dissenting.
Because I see no abuse of discretion in the trial court's admission of evidence concerning defendant's prior sexual assault, I respectfully dissent from part I of the majority opinion and would affirm defendant's conviction.
The list of permissible purposes in CRE 404(b) for admission of other crimes evidence is not exhaustive. People v. Miller, 890 P.2d 84 (Colo.1995). There are numerous other uses to which evidence of criminal acts may be put, and those enumerated are neither mutually exelusive nor collectively exhaustive. See 1 McCormick on Evidence § 190 (J. Strong 4th ed.1992); 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 404.22[6] (J. McLaughlin 2d ed.1999).
One proper purpose for admitting other acts evidence is to show the context of a charged crime. United States v. Brewer, 1 F.3d 1430 (4th Cir.1993).
In United States v. Sarracino, 131 F.3d 943 (10th Cir.1997), the court analyzed whether context evidence relating to a defendant's admission of culpability was properly admitted pursuant to Fed.R.Evid. 404(b). Concluding that the trial court had not abused its discretion in admitting such evidence, the court reasoned:
Although we have been unable to find any cases applying the context principle to a once-removed situation like the one before us, we believe the reasons for admitting context evidence apply equally in this situation. A jury 'cannot be expected to make its decision in a void" United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980). The members of the jury had to determine what weight to give to [defendant's] admission, and to do so they had to know the *326cireumstances under which the admission was made. Consequently, because the evi-denee was offered to show context and not merely to show [defendant] had a tendency toward violence, the first part of the Rule 404(b) test [proper purpose] was satisfied.
United States v. Sarracino, supra, 131 F.3d at 949.
The parties argued the admissibility of the challenged evidence in light of the rule set out in Callis v. People, 692 P.2d 1045, 1051 (Colo.1984), which provides:
We thus hold that a trial court, in considering the admissibility of an accused's statement, must excise or delete any reference to prior eriminality that is not otherwise admissible under the narrow exceptions to the general rule of exclusion, unless such excision would significantly impair the meaning and evidentiary value of the admissible parts of the accused's statement. If the trial court rules that the reference to prior criminality qualifies for admission under applicable rules of relevancy or that the reference cannot be excised without impairing the meaning and evidentiary value of the other admissible parts of the statement, the court must then adbere to the procedural safeguards of Stull [v. People, 140 Colo. 278, 344 P.2d 455 (1959) ] by appropriately instructing the jury on the limited purpose for which such evidence is being received.
The evidence at issue here and its procedural history are as follows.
Here, after being released in October 1994 from serving the entirety of his prison sentence for sexually assaulting one of his nieces, defendant returned home to live with his parents. Also living in that home were defendant's brother and his wife, along with their three young children.
Because of defendant's criminal history, living arrangements were rigidly demarcated; defendant's brother and the brother's family lived in the basement and defendant and his parents lived upstairs. The children had been instructed by their parents and grandparents never to go upstairs and defendant had strict orders never to go to the basement. The children were never to be alone with defendant.
Defendant's brother and his family moved out of that home in late November 1994.
In mid-December 1994, defendant's brother's wife was told by her three-year-old daughter, the victim here, that "Uncle Joe [the defendant] hurt me." The child described graphically an incident of sexual assault she said had occurred in the basement when she was living in the same house as defendant. Her six-year-old brother confirmed, separately, essentially the same facts and related that he had seen the incident through the basement window.
The mother reported the incident to the police. The children's statements to authorities were essentially the same as the report they had given her.
According to the niece's testimony, in mid-March 1995, while watching television with his mother and his 18-year-old niece, defendant began screaming that, "I tried to f*** [the victim]." He also said he was going to rape the niece who was in the room at the time.
That niece later confronted defendant with the threat he had made during his outburst. Defendant denied having said that and told her, "I was talking about that other guy that raped you." She rejoined, "What other guy? No one else has ever raped me other than you." Defendant did not respond. In fact, defendant had sexually assaulted her when she was approximately four years old and had pled guilty to that offense.
The niece reported this conversation to the police and defendant admitted to a detective that he had sexually assaulted her several years earlier. He also admitted having told her that he had sexually assaulted the victim in this case.
A few days after defendant's confrontation with his niece, she was approached by the victim in this case. The victim confided to defendant's niece how defendant had sexually assaulted her. During this conversation, the victim asked: "Did Uncle Joe hurt you too?" The niece said, "Yes," and the victim then stated: "It's seary, huh?" The niece agreed.
*327Procedurally, the issue of admission of these statements was somewhat convoluted.
The day before trial, defense counsel moved to redact from defendant's statements to the detective all references to his prior criminality. In response, the prosecutor moved to admit the statements regarding the prior sexual assault on the niece pursuant to CRE 404(b) and res gestae.
The trial court partially granted defendant's motion and redacted all references to defendant's prison incarceration, all references to defendant's prior sexual assault on the niece's sister, and all references to his alleged prior sexual assault of his sister. However, the court determined the references to the prior sexual assault on his niece would be admitted.
The trial court analyzed the evidence in light of the principles set out in People v. Garner, 806 P.2d 366 (Colo.1991), and found:
It begins at the very beginning, with [defendant] being released from prison and the arrangements being made that ... the children would not be alone with him.... That whole arrangement cannot fully, in the Court's opinion, be understood by the jury without them understanding why it is that the arrangements were made.
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Once the allegation is made, then a number of statements involve the Defendant's prior contact with [his niece] ...: [she] moving out and then moving in again with [the victim's parents], who were her aunt and uncle, and [the victim] then, because [the niece] was in the house, having the opportunity to speak with her and bringing her in her bedroom and talking with her, including statements of the Defendant allegedly hurting [the niece] also. The explanation by the children's mother that, either in detail about what happened, as she told the detective, or as she testified, that the Defendant hurt his cousins and they should stay away from him is also evidence which is part of this case and involves the prior assault on [the niece].
The court determined that this was proper context evidence, particularly in light of defendant's theory that the alleged victim and her brother were so sexually sophisticated as to be eapable of concocting their stories.
A trial court has substantial discretion when determining the admissibility of evidence of other acts. People v. Vialpando, 954 P.2d 617 (Colo.App.1997). Onee a trial court has ruled that such evidence may be admitted, we must afford it the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. People v. Gibbens, 905 P.2d 604 (Colo.1995). Thus, we may overturn this evidentiary ruling only if we find it to be manifestly arbitrary, unreasonable, or unfair. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).
I cannot say the trial court abused its discretion in admitting the evidence. Its detailed and thorough findings are completely supported by the record. The context purpose was proper in light of the unique facts and cireumstances here, including the relationships among the parties, their living conditions and motives, and defendant's theory of defense. Unless the fact of defendant's prior sexual assault on his niece were known, the jury would have no framework within which to evaluate either defendant's or the victim's statements to her.
Under the unusual living arrangements of defendant's family, testimony that he was in the basement with the victim was highly significant. However, that significance is apparent only if the reason for those arrangements is known. If the jurors had not received testimony about defendant's eriminal history, they would have been placed in the impossible position of determining guilt or innocence by reference to unrelated snippets of information having no contextual meaning.
Hence, evidence was highly relevant and probative and was not so prejudicial as to inject extraneous considerations such as bias, sympathy, anger, or shock into the proceedings. People v. Gibbens, supra. And, the trial court correctly instructed the jury as to its limited purpose each time the evidence was mentioned and again in the final instructions.
*328Therefore, I would find no abuse of disceretion and would affirm the defendant's convietion.