dissenting.
I am convinced that, given the offense charged and the evidence produced, the similar offenses that were described to the jury here were not relevant to any fact in issue. Hence, I am also convinced that the trial court committed prejudicial error in admitting this evidence. I therefore dissent from the majority’s affirmance of the judgment of conviction.
Defendant was charged with the crime of aggravated incest as defined in § 18-6-302(l)(e), C.R.S. (1986 Repl.Vol. 8B). As charged here, that crime consisted of knowingly inflicting sexual penetration upon his stepchild at a time when the stepchild was less than 21 years of age. Under the evidence, “sexual penetration,” as charged, consisted of sexual intercourse. See § 18-3-401(6), C.R.S. (1986 Repl.Vol. 8B).
Thus, unlike sexual crimes based upon “sexual contact” or “sexual intrusion,” both of which may require proof that such contract or intrusion was for the purpose of “sexual arousal, gratification, or abuse,” see § 18-3-401(4), C.R.S. (1993 Cum.Supp.); § 18-3-401(5), C.R.S. (1986 Repl.Vol. 8B); People v. West, 724 P.2d 623 (Colo.1986), the crime with which defendant was charged required no proof of any specific intent. Proof that defendant knowingly engaged in sexual intercourse with his stepdaughter was sufficient for a conviction.
Moreover, this case presented no contested issue as to the identity of the alleged perpetrator. The complaining witness was defendant’s stepdaughter, and she testified that the incident upon which the charge was based took place while she and defendant were living in the same residence.
The sole theory of the defense was that the incident did not occur. While defendant did not testify, this theory was presented to the jury through counsel’s attempted impeachment of the People’s witnesses, including the victim, and in closing argument.
The People initially offered the contested evidence for the purpose of proving both modus opemndi and motive. However, the trial court concluded that the only relevance of a particular modus opemndi is upon the issue of the identity of the perpetrator. Hence, because identity was not a legitimate issue here, the trial court concluded that similar incident evidence was not admissible for that purpose.
However, the court also concluded that, to the extent that the evidence might establish defendant’s motive, it was relevant upon the issue of defendant’s intent and would be admitted for that purpose. Thus, the question of defendant’s motive was the only purpose for the receipt of this evidence, and the limiting instruction given to the jurors informed them that it was “to bé considered only as it relates to motive.” This instruction was the only one referring to the question of “motive”; that term was nowhere defined in the instructions; and the jurors were never in*1331structed to consider this evidence upon the question of defendant’s intent or otherwise informed as to how defendant’s “motive” was to be considered by them with respect to any element of the crime with which he was charged.
Given the circumstances here, defendant’s “motive” in engaging in sexual intercourse with his stepdaughter was not only self-evident from the act itself, but under the statute defining aggravated incest, such motive was irrelevant. Irrespective of defendant’s intent or motive, if he knowingly engaged in the act of sexual intercourse with his underage stepdaughter, then he committed the crime of aggravated incest. Indeed, even if defendant harbored some bizarre intent or motive in engaging in such intercourse (which is in no way suggested by the evidence), he would still be guilty of this crime, so long as he was rationally aware of his actions.
It is certainly true that both § 16-10-301(1), C.R.S. (1993 Cum.Supp.) and CRE 404(b) authorize the receipt of similar offense evidence as tending to establish a defendant’s motive. However, a defendant’s motive does not always meet the test of relevancy set out in CRE 401. To be relevant under that rule, evidence must have a tendency “to make existence of any fact that is of consequence to the determination of the action more probable or less probable.... ” (emphasis supplied) Thus, it is only if the establishment of a defendant’s motive will make the existence of some other fact in issue (such as the identity of the perpetrator or the existence of the requisite specific intent) more or less probable that it is relevant in any case. See People v. Casper, 631 P.2d 1134 (Colo.App.1981); E. Imwinkelried, Uncharged Misconduct Evidence, § 3:15 — § 3:18; § 4:19 (1984).
I recognize that some earlier opinions by our supreme court have contained dicta to the effect that evidence of motive is always admissible. These opinions were issued, however, before the adoption of the Colorado Rules of Evidence and before the more recent decisions in People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979); People v. Spoto, 795 P.2d 1314 (1990); and People v. Garner, 806 P.2d 366 (Colo.1991).
Colorado’s adoption of the rules of evidence made at least some changes in the prior common law. Nevertheless, the supreme court has made clear that these rules have continued Colorado’s “restrictive policy” against admitting evidence of other offenses. People v. Garner, supra.
Moreover, both Honey and Spoto have emphasized the requirement that the proffered evidence must be both relevant to some contested issue and necessary to prove such issue. In Spoto, for example, our supreme court warned that:
To be admissible, the prosecution must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(h).
795 P.2d at 1319 (emphasis supplied).
And, in the previous opinion in Honey, Justice Rovira, writing for a unanimous court, said:
The evidence must be necessary to prove the material fact in issue for which it is offered.... If the defense has conceded the issue, or if it has been established by other competent evidence, evidence of the prior act is unnecessary and, as such, is inadmissible.
198 Colo, at 67, 596 P.2d at 754 (emphasis supplied).
Here, because the issue of identity was undisputed, the trial court concluded that the evidence of the prior incidents was inadmissible to establish a modus operandi. Yet, the very same analysis is even more persuasive in convincing me that the same evidence was not properly admissible to prove the existence of motive as relevant upon the question of defendant’s intent.
As noted, the People were not required to prove the existence of any specific intent. Further, defendant did not dispute that, if the incident occurred in the manner described by the complaining witness, the nature of the incident itself established the requisite “knowing” mental state. Hence, admission of this wholly irrelevant evidence was entirely unnecessary.
The sole issue presented for jury determination in this case was whether the incident *1332described by the complaining witness occurred. The only real purpose of establishing that similar incidents had occurred in the past was to have the jurors infer that, because defendant did it before, he also was guilty of the incident charged. Yet, such inference is, in my view, precisely the sort of inference that CRE 404(b) mandates to be improper. And, because of the significant impact that such evidence naturally has upon jurors, its receipt constituted prejudicial error.
For these reasons, I would reverse the judgment of conviction and remand the cause to the trial court for a new trial.