concurring in part and dissenting in part.
While I concur in the majority opinion as to the voir dire issue and the constitutionality of § 18-8-401(8.5), C.R.S.2000, as applied, I disagree with the majority on the admission of the prior similar act evidence pursuant to CRE 404(b) and § 16-10-3801, C.R.98.2000.
Evidence of other acts is not admissible to prove the character of the accused in order to show that he or she acted in conformity with that character on a particular occasion. *1185This prohibition derives from the basic criminal law precept that a person may not be convicted of a crime by proof that he or she is guilty of another, and it has its genesis in the due process right to a fundamentally fair trial. See CRE 404(b); People v. McKibben, 862 P.2d 991 (Colo.App.1993).
In cases involving sexual assault of a child, evidence of prior similar acts by a defendant may be admissible pursuant to § 16-10-3801, ©.R.9$.2000, and CRE 404(b) when offered for certain limited purposes.
Section 16-10-801(8), C.R.S.2000, provides as follows:
The prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity, including: refuting defenses, such as consent or recent fabrication; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; showing motive, opportunity, intent, preparation, including grooming of a victim, knowledge, identity, or absence of mistake or accident; or for any other matter for which it is relevant....
CRE 404(b) provides as follows:
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.
Thus, the rule and the statute are permissive, that is, they permit the introduction of evidence that might otherwise be prohibited by the due process clause, with some limitations and conditions.
If the prosecution intends to introduce pri- or similar transaction evidence pursuant to § 16-10-3801, it must advise the court and the defendant in advance of trial of the purposes for which the evidence is offered. Additionally, the trial court must determine whether the prior similar transaction(s) occurred by a preponderance of the evidence, whether the purpose for which the evidence is offered are proper, and whether the prosecution has established a prima facie case against the defendant for the charged offense. See generally § 16-10-801.
Prior similar transaction evidence under CRE 404(b) also must satisfy the four requirements set forth in People v. Spoto, 795 P.2d 1314 (Colo.1990). First, the court must determine whether the proffered evidence relates to a material fact. Second, the court must determine whether the evidence is logically relevant, that is, whether it tends to make the existence of a material fact more probable or less probable than it would be without the evidence. See CRE 401; People v. Quintana, 882 P.2d 1366 (Colo.1994). Third, the court must determine that the logical relevance of the evidence is independent of any intermediate inference prohibited by CRE 404(b), i.e., that the defendant has a bad character and probably committed the crime charged because he likely acted in conformity with his bad character. Finally, the court must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the defendant. See People v. Snyder, 874 P.2d 1076 (Colo.1994); People v. Spoto, supra.
In this case, the prosecution sought to introduce the testimony of four adult males who had been victims of sexual assault by the defendant during their childhood. At the pretrial hearing, the prosecution stated, in addition, an intention to use this testimony to refute the anticipated defense that the victim made up the incident, and to rebut the anticipated claim of recent fabrication. The prosecution also stated that it intended to use the testimony to show modus operandi, motive, opportunity, intent, preparation, and absence of mistake or accident. Suffice it to say, the prosecution's intent was to offer the evidence for any reason it could conceivably be admitted under the rule or statute.
The trial court found that the prosecution had sufficiently proved that the defendant had sexual contact with each of the four men when they were children. The trial court further concluded that, due to the remote*1186ness in time of the prior similar acts, the prosecution would be prohibited from introducing the testimony to show a common plan, scheme, motive, modus operandi, or preparation. However, the trial court found that the testimony was relevant to refute the anticipated defense of recent fabrication and to show intent and/or absence of mistake or accident. The trial court further concluded that the testimony was logically relevant to the material question of fact concerning whether sexual contact had actually occurred between defendant and the victim, and that this logical relevance existed independent of any inference of propensity.
At trial, the court found that the prosecution had established a prima facie case and allowed the introduction of the testimony into evidence. Three of the four men testified at trial. The trial court then instructed the jury to consider the evidence only for the limited purposes of refuting the defense of recent fabrication and to establish intent and/or absence of mistake or accident.
At both the pretrial hearing and at trial the defendant objected to the introduction of this evidence, stating that it was irrelevant to his theory of the case, which was that the event did not occur and the victim was lying.
On appeal, the defendant argues that the prior similar transaction evidence failed the third Spoto prong, in that it was not logically relevant independent of an intermediate inference prohibited by CRE 404(b). In a related argument, defendant asserts that the prosecution failed to articulate a "precise evi-dentiary hypothesis" from which a material fact can be permissibly inferred from the proffered testimony pursuant to Spoto, and that the trial court improperly assumed the prosecution's burden of articulating a theory upon which the testimony was to be introduced.
A trial court has substantial discretion in deciding questions concerning the admissibility of evidence. Consequently, absent the showing of an abuse of discretion, the trial court's ruling will be affirmed. See People v. Janes, 942 P.2d 1331 (Colo.App.1997).
The probability that sexual contact occurred between defendant and the victim may indeed be increased by the testimony that the defendant had sexually assaulted the three other young men when they were children. That increased probability is not, however, independent of the prohibited inference.
I disagree with the majority regarding the applicability of this evidence to a claim of recent fabrication, accident, or mistake. At trial, the defense did not argue that the defendant was acting under any mistaken belief or by accident. See People v. Fulton, 754 P2d 398 (Colo.App.1987); People v. Jackson, 748 P.2d 1326 (Colo.App.1987) (the absence of mistake or accident exception to CRE 404(b) concerns the defendant's mistake or accident, not the victim's).
Moreover, recent fabrication was not an issue at trial. Claims of recent fabrication generally arise when there is a delay in reporting the incident or a change in the testimony coupled with an intervening motive. See People v. Eppens, 979 P.2d 14 (Colo.1999). Such a seenario did not cecur here. Rather, the victim immediately reported the incident while still in the presence of the defendant, and his version of the event did not change.
Additionally, since the defendant wholly denied the event, he did not place his intent at issue. I acknowledge that mens rea is an element of the offense, here, "knowingly," and the prosecution is required to prove it. Section 18-8-405, C.R.8.2000. However, evidence of a person's past mental state is of extremely marginal relevance in determining that person's present mental state, and has no logical relevance independent of the prohibited inference. In addition, the evidence is highly prejudicial.
Stripped of the niceties, the testimony was introduced to rebut the defendant's claim that the incident did not happen and that the victim was lying, the theory of the defense. While introduction of the testimony may be permissible to rebut this theory under the catch-all provision in § 16-10-301(8), which provides for the admission of evidence of other acts "for any other matter for which it is relevant," the prosecution failed to state, and I cannot imagine, exactly how this testimony was logically relevant to that issue *1187independent from any prohibited inference, as required by People v. Spoto, supra.
This testimony was offered simply to prove that, since defendant had similarly sexually assaulted three young boys in the past, he sexually assaulted the victim. In my view, the trial court abused its discretion in permitting this testimony and I would reverse and remand for a new trial.