dissenting.
In People v. Arrington, 682 P.2d 490 (Colo.App.1984), another division of this court concluded that the doctrine of collateral estoppel precluded the prosecution from introducing evidence of a prior armed robbery for which defendant was acquitted. The Arrington court reached this conclusion under both the state criminal law and the federal constitution because the issues in each case were the same, namely, identity of the armed robber. I would follow Arrington in this case, and thus, I respectfully dissent.
Here, the dispositive issue in the prior prosecution is the same as that here, i.e., whether each of the asserted victims engaged in consensual sex with the defendant. In the first case, the jury necessarily resolved the issue in defendant’s favor. Hence, retrying the issue in that case has no relevance to deciding the issue in this one.
Contrary to the majority’s conclusion, I do not believe that either Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) or People v. Conley, 804 P.2d 240 (Colo.App.1990) support the trial court’s ruling here. In each of those cases, the court noted that the burden of proof in the prior criminal case (beyond a reasonable doubt) was different than the prosecution’s burden under CRE 404(b) to introduce similar transactions (preponderance of the evidence). However, neither court based its holding strictly on the difference in the burdens of persuasion. Had either court opted to do so, it would have been unnecessary to address further whether the issues in each of the two incidents were identical. In each, the issues were not the same and thus each court held the evidence admissible. Finally, Dowling addressed only the double jeopardy clause and due process concerns under the United States Constitution.
I believe that Arrington was properly decided for a number of reasons.
As the Supreme Court recognized in Dowling v. U.S., supra, 493 U.S. at 352, 110 S.Ct. at 674, 107 L.Ed.2d at 720: “[I]ntroduction of evidence in circumstances like those involved here has the potential to prejudice the jury or unfairly force the defendant to spend time and money relitigating matters considered at the first trial.” That is precisely what occurred here.
It is also apparent that the use of this type of evidence creates what in my view should be an unacceptable risk that the jury will convict the defendant on the basis of inferences drawn from conduct that a previous jury has concluded was not criminal.
Finally, and most important, admission of this evidence here contravenes a fundamental precept of the criminal justice system which holds that the prosecution may not force a person acquitted in one trial to defend against the same accusation in a second.
For these reasons, I would reverse the judgment of conviction and remand the case for a new trial.