2014 COA 130
Colo. Ct. App.2014Background
- Defendant Mark Steven Brown was convicted on two counts each of stalking, invasion of privacy, and unlawful sexual contact; he appeals the judgment and this court reverses and remands for a new trial.
- Brown installed motion-activated cameras in the housesitter’s bedroom and living room without her knowledge while she housesat for six months.
- Approximately 1500 short recordings were made over less than two weeks; some recordings captured the housesitter with her boyfriend.
- The housesitter discovered the cameras and reported to police; the recordings became central to the case.
- The trial court admitted uncharged misconduct evidence involving a separate sexual encounter; the court later determined this was error under CRE 404(b).
- The court also addressed the admissibility of expert testimony from a sex-offense evaluation psychologist and issues of evidentiary sufficiency and stalking liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of uncharged misconduct under CRE 404(b) and Spoto | Brown—unrelated act evidence relevant to intent/absence of mistake | Brown—probative value outweighed by unfair prejudice | Abuse of discretion; admission reversed as prejudicial and not harmless |
| Exclusion of psychologist testimony on voyeurism | Prosecution sought expert testimony to rebut lack of voyeurism | Evidence irrelevant or improper expert opinion | Abuse of discretion; error reversible on retrial |
| Sufficiency of evidence for invasion of privacy and unlawful sexual contact | Camera setup knowingly captured intimate parts for sexual gratification | Insufficient identification of intent/knowingly captured images | Evidence sufficient to support convictions on invasions of privacy and unlawful sexual contact |
| Stalking—surveillance standard under 18-3-602(1)(c) | Cameras constituted close watch/continuous observation | No surveillance because not accessed while out of country | Surveillance established; convictions related to stalking supported by record |
Key Cases Cited
- People v. Rath, 44 P.3d 1033 (Colo. 2002) (abuse-of-discretion standard for evidentiary rulings; four-part Spoto test applied)
- Yusem v. People, 210 P.3d 458 (Colo. 2009) (harmless-error standard for CRE 404(b) errors)
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part test for admissibility of other-acts evidence (Spoto test))
- People v. Cousins, 181 P.3d 365 (Colo. App. 2007) (CRE 404(b) application and balancing of probative value vs. prejudice)
- United States v. Rogers, 587 F.3d 816 (7th Cir. 2009) (illustrates handling of prejudicial other-acts evidence)