People v. McGraw, No. 99CA1704.

Docket NºNo. 99CA1704.
Citation30 P.3d 835
Case DateApril 26, 2001
CourtCourt of Appeals of Colorado

30 P.3d 835

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael L. McGRAW, Defendant-Appellant

No. 99CA1704.

Colorado Court of Appeals, Div. II.

April 26, 2001.

As Modified on Denial of Rehearing June 7, 2001.

Certiorari Denied September 10, 2001.


30 P.3d 837
Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Christopher H. Gehring, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge PLANK.

Defendant, Michael L. McGraw, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of two counts of second degree arson. We affirm the judgment but remand for a restitution hearing and correction of the mittimus.

Defendant was charged with arson in connection with the burning of two vehicles within a ten-day period. The first vehicle belonged to his ex-girlfriend, the second to the ex-girlfriend's new boyfriend.

Prior to trial, defense counsel filed a motion seeking the exclusion of evidence of a statement allegedly made by defendant to his new girlfriend when she visited him during his pretrial incarceration. Defendant allegedly asked his new girlfriend to tell his ex-girlfriend that "she has been warned and her mother is next." Defense counsel argued that this evidence (the challenged evidence) was inadmissible evidence of bad character under CRE 404(b). The trial court ruled that the challenged evidence was admissible pursuant to CRE 404(b) for the limited purpose of showing defendant's motive for the crimes.

Upon conviction, defendant was sentenced to six years in a community corrections facility (ComCor). The trial court granted the prosecution 30 days from the date of the sentencing hearing in which to submit a restitution amount and informed defendant that he could request a restitution hearing after receiving notice of the amount. The court subsequently entered an order requiring restitution in the amount requested by the prosecution. Ten days later, defendant filed an objection to the amount of restitution and requested a hearing on the matter. No such hearing was held.

Defendant entered ComCor on July 17, 1999. On September 15, 1999, he was returned to the custody of the sheriff's office because he had violated a condition of his placement. A letter from ComCor informed the trial court that defendant had served 61 days of his sentence, from July 17 through and including September 15. Defendant then became suicidal, and on September 17, 1999, he was involuntarily hospitalized at the Colorado Mental Health Institute at Pueblo (CMHIP). He was released on October 1, 1999, but was rehospitalized shortly thereafter.

On October 22, 1999, the trial court resentenced defendant to six years in the Department of Corrections (D.O.C.), crediting him for 79 days spent in confinement prior to the ComCor sentence and 61 days spent in ComCor. Defendant was not credited for the period of September 16 to October 22, during much of which time he was at CMHIP.

I.

Defendant contends that the challenged evidence is improper character evidence and that the trial court violated CRE 404(b), as well as his constitutional rights to due process and trial by jury, by admitting it. He further contends that the trial court erred in admitting the challenged evidence under CRE 404(b) without first determining by a preponderance of the evidence that the

30 P.3d 838
alleged statement was made and defendant made it. We disagree

CRE 404(b) provides:

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.

For other-act evidence to be admissible under CRE 404(b), it must (1) relate to a material fact; (2) be logically relevant, tending to make the existence of the material fact more or less probable; (3) be relevant independent of the inference that the defendant has a bad character and acted in conformity with that character in committing the crime; and (4) have probative value that is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo.1990).

Before admitting other-act evidence, the trial court must be satisfied by a preponderance of the evidence that the other act occurred and the defendant committed the act. People v. Garner, 806 P.2d 366 (Colo. 1991).

The Colorado Rules of Evidence strongly favor the admission of relevant evidence. A trial court has substantial discretion in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion. People v. Quintana, 882 P.2d 1366 (Colo.1994).

An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).

Here, the "other act" was defendant's threat against his ex-girlfriend's mother in the statement "she has been warned and her mother is next." The trial court applied the four-part Spoto test and found that this act related to the material fact of defendant's motive to commit the crimes, was logically relevant to defendant's motive, was relevant independent of an inference that defendant had a bad character and acted in conformity with that character, and had probative value that was not substantially outweighed by the danger of unfair prejudice. We perceive no abuse of discretion in the trial court's analysis.

While the better practice may be for a trial court to make explicit that it has found by a preponderance of the evidence that the defendant committed the other act, ...

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22 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion.” People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001). “An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair.” ......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion." People v. McGraw, 30 P.3d 835, 838 (Colo. App. 2001). "An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair.......
  • People v. Davis, No. 07CA0595.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 24, 2008
    ...Davis committed them. See Warren, 55 P.3d at 814 (the trial court implicitly determined that the prior act occurred); People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001) (the trial court implicitly determined that the defendant committed other act in ruling that the evidence was Accordingly,......
  • People v. Rosales, No. 03CA0077.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 11, 2005
    ...double jeopardy principles, defer determination of the amount of restitution to be imposed, subject to a later hearing." People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001); People v. Smith, supra, ___ P.3d at ___ ("[A] sentence that is contrary to legislative mandates is illegal and may be ......
  • Request a trial to view additional results
22 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion.” People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001). “An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair.” ......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...in deciding the admissibility of evidence, and its ruling will not be disturbed absent an abuse of discretion." People v. McGraw, 30 P.3d 835, 838 (Colo. App. 2001). "An abuse of discretion occurs only if the trial court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair.......
  • People v. Davis, No. 07CA0595.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 24, 2008
    ...Davis committed them. See Warren, 55 P.3d at 814 (the trial court implicitly determined that the prior act occurred); People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001) (the trial court implicitly determined that the defendant committed other act in ruling that the evidence was Accordingly,......
  • People v. Rosales, No. 03CA0077.
    • United States
    • Colorado Court of Appeals of Colorado
    • August 11, 2005
    ...double jeopardy principles, defer determination of the amount of restitution to be imposed, subject to a later hearing." People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001); People v. Smith, supra, ___ P.3d at ___ ("[A] sentence that is contrary to legislative mandates is illegal and may be ......
  • Request a trial to view additional results

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