People v. Malcolm.
2025 COA 95. No. 23CA1793. CRE 404(b)—Evidence of Other Crimes, Wrongs, Acts—Prejudice.
December 24, 2025
Malcolm called 911 to report that her 6-year-old son (the child) was nonresponsive and struggling to breathe. Malcolm stated that the child had been sneaking food and was sent outside and that she didn’t know what happened to him outside. At the hospital, he was diagnosed with a permanent brain injury, a skull fracture, a neck ligament injury, and widespread retinal hemorrhages. His thighs were bruised, and his penis was bruised and abraded. The doctors concluded that his most serious injuries were caused by nonaccidental trauma, or child abuse, but there was no direct evidence of how the child had been injured. As a result of the brain injury, the child cannot talk or move independently and requires assistance with all aspects of his life. Malcolm was charged with child abuse, and the prosecution filed a pretrial notice of its intent to introduce evidence of other acts of child abuse described by Malcolm’s other children, 10-year-old A.M. and 10-year-old C.M., in their forensic interviews. As detailed in the notice, A.M. and C.M. said that Malcolm had punished the child for sneaking food and other behaviors, had used corporal punishment on the children, and had made the children sit in or rub themselves on a snowbank if they had toileting accidents. The district court allowed the prosecution to introduce the other acts that A.M. and C.M. described, ruling that those acts could be used to show Malcolm’s motive for abusing the child and the absence of accidental injury. The court concluded that the evidence was logically relevant to those purposes, independent of any character reference, and while the evidence was prejudicial, the prejudice was not unfair because Malcolm’s explanation for the child’s injuries did not comport with the prior bad acts. The district court gave a limiting instruction at four points during trial. Malcolm was convicted of knowing or reckless child abuse resulting in serious bodily injury.
On appeal, Malcolm argued that the district court erroneously admitted evidence of her other alleged acts of child abuse and mistreatment of her children in violation of CRE 404(b). She maintained that because of dissimilarities between the prior acts and the charged act, the prior acts were not logically relevant to motive or lack of accident without a prohibited inference of her bad character. Other act evidence under CRE 404(b) must satisfy the test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), which allows admissibility only if such evidence is logically relevant to a material fact independent of the prohibited inference of the defendant’s bad character, and its probative value is not substantially outweighed by the risk of unfair prejudice. The district court admitted the other act evidence to show Malcolm’s motive and a lack of accident, but most of the other acts A.M. and C.M. described had nothing to do with sneaking food; all but two of the other acts were inadmissible to show motive, and all were inadmissible to show lack of accident. And to the extent the described acts merely showed a disciplinary motive more generally, that relevance depended on the inference that because Malcolm had harshly disciplined her children in the past, she was an abusive parent who likely got angry and abused her child again. Therefore, the prior acts were not admissible to show that Malcolm caused the child’s injuries because the prosecution failed to establish any similarity between those other acts and what occurred here. Accordingly, the district court abused its discretion by admitting the other act evidence. And because the other act evidence was highly prejudicial and central to the prosecution’s case, the erroneous admission of that evidence was not harmless.
The judgment of conviction was reversed and the case was remanded for a new trial.