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People v. Milligan
Citations: 714 P.2d 493; 1985 Colo. App. LEXIS 1258Docket: No. 84CA0433
Court: Colorado Court of Appeals; August 22, 1985; Colorado; State Appellate Court
Michael Milligan appeals his conviction for first-degree sexual assault and first-degree burglary. The court affirms the conviction. Milligan argues that the trial court improperly admitted testimony about prior similar acts to establish his modus operandi and identity. He raises three points: (1) the prosecution did not establish a prima facie case as required by § 16-10-301(4), C.R.S.; (2) the victim's in-court identification was influenced by suggestive out-of-court procedures; and (3) the prior acts were too dissimilar to be relevant. The court refutes these claims, stating that evidence of prior similar acts is permissible in sexual assault cases to prove identity and modus operandi. The trial court has discretion to determine if sufficient evidence exists for a prima facie case. In this instance, the victim was blindfolded and could not identify Milligan, making the recent, unexplained possession of a check from her apartment critical to establishing identity. The court notes that unexplained possession of stolen property can imply participation in the crime, provided the corpus delicti is established, which the trial court found through the victim's testimony. The court concludes that there was sufficient evidence outside of the similar acts to support a prima facie case for the jury. The trial court's findings regarding the sufficiency of the prosecution's evidence under C.R.S. 16-10-301(4) were upheld, with no abuse of discretion noted. The defendant's claim that the in-court identification by a victim was unreliable due to suggestive out-of-court procedures was rejected. The court found the identification procedures, including a photographic array, were not impermissibly suggestive, and the witness's identification was deemed untainted despite subsequent contacts with other alleged victims. The trial court established an independent source for the witness’s identification of the defendant. The defendant's argument that evidence of prior acts was too dissimilar for admission was also dismissed. The trial court determined that the similarities in the nature of the acts, including the method of operation and behavior post-crime, justified the admission of this evidence. The court's findings were well-supported by the record. Additionally, the defendant argued that the trial court erred by not instructing the jury on the use of evidence regarding recent unexplained possession of stolen goods. This claim was found to lack merit as the defendant did not object to the prosecution's evidence or request an appropriate jury instruction at any point during the trial. Consequently, there was no plain error regarding the jury's understanding of this evidence. Refusal to provide a proper jury instruction on the inference from exclusive possession of recently stolen property is a reversible error if requested. However, the defendant's failure to object to the evidence or to request an appropriate instruction during the trial negates any claim of error regarding the trial court's omission. Additionally, the trial court's imposition of sentences beyond the presumptive range is supported by the record and aligns with statutory purposes, demonstrating no abuse of discretion. Consequently, the judgment of conviction and the sentences are affirmed. Judges KELLY and METZGER concur.