreme court later held in Boettcher & Co. v. Munson, 854 P.2d 199, 210 (Colo. 1993), that the Spoto analysis applies when evaluating whether CRE 404(b) excludes “other acts” evidence in a civil action.

2026The supreme court later held in Boettcher & Co. v. Munson, 854 P.2d 199, 210 (Colo. 1993), that the Spoto analysis applies when evaluating whether CRE 404(b) excludes “other acts” evidence in a civil action.

2025See People v. Jones, 2013 CO 59, ¶ 16 (the third Spoto prong is satisfied so long as the logically relevant evidence achieves its purpose other than through an impermissible inference); People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.”).

2025See People v. Jones, 2013 CO 59, ¶ 16 (the third Spoto prong is satisfied so long as the logically relevant evidence achieves its purpose other than through an impermissible inference); People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference.”).

2026Rule 404(b) applies only to extrinsic acts, and not to intrinsic acts that “directly prove the charged offense [or] occur contemporaneously with the charged offense and facilitate the commission of it.” Rojas v. People, 2022 CO 8, ¶ 44 . ¶9 To determine whether extrinsic other act evidence is admissible, courts apply the four-part Spoto test, analyzing whether (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) that logical relevance is independent of the impermissible propensity inference; and (4) the evidence’s probative value is substantially outweighed

2026Rule 404(b) applies only to extrinsic acts, and not to intrinsic acts that “directly prove the charged offense [or] occur contemporaneously with the charged offense and facilitate the commission of it.” Rojas v. People, 2022 CO 8, ¶ 44 . ¶9 To determine whether extrinsic other act evidence is admissible, courts apply the four-part Spoto test, analyzing whether (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) that logical relevance is independent of the impermissible propensity inference; and (4) the evidence’s probative value is substantially outweighed

2022See People v. Chavez, 2020 COA 80M , ¶ 8, 486 P.3d 377, 378 (“A court abuses its discretion if it misinterprets or misapplies the law.”). ¶55 The error was not harmless.

2022See People v. Chavez , 2020 COA 80M , ¶ 8 , 486 P.3d 377, 378 ( "A court abuses its discretion if it misinterprets or misapplies the law." ) . ¶55 The error was not harmless.

2017She also testified that on one occasion defendant grabbed her from behind, touched her breasts and “below her stomach,” and pressed his erect penis against her. ¶ 33 This evidence related to the material fact of whether defendant “knowingly subject[ed] another not his or her spouse to any sexual contact.” § 18-3-405(1), C.R.S. 2017 (defining sexual assault on a child); see also Spoto, 795 P.2d at 1318 ; People v. Villa, 240 P.3d 343, 351 (Colo. App. 2009). ¶ 34 It also met the second prong of the Spoto test.

2017She also testified that on one occasion defendant grabbed her from behind, touched her breasts and “below her stomach,” and pressed his erect penis against her. ¶ 33 This evidence related to the material fact of whether defendant “knowingly subject[ed] another not his or her spouse to any sexual contact.” § 18-3-405(1), C.R.S. 2017 (defining sexual assault on a child); see also Spoto, 795 P.2d at 1318 ; People v. Villa, 240 P.3d 343, 351 (Colo. App. 2009). ¶ 34 It also met the second prong of the Spoto test.

2016See 795 P.2d at 1318 ; see also People v. Trujillo , 2014 COA 72, ¶84 .

2016See 795 P.2d at 1318 ; see also People v. Trujillo , 2014 COA 72, ¶84 .

2016In other words, defendant contended that the crime’s actus reus did not occur. ¶38 We conclude that, as modus operandi evidence, the evidence of the February drug deal did not satisfy the first step of the Spoto test, see 795 P.2d at 1318 , because that evidence did not relate to a material fact that was "of consequence to the determination of the action," CRE 401; see also, e.g., United States v. Shackleford , 738 F.2d 776, 778 (7th Cir. 1984)(The trial court should not have admitted evidence of uncharged misconduct to prove identity when the defendant did not deny that he was the person whom

2016In other words, defendant contended that the crime’s actus reus did not occur. ¶38 We conclude that, as modus operandi evidence, the evidence of the February drug deal did not satisfy the first step of the Spoto test, see 795 P.2d at 1318 , because that evidence did not relate to a material fact that was "of consequence to the determination of the action," CRE 401; see also, e.g., United States v. Shackleford , 738 F.2d 776, 778 (7th Cir. 1984)(The trial court should not have admitted evidence of uncharged misconduct to prove identity when the defendant did not deny that he was the person whom

2008See, e.g., People v. Covington, 988 P.2d 657, 664 (Colo.App.1999) (appearing to treat impeachment evidence as different from "other act" evidence), rev'd on other grounds, 19 P.3d 15 (Colo.2001); People v. Harris, 892 P.2d 378, 382 (Colo.App.1994) (noting that it is questionable whether the Spoto analysis is required where the evidence of other acts is offered "solely" for impeachment purposes; citing United States v. Rackley, 986 F.2d 1357 (10th Cir.1993)).

2008See, e.g., People v. Covington, 988 P.2d 657, 664 (Colo.App.1999) (appearing to treat impeachment evidence as different from "other act" evidence), rev'd on other grounds, 19 P.3d 15 (Colo.2001); People v. Harris, 892 P.2d 378, 382 (Colo.App.1994) (noting that it is questionable whether the Spoto analysis is required where the evidence of other acts is offered "solely" for impeachment purposes; citing United States v. Rackley, 986 F.2d 1357 (10th Cir.1993)).

2002However, "[t]he third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference." People v. Snyder, 874 P.2d 1076, 1080 (Colo.1994); accord People v. Willner, 879 P.2d 19, 28 (Colo.1994).

2002However, "[t]he third prong of the Spoto test does not demand the absence of the inference but merely requires that the proffered evidence be logically relevant independent of that inference." People v. Snyder, 874 P.2d 1076, 1080 (Colo.1994); accord People v. Willner, 879 P.2d 19, 28 (Colo.1994).

2026See People v. Martinez, 36 P.3d 154, 158-61 (Colo. App. 2001) (conducting a CRE 404(b) analysis for the first time on appeal). ¶ 70 Even assuming that the arrest evidence satisfied the first and second Spoto factors, we conclude that it fails under the third and fourth factors for the same reasons we held that the social media 35 evidence was inadmissible.

2026See People v. Martinez, 36 P.3d 154, 158-61 (Colo. App. 2001) (conducting a CRE 404(b) analysis for the first time on appeal). ¶ 70 Even assuming that the arrest evidence satisfied the first and second Spoto factors, we conclude that it fails under the third and fourth factors for the same reasons we held that the social media 35 evidence was inadmissible.

2026See People v. Ramirez, 18 P.3d 822, 828 (Colo. App. 2000).

2026See People v. Ramirez, 18 P.3d 822, 828 (Colo. App. 2000).

2026See People v. Vialpando, 954 P.2d 617, 623 (Colo. App. 1997) (limiting instructions mitigate the danger of unfair prejudice). ¶ 28 Accordingly, because we agree with the trial court’s application of the Spoto factors and CRE 404(b), we perceive no error in its admission of Nelson’s testimony about the stolen backpack and the threats Torreyson made to Paul and Jamie.

2026See People v. Vialpando, 954 P.2d 617, 623 (Colo. App. 1997) (limiting instructions mitigate the danger of unfair prejudice). ¶ 28 Accordingly, because we agree with the trial court’s application of the Spoto factors and CRE 404(b), we perceive no error in its admission of Nelson’s testimony about the stolen backpack and the threats Torreyson made to Paul and Jamie.

2026See Rojas, ¶ 52 (requiring a Spoto analysis “if extrinsic evidence suggests bad character”); People v. Thompson, 950 P.2d 608, 614 (Colo. App. 1997) (holding that district court’s failure to sua sponte conduct a Spoto analysis of unchallenged evidence was not plain error).

2026See Rojas, ¶ 52 (requiring a Spoto analysis “if extrinsic evidence suggests bad character”); People v. Thompson, 950 P.2d 608, 614 (Colo. App. 1997) (holding that district court’s failure to sua sponte conduct a Spoto analysis of unchallenged evidence was not plain error).

2025See People v. Melendez, 102 P.3d 315, 322 (Colo. 2004) (a defendant must raise an issue and provide a trial court with “an adequate opportunity to make findings of fact and conclusions of law”); see also CRE 404(b).

2025People v. Ujaama, 2012 COA 36, ¶ 37 (An issue is unpreserved for review when, among other things, “an objection or request was made in the trial court, but on grounds different from those raised on appeal or on unspecific grounds 11 which would not have alerted the trial court to the issue of which the defendant now seeks review.”) (citation omitted). ¶ 25 Similarly, mother contends that the juvenile court improperly allowed her sister to testify about mother’s character for truthfulness.

2025People v. Ujaama, 2012 COA 36, ¶ 37 (An issue is unpreserved for review when, among other things, “an objection or request was made in the trial court, but on grounds different from those raised on appeal or on unspecific grounds 11 which would not have alerted the trial court to the issue of which the defendant now seeks review.”) (citation omitted). ¶ 25 Similarly, mother contends that the juvenile court improperly allowed her sister to testify about mother’s character for truthfulness.

2025See Garner, 806 P.2d at 370 (“A fact is established 23 by a preponderance of the evidence when, upon consideration of all the evidence, the existence of that fact is more probable than its nonexistence.”). ¶ 49 We are similarly unpersuaded by Jackson’s challenge to each prong of the court’s Spoto analysis. ¶ 50 “The first prong of the Spoto test is the easiest to satisfy.” Yusem v. People, 210 P.3d 458, 464 (Colo. 2009).

2025See Garner, 806 P.2d at 370 (“A fact is established 23 by a preponderance of the evidence when, upon consideration of all the evidence, the existence of that fact is more probable than its nonexistence.”). ¶ 49 We are similarly unpersuaded by Jackson’s challenge to each prong of the court’s Spoto analysis. ¶ 50 “The first prong of the Spoto test is the easiest to satisfy.” Yusem v. People, 210 P.3d 458, 464 (Colo. 2009).

2025See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009) (holding that defense counsel is charged with the task of deciding whether a limiting instruction is desirable, and the court must give a limiting instruction “upon request” (quoting CRE 105)); see People v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be strategic or tactical reasons for a defendant’s choice not to request a limiting instruction, and the court is not required to provide one sua sponte). ¶ 55 Third, even assuming that a Rule 404(b) analysis was required, the records satisfy the four-part Spoto test.

2025See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009) (holding that defense counsel is charged with the task of deciding whether a limiting instruction is desirable, and the court must give a limiting instruction “upon request” (quoting CRE 105)); see People v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be strategic or tactical reasons for a defendant’s choice not to request a limiting instruction, and the court is not required to provide one sua sponte). ¶ 55 Third, even assuming that a Rule 404(b) analysis was required, the records satisfy the four-part Spoto test.

2025In other words, "the evidence cannot be relevant only to show a propensity to commit crimes." People v. Cross , 2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog , 2019 COA 23, ¶ 42, 452 P.3d 148, 157). 19 ¶36 In considering Spoto 's fourth prong, "[u]nfair prejudice occurs . . . if otherwise admissible evidence has 'an undue tendency to suggest a decision [made] on an improper basis,' which is 'commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror.'" People v. Cousins , 181 P.3d 365, 370 (Colo.App. 2007) (second alteration in

2025In other words, "the evidence cannot be relevant only to show a propensity to commit crimes." People v. Cross , 2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog , 2019 COA 23, ¶ 42, 452 P.3d 148, 157). 19 ¶36 In considering Spoto 's fourth prong, "[u]nfair prejudice occurs . . . if otherwise admissible evidence has 'an undue tendency to suggest a decision [made] on an improper basis,' which is 'commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror.'" People v. Cousins , 181 P.3d 365, 370 (Colo.App. 2007) (second alteration in

2025In other words, "the evidence cannot be relevant only to show a propensity to commit crimes." People v. Cross , 2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog , 2019 COA 23, ¶ 42, 452 P.3d 148, 157). 19 ¶36 In considering Spoto 's fourth prong, "[u]nfair prejudice occurs . . . if otherwise admissible evidence has 'an undue tendency to suggest a decision [made] on an improper basis,' which is 'commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror.'" People v. Cousins , 181 P.3d 365, 370 (Colo.App. 2007) (second alteration in

2025In other words, "the evidence cannot be relevant only to show a propensity to commit crimes." People v. Cross , 2023 COA 24, ¶ 21, 531 P.3d 444, 449 (quoting People v. Denhartog , 2019 COA 23, ¶ 42, 452 P.3d 148, 157). 19 ¶36 In considering Spoto 's fourth prong, "[u]nfair prejudice occurs . . . if otherwise admissible evidence has 'an undue tendency to suggest a decision [made] on an improper basis,' which is 'commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution, or horror.'" People v. Cousins , 181 P.3d 365, 370 (Colo.App. 2007) (second alteration in

2025If, however, the extrinsic-acts evidence suggests that the defendant has a bad character and that he acted in conformity with that bad character in this instance, it is admissible "only as provided by Rule 404(b) and after a Spoto analysis." Id. ¶32 Under Spoto , courts must consider whether the evidence (1) relates to a material fact and (2) is logically relevant (3) independent of the prohibited inference that the defendant has a bad character and acted in conformity with that character in this instance, and (4) whether the risk of unfair prejudice substantially outweighs the evidence's prob

2025If, however, the extrinsic-acts evidence suggests that the defendant has a bad character and that he acted in conformity with that bad character in this instance, it is admissible "only as provided by Rule 404(b) and after a Spoto analysis." Id. ¶32 Under Spoto , courts must consider whether the evidence (1) relates to a material fact and (2) is logically relevant (3) independent of the prohibited inference that the defendant has a bad character and acted in conformity with that character in this instance, and (4) whether the risk of unfair prejudice substantially outweighs the evidence's prob

2025See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009) (holding that defense counsel is charged with the task of deciding whether a limiting instruction is desirable, and the court must give a limiting instruction “upon request” (quoting CRE 105)); see People v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be strategic or tactical reasons for a defendant’s choice not to request a limiting instruction, and the court is not required to provide one sua sponte). ¶ 55 Third, even assuming that a Rule 404(b) analysis was required, the records satisfy the four-part Spoto test.

2025See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009) (holding that defense counsel is charged with the task of deciding whether a limiting instruction is desirable, and the court must give a limiting instruction “upon request” (quoting CRE 105)); see People v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be strategic or tactical reasons for a defendant’s choice not to request a limiting instruction, and the court is not required to provide one sua sponte). ¶ 55 Third, even assuming that a Rule 404(b) analysis was required, the records satisfy the four-part Spoto test.

2025See People v. Draper, 2021 COA 120 , ¶ 85 n.10 (A district court’s “decision to admit evidence may be defended by any ground supported by the record, even if that ground was not considered by the trial court.”), overruled by Garcia v. People, 2023 CO 30 .

2025See People v. Draper, 2021 COA 120 , ¶ 85 n.10 (A district court’s “decision to admit evidence may be defended by any ground supported by the record, even if that ground was not considered by the trial court.”), overruled by Garcia v. People, 2023 CO 30 .