dissenting:
I respectfully dissent from the majority’s holding that the district court erred in admitting evidence of a prior incident involving the defendant’s use of a handgun. I would reverse the judgment of the court of appeals and hold that the district court did not abuse its discretion in admitting the prior-incident evidence.
As the majority notes, the framework for resolving the issue of whether evidence of prior incidents is admissible is provided by article IV of the Colorado Rules of Evidence. Maj. op. at 1318. “Unless" otherwise provided by constitution, statute or rule, all relevant evidence is admissible.” Maj. op. at 1318; CRE 402. Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” CRE 403. 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.
“The trial judge must weigh ... the bearing of the other transaction on the issues presented at the trial of the offense charged, and the degree to which the jury would be prejudiced by the other transaction. Because of these varying considerations, the trial judge is allowed substantial discretion when he decides regarding the admissibility of such evidence.” People v. Ihme, 187 Colo. 48, 51, 528 P.2d 380, 381-82 (1974).
Prior to the trial the defendant filed a motion requesting that the court hold a pretrial hearing to determine the admissibility of evidence of a prior incident involving the defendant and his former housemate Brett DeWeese. The parties agreed that the prosecution would not refer to the prior incident in its case in chief. During the prosecution’s case in chief, El Paso County Coroner David Bowerman testified that the bullet that killed John Berg entered the back of Berg’s neck to the right of the nape of his neck, traversed through his neck from back to front and right to left in a horizontal plane, and exited on the left side of Berg’s neck at the level of the shoulder. The coroner also testified that when the bullet was fired the muzzle of the gun was in contact with the surface of Berg’s skin.
*1322Melinda Deeringer gave her account of Berg’s death during the prosecution’s case in chief. Deeringer testified that the defendant entered the room and told Berg to get out of bed or he was going to kill him. Deeringer testified that the defendant then quickly walked around to the foot of Berg's side of the bed and pulled a gun from his jacket. Berg then reached for his gun, which was on the headboard of the bed. Deeringer testified that the defendant then reached for the hand in which Berg held his gun and put his gun in Berg’s neck. According to Deeringer, the defendant’s and Berg’s hands “just went together like this for a few minutes — not a few but a couple of seconds. And then all of a sudden boom. He shot Roger [Berg].”
The defendant’s account of Berg’s death contradicted Deeringer’s testimony. The defendant testified that when David Bowman kicked the bed in which Berg and Melinda Deeringer were sleeping, and told Berg to get up,1 Berg reached up and grabbed a gun from the headboard of the bed. He, the defendant, then grabbed Berg’s gun, drew his own gun, and told Berg to “chill out.” He then cocked his gun and told Berg to freeze. The defendant then testified that Berg “was pulling; I was kind of ducking, squatting at the same time — and he was pulling and turning and my gun fired.”
After he had cross-examined the defendant on other subjects, the district attorney asked the court for permission to cross-examine the defendant about the incident involving Brett DeWeese. The court held a hearing out of the jury’s presence, and ruled that evidence about the DeWeese incident was admissible. When the jury returned to the courtroom, the court instructed the members of the jury that the evidence they were about to hear was being admitted for the limited purpose of showing intent, absence of mistake or accident, and that they should not consider the evidence for any other purpose. The district attorney then cross-examined the defendant about the DeWeese incident in an attempt to discredit the defendant’s version of Berg’s death. The defendant testified on cross-examination that after coming home early one morning he discovered that someone had been in his bedroom. The defendant admitted that he then got his gun and went to DeWeese’s bedroom. The district attorney asked the defendant if he had awakened DeWeese by poking him in the ribs with his gun, and if he had pulled DeWeese’s arm over and put the gun up against DeWeese’s neck. The defendant answered that he had not.
In rebuttal, the prosecution called Brett DeWeese, who testified about the prior incident with the defendant. DeWeese testified that when he and the defendant were living in the same house, the defendant entered his room at about 3:00 one morning and woke him up by poking him in the ribs with his gun. DeWeese testified that the defendant then pulled his left arm outward, put the gun to his head just below his left ear, and asked him if he believed in God. After DeWeese’s rebuttal testimony, the district court again instructed the jury that the evidence it had just heard was being admitted for the limited purposes previously indicated by the court.
The evidence of the DeWeese incident was logically relevant, independent of the inference prohibited by CRE 404(b) that the defendant acted in conformity with his bad character. The DeWeese incident was admissible to show that the defendant drew his gun first,, that the defendant did not accidentally place this gun to Berg’s neck, and that the gun did not accidentally discharge. Courts have admitted evidence of similar acts, as rebuttal to the witness’s testimony or impeachment of his credibility, to show that the present act was not an accident. Young v. Rabideau, 821 F.2d 373, 380 (7th Cir.), cert. denied, 484 U.S. 915, 108 S.Ct. 263, 98 L.Ed.2d 221 (1987). In United States v. Hillsberg, 812 F.2d 328, 334 (7th Cir.), cert. denied, 481 U.S. 1041, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987), the Seventh Circuit held that the trial court properly admitted evidence that earlier in *1323the day on which he shot the victim, the defendant had taken his gun out and fired it into the air. The court held that the evidence that the defendant had earlier fired his gun was admissible to rebut the defendant’s claim that his gun discharged accidentally when the victim was shot. Id. Hillsberg is not distinguishable on the ground that the defendant did not fire his gun when he threatened DeWeese. Evidence of the DeWeese incident was properly admitted to show that the defendant was proficient in drawing his handgun, pulling an individual’s arm away from his body, and placing the gun on the individual’s neck. The DeWeese evidence was properly admitted to demonstrate that the defendant’s actions caused Berg’s death and were not accidental. Id.; see also Rabideau, 821 F.2d at 380 (evidence of an inmate’s prior misconduct admissible to rebut inmate’s assertion that he grabbed a chain out of a prison guard’s hand accidentally, or by reflex); Adkinson v. State, 611 P.2d 528, 532 & n. 11 (Alaska) (evidence that defendant had on previous occasions pointed his shotgun at trespassers was admissible to prove that the defendant did not accidentally point his shotgun at the victim), cert. denied, 449 U.S. 876, 101 S.Ct. 219, 66 L.Ed.2d 97 (1980).
Evidence of the DeWeese incident was also admissible to show that the defendant acted intentionally in entering the room with a gun, drawing his gun first, and forcibly placing it up against Berg’s neck.2 Evidence of other acts is admissible to establish specific intent when intent is an essential element of the crime charged and when the other requirements of Rules 404(b) and 403 are satisfied. Rabideau, 821 F.2d at 379. “The ‘intent’ exception to Rule 404(b) may also be used, in a broader sense, to admit prior crimes ‘because the repetition of the crime is itself circumstantial proof of intent, not direct proof of a propensity to commit crime.’ ” Id. (quoting United States v. Fountain, 768 F.2d 790, 805 (7th Cir.1985) (Swygert, J., concurring in part and dissenting in part), cert. denied, 475 U.S. 1124, 106 S.Ct. 1647, 90 L.Ed.2d 191 (1986)). In this case evidence of the DeWeese incident was admissible as circumstantial evidence that the defendant entered Berg’s bedroom with the intent to place his gun up against Berg’s neck and shoot him. Rabideau, 821 F.2d at 379-80; Hillsberg, 812 F.2d at 334 (evidence that earlier in the day the defendant fired his gun into the air “was germane in determining his state of mind at the time of the fatal shooting”); United States v. Tsinni-jinnie, 601 F.2d 1035, 1040 (9th Cir.1979) (evidence of prior altercation was admissible to show that defendant intentionally ran over the victim with a truck), cert, denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980); United States v. Brun-son, 549 F.2d 348, 361 (5th Cir.) (evidence that the defendant earlier helped third party rob a market admissible to rebut defendant’s claim of unknowing state of mind when third party robbed and murdered postmistress in his presence), cert, denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977). The fact that in the prior incident the defendant did not fire his gun bears on the weight of the evidence rather than its admissibility. The danger that the jury might misuse the evidence of the DeWeese incident was eliminated by the district court’s contemporaneous limiting instructions. See Callis v. People, 692 P.2d 1045, 1051 (Colo.1984); Stull v. People, 140 Colo. 278, 284-85, 344 P.2d 455, 461-62 (1959).
The remaining issue is whether the trial court should have excluded evidence of the DeWeese incident under CRE 403. “The thrust of Rule 403 favors admissibility,” People v. District Court, 785 P.2d 141, 146 (Colo.1990), “and Rule 403 requires that the *1324probative value of evidence in question be ‘substantially outweighed’ by the danger of unfair prejudice.” Id. “ ‘[T]he need for exclusion must be clear since exclusion is a drastic remedy and less restrictive measures, such as cautionary instructions to the jury, may suffice to reduce the danger of prejudice to an acceptable level.’ ” Id. (quoting J. Wigmore & P. Tillers, Wigmore on Evidence § 10A, at 680 (1983)). “Proffered evidence which calls for exclusion as unfairly prejudicial is given a more specialized meaning of an undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution or horror.” Id. The probative value of the district attorney’s cross-examination of the defendant about the DeWeese incident, and DeWeese’s rebuttal testimony, was not substantially outweighed by the danger of unfair prejudice. The evidence of the DeWeese incident was probative of a material fact, and rendered the defendant’s version of events less believable in a case which largely turned on the defendant’s and Deeringer’s credibility. Accord Adkinson, 611 P.2d at 532.
I dissent.
I am authorized to say that Chief Justice ROVIRA and Justice KIRSHBAUM join in this dissent.. The defendant testified that Bowman’s exact statement was: "You've got three seconds to put your pants on or we’ll put your pants on for you."
. The defendant disputed each of these claims. On direct examination the defendant testified that he initially intended to leave the gun in Bowman’s truck, but decided to carry it into the apartment so that "David [Bowman] couldn't get back to it in any way.” The defendant also testified that when he entered Deeringer’s bedroom he did not intend to harm anyone, and that he did not draw his gun until he saw Berg reaching for the gun on the headboard. Finally, the defendant testified that when he grabbed Berg’s arm he was trying to calm Berg down and defuse the situation, and his gun accidentally discharged as a result of his struggle with Berg.