People v. Larry Gene Lancaster

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
July 28, 2022

2022COA82

No. 18CA2319, People v. Lancaster — Crimes — Colorado
Victim and Witness Protection Act of 1984 — Bribing a Witness
or Victim — Official Proceeding

As a matter of first impression, a division of the court of

appeals interprets the phrase “any official proceeding” in the bribery

statute, section 18-8-703(1), C.R.S. 2021, and holds that it is not

limited to existing proceedings but also encompasses future

proceedings. The division concludes sufficient evidence supports

the defendant’s bribery conviction even though the bribery occurred

before charges were filed. The division similarly finds sufficient

evidence to support the sexual assault – victim incapable conviction

and discerns no abuse of discretion in the trial court’s admission of

prior act evidence. The judgment is affirmed.
COLORADO COURT OF APPEALS 2022COA82

Court of Appeals No. 18CA2319
Jefferson County District Court No. 06CR1949
Honorable M.J. Menendez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry Gene Lancaster,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE FREYRE
Fox and Lipinsky, JJ., concur

Announced July 28, 2022

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado,
for Defendant-Appellant
¶1 As a matter of first impression, we are asked to interpret the

meaning of “official proceeding” in the bribery statute, § 18-8-

703(1), C.R.S. 2021, and its temporal proximity requirement to the

criminal conduct. Does the bribery statute require that a defendant

offer, confer, or agree to confer a benefit to a victim, witness, or

person only after official proceedings have been initiated, as Larry

Gene Lancaster contends? We answer that question no and hold

that bribery occurs when a defendant offers, confers, or agrees to

confer any benefit to someone he believes is to be called, or who

may be called, to testify in any official proceeding covered by section

18-8-501(3), C.R.S. 2021, with the intent to influence such

testimony.

¶2 Lancaster appeals the judgment entered after a jury convicted

him of sexual assault on a child less than fifteen, unlawful sexual

contact of a child, sexual assault (victim incapable of appraising the

nature of his conduct), contributing to the delinquency of a minor,

and two counts of bribery. We affirm.

I. Factual Background

¶3 During his seventh-grade year, thirteen-year-old J.C. met

Lancaster when J.C. was shoveling snow with his friend at their

1
condominium complex. Lancaster, who lived in the same complex,

asked J.C. and his friend to shovel snow from around his car and

patio and the boys agreed. After they finished shoveling, Lancaster

invited the boys inside and fed them.

¶4 Several months passed before J.C. returned to Lancaster’s

home with his friend. J.C. offered to do some household chores for

Lancaster and Lancaster accepted because he had a broken leg.

J.C. then continued to help Lancaster with household chores every

week or every other week in exchange for money.

¶5 During his eighth-grade year, J.C., now fourteen, began using

drugs and alcohol. He also frequented Lancaster’s home more often

to make money to support these habits. Sometimes J.C. would

help clean and, at other times, he would hang out, watch television,

or attend a party at Lancaster’s home. During one party, J.C.

asked Lancaster if he could have an alcoholic drink and Lancaster

gave one to him. Over time, the two increased the frequency of

their drinking together, as well as the amount of alcohol they

drank.

¶6 Near the end of the summer before ninth grade, J.C. and

Lancaster were drinking and putting away clothes in Lancaster’s

2
bedroom when J.C. saw some pornographic videos on top of the

television. Lancaster noticed that J.C. saw the videos and put one

in the DVD player. As they watched, Lancaster rubbed J.C.’s penis,

first over the clothing and then under it. Lancaster was interrupted

by a knock at the door or a phone call, which he answered.

Shocked at what had occurred, J.C. rushed to the bathroom and

closed the door. Shortly thereafter, Lancaster opened the bathroom

door and asked if J.C. was “going to finish what he had started.”

J.C. then masturbated to ejaculation while Lancaster watched.

After the sexual encounter, J.C. told Lancaster that he needed to go

home. Lancaster gave J.C. $20 and said, “Don’t tell anyone what

happened or I’m going to jail.”

¶7 J.C. continued to frequent Lancaster’s home after the

encounter because he was “getting drunk for free” and he “felt like

it was a safe place to go to at the time.” He started drinking “more

and more” and the sexual abuse progressed. J.C. went to

Lancaster’s home nearly every day and, after he drank two or three

mixed drinks, Lancaster performed oral sex on him while he

watched pornography. Before performing oral sex, Lancaster closed

the blinds and locked the door while J.C. undressed in the

3
bathroom. Lancaster also undressed and waited for J.C. in the

bedroom. On one or two occasions, Lancaster asked J.C. to touch

his penis, so J.C. masturbated him. After each sexual encounter,

Lancaster gave J.C. money.

¶8 The next summer, Lancaster had a party, and J.C. drank

alcohol throughout the day. After everyone left, J.C. and Lancaster

continued drinking and raced to see who could finish his drink

first. At this point, J.C. had ingested ten to twelve drinks, was

drunk, could not stand or walk a straight line, and could not see

straight. He “was drunk enough to where [he] just agreed to

anything and, to a certain extent, [he] didn’t know where [he] was

at.”

¶9 When Lancaster began shutting the blinds and locking the

doors, J.C. “knew what was going to happen.” He went to the

bathroom to undress and then entered the living room, where

Lancaster performed oral sex on him. Partway through, Lancaster

stopped and asked if he could “fuck” J.C., and J.C. said yes.

Lancaster then retrieved a condom and lubricant before anally

penetrating J.C. When the pain became too great, J.C. got up and

4
told Lancaster that he had to go home. J.C. then walked home and

went straight to bed.

¶ 10 The next morning, J.C. was still in pain and felt “disgusted”

and “absolutely violated.” Lancaster repeatedly called J.C., asking

him to come over but J.C. said no. J.C. then heard a knock at the

door, and it was Lancaster. Lancaster handed him $50 and said,

“Here’s for last night. Don’t tell anyone or I really will go to jail.”

¶ 11 A few days later, J.C. returned to Lancaster’s home and their

relationship continued for about a month and a half as it had before

the anal sex incident. Lancaster would perform oral sex on J.C.

and J.C. would do household chores for money. But J.C. stopped

seeing Lancaster after he went into alcohol and drug treatment. Six

months into his sobriety, J.C. told his outpatient counselor about

the sexual abuse and he subsequently reported the abuse to the

police.

¶ 12 The jury convicted Lancaster of sexual assault on a child less

than fifteen, unlawful sexual contact of a child, sexual assault

(victim incapable of appraising the nature of his conduct),

5
contributing to the delinquency of a minor, and two counts of

bribery.1

II. Sufficiency

¶ 13 Lancaster first contends that the prosecutor produced

insufficient evidence to support his convictions of sexual assault

(victim incapable of appraising the nature of his conduct), and

bribery. He argues that insufficient evidence showed that J.C. was

incapable of appraising the nature of his conduct when he agreed to

engage in anal sex with Lancaster. He also argues there was

insufficient evidence to support his bribery convictions because

Lancaster gave J.C. money in exchange for his silence before any

official proceedings were initiated. We address and reject each

contention.

A. Standard of Review

¶ 14 In assessing the sufficiency of the evidence to support a

conviction, we employ the substantial evidence test to determine

whether the evidence, viewed as a whole, and in the light most

1 The State also charged Lancaster with sexual assault on a child
less than fifteen for conduct against J.C.’s younger brother but the
jury acquitted him on that charge.

6
favorable to the prosecution, is sufficient to support a conclusion by

a reasonable person that the defendant is guilty of the crimes

charged beyond a reasonable doubt. Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010). We must give the prosecution the benefit

of every reasonable inference that may fairly be drawn from the

evidence. People v. Duran, 272 P.3d 1084, 1090 (Colo. App. 2011).

¶ 15 “The pertinent question is whether, after viewing the evidence

in the light most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Clark, 232 P.3d at 1291. The jurors are

entrusted with resolving the weight and credibility of the evidence.

People v. McGlotten, 166 P.3d 182, 188 (Colo. App. 2007). And we

do not sit as the thirteenth juror to reassess credibility or to reweigh

the evidence presented to the jury. Clark, 232 P.3d at 1293.

¶ 16 We review de novo questions of statutory interpretation.

People v. Perez, 2016 CO 12, ¶ 8. When construing a statute, our

primary task is to ascertain and give effect to the General

Assembly’s intent. Turbyne v. People, 151 P.3d 563, 567 (Colo.

2007). We begin with the statute’s plain language. People v.

Huckabay, 2020 CO 42, ¶ 13. “If the language is clear and

7
unambiguous on its face, we simply apply it as written and will not

resort to other interpretive aids.” Id. We “respect the legislature’s

choice of language,” and we “do not add words to the statute or

subtract words from it.” Turbyne, 151 P.3d at 567-68.

B. Sexual Assault – Victim Incapable

¶ 17 Section 18-3-402(1)(b), C.R.S. 2021, provides that a person

commits sexual assault if he “knowingly inflicts sexual intrusion or

sexual penetration on a victim” and “knows that the victim is

incapable of appraising the nature of the victim’s conduct.” A

victim is incapable of appraising the nature of his conduct in a

situation where “a victim is cognitively unable to appreciate h[is]

conduct; in other words, it involves a victim who simply cannot

understand what []he is doing.” Platt v. People, 201 P.3d 545, 548

(Colo. 2009).

¶ 18 Lancaster contends that J.C. was not so drunk as to not

understand what was happening or to not remember the details of

the sexual assault. He points to J.C.’s detailed testimony about the

sexual assault as evidence that he was “oriented to time, place[,]

and sequence of events.”

8
¶ 19 Contrary to Lancaster’s contention, we conclude that the

prosecution presented sufficient evidence that J.C. was incapable of

appraising the nature of his conduct, based on the following

evidence:

 J.C. was fifteen at the time of the sexual assault and

weighed approximately 95 to 100 pounds.

 He drank ten to twelve mixed drinks throughout the day.

 He testified that he could not stand up, walk a straight

line, or see straight.

 He testified that he was so drunk that he “just agreed to

anything and, to a certain extent, [he] didn’t know where

[he] was at.”

 After all the other guests had left, Lancaster raced J.C. to

see who could drink the mixed drinks faster.

See People in Interest of G.B., 2018 COA 77, ¶¶ 15-16 (although the

victim testified that she “knew what was going on,” there was

sufficient evidence that she was incapable of appraising the nature

of her conduct).

¶ 20 Viewing this evidence in the light most favorable to the

prosecution, we conclude that the jury could determine beyond a

9
reasonable doubt that Lancaster knew that J.C. was incapable of

appraising the nature of his conduct.

C. Bribery

¶ 21 Lancaster also contends that there was insufficient evidence to

support his bribery convictions because official proceedings had not

yet been initiated at the time he gave J.C. money to attempt to buy

his silence. The parties do not dispute that official proceedings had

not been initiated at the time of the alleged bribe. The People,

however, contend that an official proceeding does not need to be

initiated before the bribery statute applies, reasoning that a

defendant who offers, confers, or agrees to confer any benefit to a

witness, victim, or person with the intent to influence their

testimony in pending or future proceedings constitutes bribery.

¶ 22 As relevant here, a person commits bribery of a witness or

victim if he

offers, confers, or agrees to confer any benefit
upon a witness, or a victim, or a person he or
she believes is to be called to testify as a
witness or victim in any official proceeding . . .
with intent to . . . [i]nfluence the witness or
victim to testify falsely or unlawfully withhold
any testimony.

§ 18-8-703(1)(a) (emphasis added).

10
¶ 23 In People v. Yascavage, our supreme court considered whether

the tampering statute, § 18-8-707, C.R.S. 2021, “requires that the

victim or witness with whom the defendant allegedly tampered was

legally summoned and whether the general assembly intended

‘legally summoned’ to mean ‘subpoenaed’ or ‘subject to legal

process.’” 101 P.3d 1090, 1091 (Colo. 2004). In doing so, the court

interpreted the statute as a whole, including the phrase “any official

proceeding.” Id. at 1093. We find the court’s analysis analogous

here.

¶ 24 Similar to the bribery statute, section 18-8-707(1) provides as

follows:

A person commits tampering with a witness or
victim if he intentionally attempts without
bribery or threats to induce a witness or victim
or a person he believes is to be called to testify
as a witness or victim in any official proceeding
or who may be called to testify as a witness to
or victim of any crime to [do one of the
following].

(Emphasis added.)

¶ 25 The court first identified the class of persons the legislature

intended to protect — witnesses and victims. Yascavage, 101 P.3d

at 1093-94. Because the definitions of “witness” and “victim” apply

11
to a broad class of persons, so too does the protection from

tampering. Id. at 1094; see also § 18-8-702(2), C.R.S. 2021

(definition of “[w]itness”); § 18-8-702(1) (definition of “[v]ictim”).

¶ 26 Next, the supreme court found that the nexus between the

protected class of persons and the harm to be avoided —

“obstruction of justice” — “is that the defendant must believe the

person is or will be a participant in any official proceeding.”

Yascavage, 101 P.3d at 1094. Thus, tampering “occurs when a

defendant intentionally attempts to interfere with someone he

believes is to be called, or who may be called, to testify in any

proceeding covered by section 18-8-501.” Id. The court did not

limit the application of tampering only to official proceedings that

had already been initiated. Id.

¶ 27 As in Yascavage, we must view section 18-8-703 in its

entirety. Applying Yascavage’s analytic framework, we conclude

that the bribery statute is intended to protect not only witnesses

and victims, but also persons whom a defendant believes may be

called to testify. Thus, the class of persons protected by the bribery

statute is broader than that of the tampering statute. And the class

of protected persons is not limited to those designated as witnesses

12
or victims after an official proceeding has been initiated, but also

includes those with knowledge of a crime who may be called in a

future proceeding. See § 18-8-702(2)(a) (defining a “[w]itness” as

any person “[h]aving knowledge of the existence or nonexistence of

facts relating to any crime”).

¶ 28 We next look to the phrase “any official proceeding.” A

defendant must believe that a witness, victim, or person will be

called as a witness or victim in any official proceeding. An “official

proceeding” is any

proceeding heard before any legislative,
judicial, administrative, or other government
agency, or official authorized to hear evidence
under oath, including any magistrate, hearing
examiner, commissioner, notary, or other
person taking testimony or depositions in any
such proceedings.

§ 18-8-501(3).

¶ 29 However, neither the bribery statute, nor the definition of

“official proceeding,” contains an express time limitation on “any

official proceeding.” We therefore conclude that the phrase “any

official proceeding” is not limited to pending official proceedings and

includes future proceedings. Accordingly, a person commits bribery

by offering, conferring, or agreeing to confer a benefit to a witness,

13
victim, or person that he, she, or they believes will be called or may

be called to testify, with the intent to influence such testimony.

This is consistent with our supreme court’s interpretation of the

same phrase in the tampering statute.

¶ 30 Further, a majority of jurisdictions that have considered this

issue have also concluded that whether a defendant may be

convicted of bribery does not depend on whether an “official

proceeding” has been initiated, but instead depends on whether the

defendant believes the witness or victim is or will be participating in

a pending or future official proceedings. See Briggs v. State, 226

So. 3d 59, 62 (Miss. 2017); State v. Gray, 258 P.3d 242, 246 (Ariz.

Ct. App. 2011) (citing State v. Ferraro, 198 P.2d 120, 121-22 (Ariz.

1948)); Barnette v. State, 855 So. 2d 1129, 1134-35 (Ala. Crim. App.

2003); Penn v. Commonwealth, 687 S.W.2d 135 (Ky. 1985).

¶ 31 Here, Lancaster gave J.C. money after sexually assaulting him

and asked him not to tell anyone or he would go to jail. Viewing

this evidence in the light most favorable to the prosecution, we

conclude that a reasonable jury could conclude that Lancaster

believed that J.C. would be called to testify in a future criminal

14
proceeding, and that he gave J.C. the money to influence his future

testimony.

III. Prior Acts Evidence

¶ 32 Last, Lancaster contends that the trial court erroneously

admitted prior act evidence under CRE 404(b) and section 16-10-

301, C.R.S. 2021, because that evidence was too dissimilar and

remote in time to be logically relevant to this case, its prejudicial

effect substantially outweighed its minimal probative value, and it

was insufficient to establish a pattern as alleged by the prosecution.

We disagree.

A. Prior Act

¶ 33 In 1990, eighteen-year-old M.O. met Lancaster while M.O. was

working across the street from Lancaster’s employer and the two

became friends. One day, Lancaster invited M.O. over to eat pizza,

watch movies, and stay the night. Lancaster also offered to drive

M.O. to Lancaster’s home and take him back to work the following

morning. M.O. agreed. When they got to Lancaster’s home,

another young man was there, and they all drank beer together.

M.O. became tired and fell asleep on the couch and the other young

man left.

15
¶ 34 Later in the evening, M.O. woke up to Lancaster performing

oral sex on him. M.O. rolled over and said, “[W]hat the fuck is

going on?” Lancaster responded that he “thought [M.O.] wanted it”

and M.O. made it clear that he did not. Lancaster then went to his

bedroom and slammed the door. M.O. stayed awake until

Lancaster took him back to work the following morning.

¶ 35 M.O. told his girlfriend what had happened, and she advised

him to tell his mother. He subsequently reported the sexual contact

to the police. Detective Scott Buckley asked him to place a “pretext”

phone call to Lancaster to talk about the sexual contact and he

agreed. During the call, M.O. asked Lancaster, “[W]hy did you wait

till I was asleep instead of when I was awake? Did you think that’s

easier to break it to me or something?” And Lancaster responded,

“Yeah.”

¶ 36 Based on that phone call, Buckley interviewed Lancaster.

Lancaster told Buckley that, when he noticed M.O. falling asleep, he

asked M.O. whether he preferred to sleep in bed with him or on the

couch. M.O. said the couch. He laid a blanket over M.O. and

patted him over the groin area. He said that M.O. “wiggled a little

bit” and he took that as a sign that M.O. liked it. He then started

16
rubbing M.O.’s penis over the blanket. When M.O. became erect,

he took M.O.’s penis out of his pants and started performing oral

sex on him. After about two minutes, M.O. woke up and said no.

Lancaster asked M.O. if he was sure because it looked like M.O.

was enjoying it. M.O. again responded no and Lancaster stopped.

B. Standard of Review and Applicable Law

¶ 37 “Trial courts are accorded substantial discretion when

deciding whether to admit evidence of other acts.” Yusem v. People,

210 P.3d 458, 463 (Colo. 2009). Therefore, we review a trial court’s

decision to admit other acts evidence for abuse of discretion and

will only disturb the ruling if it was “manifestly arbitrary,

unreasonable, or unfair.” Id.

¶ 38 If defense counsel timely objects to the evidence on the

grounds raised on appeal, we review for harmless error. Lehnert v.

People, 244 P.3d, 1180, 1185 (Colo. 2010). An error is harmless if

it does not “substantially influence[] the verdict or affect[] the

fairness of the trial.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting

Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 39 Generally, evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person to show that the

17
person acted in conformity with the character trait on a particular

occasion. People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002); see also

CRE 404(b). However, such evidence may be admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” CRE 404(b)(2); Yusem,

210 P.3d at 463.

¶ 40 In sexual assault prosecutions, other act evidence is

admissible for any purpose other than propensity, including,

[r]efuting defenses, such as consent or recent
fabrication; showing a common plan, scheme,
design, or modus operandi, regardless of
whether identity is at issue and regardless of
whether the charged offense has a close nexus
as part of a unified transaction to the other
act; showing motive, opportunity, intent,
preparation, including grooming of a victim,
knowledge, identity, or absence of mistake or
accident; or for any other matter for which it is
relevant.

§ 16-10-301(3).

¶ 41 Before admitting evidence under CRE 404(b) and section 16-

10-301, the trial court must perform an analysis under People v.

Spoto, 795 P.2d 1314 (Colo. 1990), and determine whether (1) the

evidence relates to a material fact; (2) the evidence is logically

relevant; (3) the logical relevance is independent of the intermediate

18
inference that the defendant was acting in conformity with his or

her bad character; and (4) the evidence has probative value that is

not substantially outweighed by the danger of unfair prejudice.

People v. Jones, 2013 CO 59, ¶ 14; Spoto, 795 P.2d at 1318. The

court must also determine, by a preponderance of the evidence,

that the other act occurred, and that the defendant committed the

act. People v. Garner, 806 P.2d 366, 373 (Colo. 1991).

C. Analysis

¶ 42 We first reject Lancaster’s contention that the prosecutor

failed to provide a precise evidential hypothesis for the admission of

the prior act evidence. See Rath, 44 P.3d at 1039 (“[T]he

prosecution must articulate a precise evidential hypothesis by

which a material fact can be permissibly inferred . . . .”).

¶ 43 At the first hearing on the prosecutor’s motion to admit prior

act evidence, the trial court deferred ruling on the motion and

ordered the prosecutor to file a supplemental motion articulating “a

precise evidential hypothesis as to which element the prior bad acts

are relevant to.” However, neither the supplemental motion nor the

trial court’s ruling granting the motion are in the record before us.

Therefore, we must presume that the prosecutor complied with the

19
trial court’s order and articulated a precise evidential hypothesis for

the admission of the prior act evidence. See People v. Ullery, 984

P.2d 586, 591 (Colo. 1999) (“If the appealing party fails to provide

us with such a complete record, we must presume the correctness

of the trial court’s proceedings.”).

¶ 44 We now turn to the admissibility of the evidence and first

consider whether the prior act evidence relates to a material fact.

See Spoto, 795 P.2d at 1318 (defining a material fact as one that is

“of consequence to the determination of the action” (quoting CRE

401)). We conclude that M.O.’s age, Lancaster befriending M.O.

before inviting him to his home, Lancaster providing M.O. alcohol

before initiating sexual contact, and Lancaster beginning the sexual

contact by first touching M.O.’s penis over his pants and

progressing to oral sex are probative of Lancaster’s motive, common

plan, and knowledge. Because these are “well-accepted methods of

proving the ultimate facts necessary to establish the commission of

a crime,” we discern no abuse of discretion in the trial court’s

finding on Spoto’s first prong. Rath, 44 P.3d at 1040; see also

People v. Cousins, 181 P.3d 365, 371 (Colo. App. 2007) (“Proof of

20
other acts can be introduced to establish motive as a cause of the

charged crime.”).

¶ 45 We similarly conclude that the prior act evidence is logically

relevant and makes it more likely that Lancaster acted knowingly

and for purposes of sexual arousal, gratification, or abuse when he

touched J.C.’s penis. See Spoto, 795 P.2d at 1318 (defining logical

relevance as evidence having “any tendency to make the existence

of [the material fact] more probable or less probable than it would

be without the evidence” (quoting CRE 401)). As with J.C., M.O.’s

testimony that Lancaster befriended him before inviting him to his

home, gave him alcohol, and waited for the other guest to leave

before sexually assaulting him demonstrates a common plan or

scheme. See Rath, 44 P.3d at 1040 (concluding that evidence of

prior acts was logically relevant to prove a material fact because the

incidents “were part of a pattern of behavior . . . demonstrating a

method for committing crimes like those for which [the defendant]

was on trial”). Although there are some differences in the

circumstances surrounding each offense, namely the length of time

of sexual abuse, “it is not essential that the means of committing

the other crimes replicate in all respects the manner in which the

21
crime charged was committed.” People v. McKibben, 862 P.2d 991,

993 (Colo. App. 1993). In both cases, Lancaster befriended male

teenagers and waited until they had consumed alcohol and were in

a vulnerable state to sexually assault them.

¶ 46 Additionally, evidence of a defendant’s motive is probative of

whether the defendant possessed the requisite mental state — here,

knowledge. M.O.’s testimony helped explain Lancaster’s decision to

befriend J.C., to spend time with J.C. alone in his home, and to

offer J.C. alcohol. The prior act evidence was, therefore, probative

of Lancaster’s intent and knowledge. Thus, we discern no abuse of

discretion in the court’s findings regarding Spoto’s second prong.

¶ 47 We next conclude that the prior act is logically relevant

independent of the bad character inference prohibited by CRE

404(b). This third step “does not demand the absence of the bad

character inference but merely requires that the proffered evidence

be logically relevant independent of that inference.” People v.

Snyder, 874 P.2d 1076, 1080 (Colo. 1994). Although we

acknowledge that the prior act evidence undoubtedly injected some

bad character evidence into the trial, the crucial question is

22
whether a jury could reasonably consider that evidence for a proper

purpose, independent of this bad character inference.

¶ 48 Here, the factual similarities between the cases create the

strong inference that Lancaster had a common plan and motive —

that he looked for an opportunity to be alone with teenage males,

that he made the males vulnerable by giving them alcohol, and that

he did so with the intent to sexually assault them. See People v.

Delgado, 890 P.2d 141, 143-44 (Colo. App. 1994) (explaining that a

common plan “does not rest on the prohibited inference that [a]

defendant committed the crime charged because he was acting in

accordance with a generally bad character” but rather is relevant

because it shows a defendant’s “tendency to commit an act in a

particular way”).

¶ 49 We are not persuaded otherwise by Lancaster’s argument that

the prior act was too remote in time to be logically relevant to a

material fact independent of bad character. When enacting section

16-10-301, the General Assembly found that “evidence of other

sexual acts is typically relevant and highly probative, and it is

expected that normally the probative value of such evidence will

outweigh any danger of unfair prejudice, even when incidents are

23
remote from one another in time.” § 16-10-301(1) (emphasis added);

see also Adrian v. People, 770 P.2d 1243, 1245-56 (Colo. 1989)

(remoteness is only one factor that a court should consider in

determining the probative value of prior act evidence); People v.

Shores, 2016 COA 129, ¶ 48 (finding no abuse of discretion in the

admission of other act evidence that occurred nearly two decades

prior). And, we are not persuaded by Lancaster’s assertion that a

single prior act is insufficient to demonstrate a common plan.

When, as here, a defendant takes multiple steps during a single

prior act, the steps together are sufficient to demonstrate a common

scheme or plan. See Delgado, 890 P.2d at 144. Therefore, we

conclude that the jury could consider the prior act evidence for its

proper purpose, independent of the bad character inferences and,

thus, that Spoto’s third prong is satisfied.

¶ 50 Finally, Spoto’s fourth prong requires us to determine whether

the probative value of the evidence is substantially outweighed by

the danger of unfair prejudice under CRE 403. Because prior acts

always have the potential for prejudice, it is only unfair prejudice

that substantially outweighs probative value that requires

exclusion. Yusem, 210 P.3d at 467 (citing Masters v. People, 58

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P.3d 979, 1001 (Colo. 2002)). Factors relevant to a CRE 403

analysis include (1) the importance of the fact of consequence for

which the evidence is offered; (2) the strength and length of the

chain of inferences necessary to establish the fact of consequence;

(3) the availability of alternative means of proof; (4) whether the fact

of consequence is disputed; and (5) the potential effectiveness of a

limiting instruction. Id. at 467-68.

¶ 51 Weighing these factors, and affording the evidence its

maximum probative value, we reject Lancaster’s argument that the

circumstances of each case were so disparate in nature as to be

relevant to only bad character. Instead, for the reasons described,

we conclude the prior act evidence was highly probative of

Lancaster’s motive, common plan, and knowledge for the reasons

stated above.

¶ 52 We further reject Lancaster’s contention that Detective

Buckley’s testimony regarding the “pretext” call improperly

bolstered M.O.’s testimony. Buckley did not testify about the

veracity of M.O.’s testimony; he only testified about his interviews

with M.O. and Lancaster. He also provided additional information

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about the pretext phone call that triggered the interview with

Lancaster.

¶ 53 Finally, the trial court read a limiting instruction before J.C.’s

testimony, and it provided the jury with a written limiting

instruction before deliberations. Absent contrary evidence, we

presume the jury understood and followed these instructions.

People v. Moody, 676 P.2d 691, 697 (Colo. 1984).

¶ 54 Accordingly, we discern no abuse of discretion in the court’s

admission of the prior act evidence.

IV. Conclusion

¶ 55 The judgment is affirmed.

JUDGE FOX and JUDGE LIPINSKY concur.

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