People v. Malcolm

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 24, 2025

2025COA95

No. 23CA1793, People v. Malcolm — Evidence — Character
Evidence — Other Crimes, Wrongs, Acts

A division of the court of appeals addresses the admissibility of

prior alleged acts of child abuse and mistreatment under CRE

404(b) to prove that the defendant committed an act of child abuse

for which the mechanism of injury was unknown. The division

holds that the prior acts in this case were not admissible to show

that the defendant caused the child’s injuries because the

prosecution failed to establish any similarity, in nature or severity,

between those other acts and what occurred in this case.

The division also concludes that the erroneous admission of

this evidence was not harmless where the evidence played a

significant role in the prosecution’s case, the evidence was
especially prejudicial due to the nature of the other acts, and there

was no direct evidence of what happened to the child in this case.
COLORADO COURT OF APPEALS 2025COA95

Court of Appeals No. 23CA1793
Montezuma County District Court No. 22CR43
Honorable Todd Jay Plewe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Garland Kay Malcolm,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE SCHOCK
Harris and Johnson, JJ., concur

Announced December 24, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Garland Kay Malcolm, appeals her conviction for

knowing or reckless child abuse resulting in serious bodily injury.

Because we conclude that the district court erred by admitting

evidence of other alleged acts of child abuse under CRE 404(b) and

that this error was not harmless, we reverse the conviction and

remand for a new trial.

I. Background

¶2 On an early winter morning, Malcolm called 911 to report that

her six-year-old son (the child) was nonresponsive and struggling to

breathe. She explained that she had been “dealing with” the child

that morning because “he doesn’t want to sleep right now” and had

been getting up and sneaking food. She said she told him to “go

outside for a minute,” and when he stepped outside, he “went limp.”

She suggested that he may have hit his head on a snowbank or ice.

¶3 The child was taken to the hospital, where he was diagnosed

with a permanent brain injury, a skull fracture, a neck ligament

injury, and widespread retinal hemorrhages. He also had bruising

on his right thigh, a loop-shaped bruise on his left thigh (consistent

with having been inflicted by a belt or cord), and bruising and

abrasions on his penis. The doctors who treated the child

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concluded that his most serious injuries were caused by

nonaccidental trauma, or child abuse. But there was no direct

evidence of what had happened or 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.

¶4 Malcolm maintained that she did not know what happened.

She and her husband had recently installed three security cameras

inside the home because the child had been waking up at night and

eating. On the morning in question, the husband left for work at

5 a.m. About twenty minutes later, the cameras showed Malcolm

entering the kitchen and the child getting out of bed. At 5:40 a.m.,

Malcolm spoke with her husband by phone and told him that she

would check on the child and had called him down from his room.

And at 6 a.m., Malcolm called her husband back and told him the

child was nonresponsive. She called 911 two minutes later.

¶5 Before trial, the prosecution filed a notice of its intent to

introduce evidence of other acts of child abuse described by two of

Malcolm’s other children — ten-year-old A.M. and ten-year-old C.M.

— in their forensic interviews. As detailed in the notice, the other

children said that Malcolm had (1) punished the child for sneaking

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food, defecating on himself, and “various other infractions”;

(2) spanked the children with an open hand, a belt, and, in one

instance, a brush; (3) hit the children in the face, once giving A.M. a

bloody nose; (4) strapped the child and his three-year-old sibling

into bed to prevent them from getting food overnight; (5) made the

other children spit in the child’s peanut butter sandwich after he

ate peanut butter out of the jar; and (6) made the children sit in or

rub themselves on a snowbank if they had toileting accidents.

¶6 The prosecution argued that the evidence was relevant for two

permissible purposes: (1) to show Malcolm’s motive for the alleged

abuse — namely, to punish the child for sneaking food during the

night; and (2) to show that the child’s injuries were not accidental.

Defense counsel objected on several grounds, including that the

prosecution had failed to adequately explain how the proffered other

acts were relevant to the stated purposes. In particular, defense

counsel argued that the prosecution had not articulated any similar

motive and that the prior alleged acts fell far short of the “extreme

violence” and severe injuries alleged to have occurred in this case.

¶7 The district court issued a written order allowing the

prosecution to introduce the other acts described by A.M. and C.M.

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in their interviews. As relevant here, the court ruled that those acts

could be used to show Malcolm’s motive for abusing the child and

the absence of accidental injury. It concluded that the evidence

was logically relevant to those purposes, independent of any

character reference, and that although the evidence was prejudicial,

the prejudice was not unfair because “[Malcolm’s] explanation for

the injuries of [the child] does not comport with” the prior bad acts.

¶8 The prosecution introduced the forensic interviews of A.M. and

C.M. at trial.1 In addition, A.M. or C.M. testified that Malcolm

(1) forced the child to stand outside in the winter in his t-

shirt and pajamas while Malcolm was in the shower;

(2) spanked all the children on the “bare butt” with her hand

and a belt;

(3) once hit C.M.’s penis with a belt after he accidentally

touched his penis to Malcolm’s face while she was

spanking him;

(4) made the children take a cold shower when they got in

trouble, including for toileting accidents;

1 Contrary to the People’s assertion, videos of the forensic interviews

were included in the record on appeal as exhibits.

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(5) spit in the child’s peanut butter sandwich, along with the

other children, after the child had accidentally spit in the

peanut butter; and

(6) repeatedly slammed the child and his three-year-old

sibling into a snowbank.

¶9 The district court gave a limiting instruction at four points

during trial — when C.M. testified, when A.M. testified, when the

videos of the forensic interviews were played, and in the final jury

instructions. The instruction told the jury that it could consider

evidence of “other alleged acts of child abuse” only for the limited

purposes of “deciding whether [Malcolm] had a motive to commit

the acts charged” and “the absence of accident.” It also explained

that the jury could not consider the evidence “as proof that the

defendant has a bad character or any propensity to commit crimes.”

¶ 10 The jury found Malcolm guilty of knowing or reckless child

abuse resulting in serious bodily injury.

II. Other Alleged Acts of Child Abuse

¶ 11 Malcolm argues that the district court erred by admitting

evidence of her other alleged acts of child abuse and mistreatment

of her children in violation of CRE 404(b). She contends that, given

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the dissimilarities between the prior acts and the charged act, the

prior acts were not logically relevant to motive or lack of accident

absent a prohibited inference of her bad character. We agree.

A. Standard of Review and Applicable Law

¶ 12 We review the district court’s admission of other act evidence

under CRE 404(b) for an abuse of discretion. People v. Owens,

2024 CO 10, ¶ 105. A district court abuses its discretion “when its

ruling is manifestly arbitrary, unreasonable, [or] unfair,” or when it

is “based on an incorrect understanding of the law.” Id.

¶ 13 Evidence of other crimes, wrongs, or acts is not admissible “to

prove a person’s character in order to show that on a particular

occasion the person acted in conformity with the character.” CRE

404(b)(1). Such evidence may be admissible for another purpose,

including proving motive or lack of accident. CRE 404(b)(2); see

People v. Rojas, 2022 CO 8, ¶ 28 (“[C]ourts can admit uncharged

misconduct evidence for almost any non-propensity purpose.”).

¶ 14 But to be admissible, other act evidence must satisfy the four-

part test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo.

1990). Such evidence is admissible only if it is (1) logically relevant

(2) to a material fact (3) independent of the prohibited inference of

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the defendant’s bad character, and (4) its probative value is not

substantially outweighed by the risk of unfair prejudice. Id.

¶ 15 The admissibility of such evidence is “contingent upon the

articulation of a precise evidential hypothesis by which a material

fact can be permissibly inferred,” independent of the prohibited

character inference. People v. Williams, 2020 CO 78, ¶ 12. The

prosecution cannot meet this burden simply by reciting a proper

purpose and incanting the assurance that it does not seek to prove

character. Id. Instead, the prosecution must go further and explain

precisely how the evidence threads that needle. See id. at ¶ 13. In

other words, the prosecution must explicitly connect the dots from

the other act to the stated permissible purpose, with no step in that

analysis premised on an inference as to the defendant’s character.

B. Motive

¶ 16 The first purpose for which the district court admitted the

other act evidence was to show Malcolm’s motive. Although the

district court did not specify how the evidence related to motive, the

People argue that it showed that Malcolm “strictly controlled [the

child’s] access to food and had harshly disciplined him for sneaking

it, which demonstrated a motive for abusing him.” The theory

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seems to be that because Malcolm had previously punished the

child for sneaking food, that is probably what she did that morning.

¶ 17 The problem with this theory of relevance is that most of the

other acts described by A.M. and C.M. had nothing to do with

sneaking food. For example, many of the acts the children

described — the cold showers, the sitting in and rubbing on the

snowbank, and some instances of spanking — were tied to toileting

accidents. Others were tied to “getting in trouble” more generally,

including for “not listening” and “not doing our schoolwork.” Even

the one prior act involving food — the spitting in the sandwich —

was not described as a punishment for sneaking food but for getting

the child’s “spit” in the peanut butter jar by eating directly out of it.

¶ 18 Without a tie between the prior acts of abuse and sneaking

food, those acts had no logical relevance to the prosecution’s theory

that Malcolm abused the child for sneaking food. And to the extent

they 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. Such a

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propensity inference is “precisely the inference that CRE 404(b)

expressly prohibits.” People v. Harris, 2015 COA 53, ¶ 25.

¶ 19 We have identified only two categories of other act evidence

that related to sneaking food — (1) A.M.’s statement in his interview

(but not at trial) that Malcolm strapped the child and another child

into their beds to prevent them from sneaking food; and (2) the

children’s statements in their interviews (but not at trial) that one

reason the child was spanked was for sneaking food. Even these

acts present some concerns. The first did not involve punishing the

child for sneaking food but preventing him from doing so. The

second was general, with no apparent tie to the severe injuries that

Malcolm allegedly caused in this case. And there was ample other

evidence that Malcolm was upset by the child sneaking food.2 See

Williams, ¶ 14 (noting that the district court must “consider the

2 Nothing in our opinion prevents the prosecution from introducing

other evidence that Malcolm sought to control the child’s access to
food or was upset by the child sneaking food during the night. For
example, Malcolm’s husband testified that he had recently installed
security cameras in the home specifically to prevent the child from
eating during the night, and Malcolm told the 911 dispatcher that
she and her husband had put all food out of the child’s reach the
night before because the child “likes to get up and sneak food.”

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extent to which the proffered other-crime evidence adds logical force

. . . to the existing body of evidence proving the same material fact”).

¶ 20 Nevertheless, we conclude that the district court could

reasonably determine that Malcolm’s acts of physically punishing or

restraining the child for sneaking food were logically relevant to

Malcolm’s motive, independent of a prohibited character inference.

Cf. People v. Weeks, 2015 COA 77, ¶ 30 (holding that prior acts of

the defendant becoming “physically abusive when the child or pets

urinated in the house” were admissible to show he injured the

victim after she urinated in her bed). We therefore conclude that

the district court did not abuse its discretion by admitting evidence

of these two acts. But because we conclude that the district court

reversibly erred by admitting evidence of the other acts, the district

court may reconsider at any retrial whether the probative value of

these two acts is substantially outweighed by the risk of unfair

prejudice in light of this opinion and the other evidence in the case.

C. Lack of Accident

¶ 21 The second purpose for which the district court admitted the

other act evidence was to show a lack of accident. The People argue

10
that Malcolm’s prior acts of abuse made it more likely that the

child’s injuries were caused by abuse and not by an accidental fall.

¶ 22 We first note that this is not a typical “lack of accident” case.

Normally, a lack of accident concerns the defendant’s mens rea —

that is, whether the defendant acted accidentally, as opposed to

with the requisite mens rea. See People v. Casias, 2012 COA 117,

¶ 51. The issue in this case was not whether Malcolm acted

accidentally but whether she acted at all. See Weeks, ¶ 29

(addressing the use of other act evidence to prove the actus reus).

¶ 23 Prior similar acts may be relevant to rebut a defendant’s claim

that a victim was injured accidentally and show that the defendant

caused the injury instead. Id. at ¶ 26. But to be admissible for this

purpose, the other acts must be “roughly similar” to the charged

crime and sufficiently numerous to be probative of this issue. Id. at

¶¶ 29-30; see also Casias, ¶¶ 47-49, 51 (holding that prior acts of

child abuse were not admissible to prove absence of mistake given

the “dissimilarities between the prior acts . . . and the alleged acts”).

¶ 24 The People attempt to confine Casias and its emphasis on the

degree of similarity to the doctrine of chances theory at issue in that

case. See Casias, ¶¶ 36-40. But although the People do not frame

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their argument as one under the doctrine of chances, their theory is

essentially that because Malcolm had abused her children in the

past, she likely did so again. See Weeks, ¶¶ 25-27 (analyzing such

a claim under the doctrine of chances rubric). Whatever label the

People might place on this theory, it depends on there being some

similarity between the prior acts and the charged one. See

Williams, ¶ 22 (noting that “commission of the corpus delicti” may

be shown by “prior similar behavior of the accused” (emphasis

added)); People v. Jones, 2013 CO 59, ¶¶ 23-27 (holding that prior

acts satisfied Spoto test in light of similarities to charged sexual

assault, without applying doctrine of chances); cf. Yusem v. People,

210 P.3d 458, 467 (Colo. 2009) (holding that, although CRE 404(b)

does not always require similarity, “the lack of similarity” supported

the conclusion that the prior act evidence was not relevant

“independent of the inference that [the defendant was] a bully”).

¶ 25 Like in Casias, the other acts admitted at trial “bear no

resemblance” to the act Malcolm was charged with committing in

this case. Casias, ¶ 47. Of course, we do not know what happened

in this case, and the prosecution presented no theory other than

that Malcolm caused the injuries. But we know enough to know

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that several of the prior acts — spitting in the child’s sandwich,

strapping two of the children into their beds, making the children

take a cold shower, and making the children rub themselves on a

snowbank — have nothing to do with what happened here. Those

acts — none of which involved physical injury — could show only

that Malcolm was a bad parent who mistreated her children.

¶ 26 Moreover, we know that whatever happened, it resulted in

serious injuries that left the child permanently disabled. None of

the other acts of physical abuse described by A.M. and C.M. came

anywhere close to that. See id. at ¶ 48 (holding that prior acts were

not admissible where “the results of the events were different,” in

that the victim “did not suffer severe injuries as a result”); Harris,

¶ 22 (holding that prior act in which “[n]o child was injured” was

inadmissible in case involving child abuse resulting in death). The

most severe injury that either child described was A.M.’s bloody

nose, and both A.M. and C.M. testified that they never noticed any

bruises on themselves or their siblings — much less any injuries

approaching the severe head injuries the child suffered in this case.

¶ 27 As a practical matter, it may be true that any past instance of

child abuse makes it more likely that the defendant abused a child

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on a different occasion. Casias, ¶ 45. But that is precisely the

reason for CRE 404(b) — without some tie between the prior acts

and the charged one, the logical relevance depends entirely on the

impermissible inference that the defendant has a propensity to

abuse children. Id. Absent that impermissible inference, the fact

that Malcolm spanked her children and engaged in other forms of

abuse not causing injury does not make it more probable that she

knowingly or recklessly did something so serious as to cause the

child’s severe injuries in this case. Cf. id. at ¶ 43 (holding that the

defendant’s prior acts had no tendency to prove that he knowingly

caused the victim’s death “for the simple reason that [the]

defendant’s past acts did not result in serious injury or death”).

¶ 28 The People point to the testimony that Malcolm made the child

stand outside in the winter in his pajamas and “slammed” him into

a snowbank, implicitly attempting to draw a parallel between those

acts and what happened here. But the prosecution did not attempt

to draw any such parallels in the district court. See Williams, ¶ 12

(requiring the prosecution to articulate “the precise evidential

hypothesis upon which admissibility hinges”). Indeed, the Rule

404(b) notice described the snowbank punishment only as making

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the children “sit in or be rubbed on a snowbank to clean themselves

off if they had toileting accidents.” It was not until trial that A.M.

described it as physically abusive. And no one suggested that the

child’s injuries were caused by him simply standing outside in the

cold. Thus, on this record, there was no basis for a conclusion that

the prior acts were similar to the charged abuse in this case.

¶ 29 The People also assert that the prior instances of spanking

could have been relevant to prove that Malcolm caused the child’s

bruising and penis injuries.3 But Malcolm was not charged with

causing these other injuries, none of which were “serious bodily

injury” and none of which (according to the prosecution’s expert)

contributed to the brain injury for which Malcolm was charged. Nor

did the evidence concern acts that Malcolm allegedly committed on

the morning of the charged abuse. See Rojas, ¶ 52 (defining

intrinsic acts as those that directly prove the charged offense or

occurred contemporaneously with it and facilitated its commission).

¶ 30 Thus, given the lack of any similarity — in nature or severity

— between the other acts and the charged abuse, the other acts

3 Malcolm does not appeal the admission of evidence of the other

injuries themselves.

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were not logically relevant to prove that Malcolm caused the child’s

injuries independent of the inference that she was an abusive

parent. See Casias, ¶¶ 45, 51; Harris, ¶ 25; see also Weeks, ¶¶ 30,

38 (affirming admission of “strikingly similar” prior acts but noting

that admissibility of less similar acts was a “much closer question”).

We therefore conclude that the district court abused its discretion

by admitting the other act evidence to prove a lack of accident.

D. Harmlessness

¶ 31 Having concluded that all but two of the other acts were

inadmissible to show motive and all were inadmissible to show lack

of accident, we next address whether the error was harmless.

¶ 32 A nonconstitutional evidentiary error is harmless when there

is no reasonable probability that it contributed to the defendant’s

conviction. Casias, ¶¶ 60-61; see also Yusem, 210 P.3d at 469 n.16

(“Erroneous admission of CRE 404(b) evidence is not error of

constitutional dimension.”). A “reasonable probability” is “a

probability sufficient to undermine confidence in the outcome of the

case.” Casias, ¶ 63. In making this determination, we may

consider the overall strength of the state’s case, the impact of the

improperly admitted evidence, whether the evidence was

16
cumulative, and the presence of other evidence corroborating or

contradicting the point for which the evidence was offered. Id. at

¶ 64. When the error is the improper admission of other act

evidence, the most relevant factors are the first two. Id. at ¶ 65.

¶ 33 For three reasons, we cannot conclude that the erroneous

admission of the other act evidence in this case was harmless.

First, that evidence played a significant role at trial. Cf. id. at ¶ 68

(holding that erroneous admission of other acts of abuse was

harmless where it “did not play a significant role in the case”). Both

A.M. and C.M. testified at length at trial, as did the child welfare

manager who interviewed them, and videos of their approximately

forty-minute forensic interviews were played in full for the jury. A

primary focus of the testimony and interviews was Malcolm’s other

acts of abuse and mistreatment of the child and the other children.

Cf. Williams, ¶ 24 (holding that erroneous admission of CRE 404(b)

evidence was not harmless where “a substantial amount of evidence

of prior criminal conduct was presented with little value other than

demonstrating that the defendant had sold drugs in the past”).

¶ 34 Then, in closing argument, the prosecution highlighted this

evidence, referring to the acts A.M. and C.M. described multiple

17
times and calling them “cruel,” “extreme,” “bizarre,” and “sadistic.”

He continued by encouraging the jury to make the precise

propensity inference the evidence invited: “Given the way the

defendant regularly punished her children, it’s not hard to see how,

when that’s the type of punishment you routinely engage in, it

results in the serious bodily injury [the child] suffered.”4 Thus,

even the two acts that were properly admissible to prove Malcolm’s

motive were lumped in with the others for an improper use.

¶ 35 Second, the erroneously admitted evidence was particularly

prejudicial and impactful. See Casias, ¶ 67 (noting that the danger

of prejudice is “especially great when the evidence involves bad acts

against children” and “some acts of child abuse could be so

disturbing” as to require reversal if improperly admitted); Harris,

¶ 31 (“[T]he impact of the erroneously admitted evidence was

greater because it involved putting a defenseless child in danger.”).

By the prosecution’s own characterization, the alleged acts were

“cruel” and “sadistic.” We cannot discount the possibility that a

4 We reject Malcolm’s contention that the prosecutor committed

prosecutorial misconduct by referring to this evidence and making
this statement, which was consistent with the court’s rulings.

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jury presented with such behavior “would want to convict [Malcolm]

. . . to punish [her] for the uncharged misconduct.” Casias, ¶ 67

(noting that the acts in that case — slapping a child on her face and

shaking and smacking her on the arm — were “not of this type”).

¶ 36 Third, there was no direct evidence of what happened to the

child. As the People acknowledge, the prosecution’s evidence was

circumstantial, built in large part on inconsistencies between

Malcolm’s and her husband’s accounts, Malcolm’s odd behavior

and comments to the 911 dispatcher, and a hearsay statement by

C.M. (which he denied making at trial) that he heard Malcolm

spanking the child on the morning in question. See Harris, ¶ 32

(noting drawbacks of similar child hearsay statement). Although

two medical experts testified that the child’s brain injury was the

result of “nonaccidental trauma,” neither could testify as to how —

or even exactly when — the injury occurred. Cf. Casias, ¶¶ 5, 75

(holding that error was harmless where expert witnesses testified

that child’s injuries had been caused by being violently shaken or

slammed against a hard surface). Given this context, there is a

reasonable probability that the jury was swayed to convict by

Malcolm’s history of “cruel” and “sadistic” abuse. See id. at ¶ 33.

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¶ 37 In arguing that the admission of the other act evidence was

harmless, the People point to the limiting instructions. But those

instructions told the jury that it could consider the evidence as to

motive and absence of accident. As we have explained, with two

exceptions, any consideration of the evidence for those purposes

depended on the character inference the instruction told the jury

not to make. A defendant is entitled to a limiting instruction when

evidence is admissible for one purpose but not another. See People

v. Sabell, 2018 COA 85, ¶ 38; CRE 105. But such an instruction

does nothing to alleviate the prejudice when the evidence is not

admissible at all. See Yusem, 210 P.3d at 469; see also Spoto, 795

P.2d at 1321 (holding that absent a purpose for which the evidence

might be relevant, a limiting instruction does “nothing to alleviate

the risk” of the jury making the prohibited character inference).

¶ 38 Thus, given the highly prejudicial nature of the other act

evidence and its centrality to the prosecution’s case, we cannot

conclude that the erroneous admission of that evidence was

harmless. We therefore reverse Malcolm’s conviction.

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III. Malcolm’s Other Arguments

¶ 39 Malcolm also argues that the district court abused its

discretion by denying her for-cause challenge to a juror and by

admitting hearsay testimony from the prosecution’s medical expert.

Given our reversal of Malcolm’s conviction, we do not address these

other issues because they are not likely to “arise in precisely the

same posture” in a new trial. People v. Gulyas, 2022 COA 34, ¶ 29.

IV. Disposition

¶ 40 The judgment of conviction is reversed. The case is remanded

to the district court for a new trial.

JUDGE HARRIS and JUDGE JOHNSON concur.

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