Pigford v. People

• Decision Date: 09 April 1979
• Docket Number: No. C-1570,C-1570
• Citation: 197 Colo. 358,593 P.2d 354
• Parties: David PIGFORD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 354

593 P.2d 354

197 Colo. 358

David PIGFORD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. C-1570.

Supreme Court of Colorado, En Banc.

April 9, 1979.

Rehearing Denied April 30, 1979.

J. Gregory Walta, Colorado State Public Defender, Craig L. Truman, Chief Deputy State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, Denver, for petitioner.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Anthony M. Marquez, Asst. Atty. Gen., Denver, for respondent.

ROVIRA, Justice.

The Petitioner (defendant) appeals the decision of the court of appeals which upheld his convictions for first-degree burglary, section 18-4-202, C.R.S. 1973, and criminal attempt to commit first-degree sexual assault, section 18-2-101, C.R.S. 1973. We affirm.

For a detailed recitation of the facts in this case, see the decision of the court of appeals, People v. Pigford, Colo.App., 580 P.2d 820 (1978). Briefly stated, the defendant allegedly entered the apartment of, and attempted to sexually assault, the victim. In the subsequent trial, the People offered into evidence testimony of another woman who had been the victim of a similar sexual assault by the defendant.

The defendant bases his appeal on two grounds: first, that the testimony of prior sexual offenses with third parties is not admissible under any circumstances; second, that even if such testimony could be admitted under section 16-10-301, C.R.S. 1973 (1978 Repl. Vol. 8), the prior criminal act in this case was not sufficiently similar to the offense for which the defendant was tried.

The first issue is whether evidence of prior sexual criminal acts with persons other than the victim is admissible in a prosecution for a sexual offense. Under the common law rule, we have held such evidence to be inadmissible. Huerta v. People, 168 Colo. 276, 450 P.2d 648 (1969); Dockerty v. People, 74 Colo. 113, 219 P. 220 (1923).

However, in 1975 the legislature enacted section 16-10-301, C.R.S. 1973, which provides in part:

"(1) In criminal prosecutions brought under part 4 of article 3 of title 18, C.R.S. 1973 (Unlawful Sexual Behavior), the prosecution may, subject to the provisions of this part 3, introduce evidence of other, similar acts or transactions of the defendant for the purpose of showing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent."

The interplay of common law and a subsequent statute on the same subject is governed by well-defined principles. Legislative acts in derogation of the common law will be strictly construed to restrict the provisions to the clear intent of the legislature. Board of County Commissioners of Pitkin County v. Pfeifer, 190 Colo. 275, 546 P.2d 946 (1976); Stowell v. People, 104 Colo. 255, 90 P.2d 520 (1939). In addition, criminal statutes must be strictly construed in favor of the accused. People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977). However, legislative intent which is clearly expressed must be given effect. Alvarez v. District Court in and for the City and County of Denver, 186 Colo. 37, 525 P.2d 1131 (1974).

In determining the legislative intent in the enactment of this statute, we first note that the general rule at common law was that evidence of similar acts or transactions not directly related to the issue in controversy was inadmissible. An exception to this rule allowed the admission of such evidence if it was probative of intent, scheme, or motive. However, in Huerta, supra, we held that evidence of prior sexual offenses with persons other than the victim was not admissible under any circumstances.

In his concurring opinion in Huerta, Chief Justice McWilliams stated that the opinion of the court constricted the exception for the admissibility of prior transactions too narrowly. He stated that there were circumstances under which similar offenses with third parties should be admissible "(A)nd such evidence is also admissible if the acts have a reasonably close relation in scheme and pattern and in time to the crime charged."

Section 16-10-301, C.R.S. 1973, is a clear statement of the legislative intent to change the common law as set out in Huerta, and to codify the view expressed by Chief Justice McWilliams in his concurring opinion. The statute specifically encompasses sexual offenses and draws no distinction between prior offenses with the present victim and those with third parties. If the similar acts or transactions are probative of a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge or intent, the statute provides for its admissibility. ¹

In so doing, the legislature has placed Colorado with those jurisdictions that in prosecutions for sexual offenses have allowed evidence of similar acts or transactions with other persons. E. Cleary & J. Strong, Evidence 241 (2d ed. 1975). For example, the Supreme Court of California has recently held that, although evidence of prior sexual offenses committed upon persons other than the prosecuting witness is often unreliable and difficult to prove, it is nonetheless admissible to show...