Defendant, Larry White, appeals his conviction of aggravated robbery, and mandatory sentencing for the use of a deadly weapon. We affirm.
On July 15, 1980, a King Soopers Store located in Denver was robbed of approximately $26,000. The head clerk of the King Soopers Store, Robert Rivas, was robbed at gun point at approximately 6:00 a.m., as he was preparing to open the store’s safe.
On September 17, 1980, the same King Soopers Store was robbed of approximately $22,000. The head clerk at the time, Anthony Lobato, was robbed at gun point at approximately 6:30 a.m., as he was preparing to open the store. No arrests were made for these two robberies.
On March 15, 1981, the defendant was arrested at a King Soopers Store in Commerce City. At approximately 10:20 p.m., after he had locked up the King Soopers Store, Fidel Ortega, a security guard, noticed defendant as he was coming down from the loft in back of the produce room wearing a King Soopers apron. Ortega did not recognize dеfendant as an employee of the store, so he approached him in order to ascertain his identity. Defendant asserted that he was a new employee on the night crew. In order to verify his explanation, Ortega requested that defendant accompany him while he checked with the night crew foreman and head clerk. Ortega conducted a pat-down search, which revealed a loaded weapon in defendаnt’s waist band. Ortega then advised defendant of his Miranda rights, and turned him over to the custody of Officer James E. Newton, who again gave defendant Miranda warnings.
Defendant was charged with one count of aggravated robbery, and one count of mandatory sentencing for violent crime, on each of the incidents. Defendаnt pled not guilty to all of the charges, his motion for separate trials was granted.
The conviction at issue on this appeal concerns his сonviction, after a jury trial, of the September robbery of the Denver supermarket.
At trial, Ortega and Newton were permitted to testify regarding defendant’s arrest in Commerce City. Testimony was received regarding appearance, attire, and possession of a loaded weapon. Defendant *1320 objected to the history of the arrest evidence prior to its admission. However, there is no request for a contemporanеous limiting instruction in the record.
On the following day, defendant moved for a mistrial because of the lack of a contemporaneous limiting instruction. Thе motion for mistrial was denied by the trial court. However, the trial court did offer to give a cautionary instruction at that time. This offer was rejected by dеfendant.
Lobato and Rivas testified regarding the robberies in which they were involved. They testified to the perpetrator’s appearance, attire, and use of a gun in perpetrating the robberies. The trial court gave an instruction prior to Rivas’ testimony limiting its use to the sole purpose оf establishing identity and, sua sponte, related the instruction to the prior testimony of the officers. A limiting instruction regarding similar transaction evidence was also given to thе jury in the trial court’s final instructions.
On appeal, defendant contends that, in admitting the testimony pertaining to the July robbery and the Commerce City arrest, the trial court erred by not adhering to the procedural and substantive safeguards mandated by
Stull v. People,
An investigatory stop or limited search is justified on less than probable cause, if there is an articulable and specific basis in fact for suspecting that criminal activity has or is about to take place, the purpose of the intrusion is reasonable, and the scope and character of the intrusion is reasonably related to its purpose.
People v. Tate,
The evidence and testimony pertaining to the Commercе City arrest were offered by the prosecution as history of defendant’s arrest. If relevant, such evidence is admissible even though the arrest was madе for a transaction separate and unrelated to the crime for which the defendant is charged and being tried.
Davis v. People,
It is undisputed that the evidence concerning the Commerce City arrest is unrelated to the September robbery for which the defendant was being tried. And, although it was brought in as history of the arrest evidenсe, it involved the commission of a crime similar to the one charged, and perpetrated in a similar manner. As such, inherent in the evidence is the “damning innuendo likely to beget prejudice in the minds of jurors .... ” Stull v. People, supra.
It is fundamental to our system of criminal jurisprudence, that a defendant “be tried on the offense chаrged in the information and no other.”
Gill v. People,
The People argue, however, that even if Stull is applicable, defendant is *1321 precluded from raising this issue on appeal as a contemporaneous limiting instruction was not requested of the trial court. We agree.
Our supreme court has stated that where the
Stull
requirements are applicable, the better practice would be to require the trial court to issue a contemporaneous limiting instruction regardless of whеther it is requested.
People v. Scheldt,
Defendant’s final contention is that the trial court failed to comply with either the Stull procedural or the Honey substantive requirements in admitting Rivas’ testimony rеgarding the July robbery of the King Soopers Store as similar transaction evidence establishing identity.
Defendant contends that under Honey and CRE 404(b), Rivas’ testimony was not necessary to establish the dеfendant’s identity as the perpetrator of the September robbery. Defendant contends that Lo-bato’s testimony was competent to estаblish the defendant’s identity, thereby rendering Rivas’ testimony inadmissible. We disagree.
As in
Honey,
identity of the perpetrator was defendant’s primary defense. In addition, on сross-examination of Lobato, defense counsel sought to impeach his ability to identify the defendant as the perpetrator of the Seрtember robbery. Under these facts, the identity of the defendant was clearly in controversy, rendering Rivas’ testimony admissible for the purpose of estаblishing identity.
See People v. Honey, supra.
As such, we find no error on the part of the trial court in admitting Rivas’ similar transaction testimony.
See People v. Crespin,
Finally, defendant contends that the contemporaneous limiting instruction given by the trial court in regard to Rivas’ testimony was inadequate under Stull. This contention is without merit.
Judgment affirmed.