People v. Ihme
| Decision Date | 25 November 1974 |
| Docket Number | No. 25946,25946 |
| Citation | 187 Colo. 48,528 P.2d 380 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Ray IHME, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Donna A. Maranchik, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Richard A. Anderson, Ronald Lee Miller, Lakewood, for defendant-appellant.
Defendant was found guilty by a jury of selling narcotic drugs and conspiracy to sell narcotic drugs. On this appeal, he mainly challenges the propriety of the trial court's ruling which permitted the presentation of evidence concerning defendant's involvement in a prior criminal transaction. This and the other grounds for reversal advanced by the defendant have no merit. The judgment of the trial court is therefore affirmed.
The offenses for which the defendant was convicted involve the sale of approximately two ounces of cocaine by defendant and two other persons to law enforcement agents Forde and Wing. Over the defendant's objection, Forde testified regarding a transaction two months earlier in which he had purchased five ounces of marijuana from defendant and another person.
The prosecution offered this evidence to show scheme, plan, intent or design. The defendant contends that it violates the elementary rule which prohibits the use of evidence of other crimes to prove guilt of the crime charged. Moreover, he contends that this evidence does not come within the exception which permits the introduction of evidence of other crimes for the purpose of showing scheme, plan, intent or design. The trial court ruled that this evidence did come within the exception and, in accordance with the requirements of Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), gave the jury the cautionary instructions as to the limited purpose of this evidence.
The rule is well-established in Colorado that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. The obvious reason for the rule is to provide a fair trial and to insure that no person is convicted of an offense because he participated in some other crime. Warford v. People, 43 Colo. 107, 96 P. 556 (1908). See also 1 Wigmore § 194 (3d Ed.1940). It is because of this fear of unfairly prejudicing the accused that the evidence is excluded. See McCormick on Evidence § 190 (2d Ed.1972); 1 Wharton's Criminal Evidence, § 240 (13th ed.1972). Compare, American Law Institute, Model Code of Evidence, Rule 311 (1942).
It has been recognized, however, that the hard and fast application of this rule is unwise in certain limited situations, where exceptions have been made. Such an exception exists where the evidence of other criminal activity tends to show scheme, plan, intent or design. People v. Lamarito, 180 Colo. 250, 504 P.2d 661 (1972); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972); Bacino v. People, 104 Colo. 229, 90 P.2d 5 (1939). It is this exception which in our view is applicable in this case.
The primary fact issue in this case was whether the defendant was a participant in the sale of the cocaine or whether he was merely a casual observer. The evidence that marijuana had been purchased from the defendant and another person two months before tended to show that defendant was engaged in a continuing plan, scheme, or design to sell illicit drugs.
In explaining the scope of this exception, it has been stated that this exception applies when the evidence shows a larger continuing plan to engage in a certain criminal activity, and it especially applies in cases where motive, identity of the actor, and intent are in dispute. McCormick on Evidence § 190 (2d Ed.1972). The evidence here tends to support the prosecution's contention that defendant, along with another, was engaged in a continuing scheme or plan to sell unlawful drugs, and that he therefore was a participant, and not a casual observer in connection with the charges...
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