24CA0874 Peo v Montano 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0874 Alamosa County District Court No. 23CR129 Honorable Crista Newmyer-Olsen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christian Montano,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHOCK Harris and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Philip J. Weiser, Attorney General, Gina M. Nykerk, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Mary Cheung, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Christian Montano, appeals his convictions for
conspiracy to commit first degree assault and third degree assault.
He argues that (1) the evidence was insufficient to sustain his
conspiracy conviction; (2) the district court impermissibly lowered
the prosecution’s burden of proof through its silence during the
prosecution’s voir dire; and (3) the district court erred by admitting
evidence of other acts in violation of CRE 404(b). We affirm.
I. Background
¶2 In January 2023, Montano was riding in a car driven by
Janessa Martinez, along with two of his friends and the victim,
whom Montano did not know. While in the car, the group spoke on
the phone with Alejandro Sandoval, who was then in jail. Sandoval,
a member of the same gang as Montano, was dating Martinez and
believed that Martinez had been cheating on him with the victim.
¶3 On learning that Martinez was with the victim, Sandoval spoke
with Montano, who told Sandoval he thought “some fuck shit is
going on.” Sandoval then directed Montano, who had walked into a
store, to return to the car and make sure that Martinez and the
victim did not leave. Their conversation continued as follows:
1 Sandoval: . . . I want you guys to drag that fool out of the fucking car and beat the fucking shit out of him, bro.
Montano: Okay, come on.
Sandoval: Do you hear me? No, there’s no end. Make an example. Beat . . . put the fucking boot to his motherfucking face. Crunch his fucking jaw. Take the fucking glass bottle to his fucking head. All that shit, bro.
Montano: . . . Carnal, I love you. I got you, homie.
Sandoval: But stay on the phone because I want . . . I want to hear this shit, bro. I want . . . and hand the phone to my lady while you’re doing it. Let me talk to her. Go jump in the car and let me talk to her.
Montano: Alright, I’m walking . . . . Hold on. I’m on my way.
¶4 After Montano returned to the car, Sandoval called and spoke
to him again:
Sandoval: . . . Don’t let that fool leave with my lady. Do you hear me?
Montano: I totally got you, brother. I got you, homie.
Sandoval: Okay, I’ll tell you what you do though, bro. I know you got me. But don’t let that fool leave with my lady. When she takes off and she gets pissed, that fool stays there with you.
2 Montano: . . . Did you want us to fucking . . . do that?
Sandoval: Handle that shit right now.
Montano: Yeah, we’ll fuck him up.
Sandoval: But stay on, stay on the phone.
Montano: Yeah, I will.
Sandoval: Put it down, so I can hear it.
¶5 Around that time, Martinez pulled up to the home of one of the
passengers to drop the group off. When she stopped, Montano got
out of the car with the victim and one of the other passengers.
Montano approached the victim and hit him in the face. Then, the
other man hit him, and the victim fell to the ground, tucking into a
ball. The two men repeatedly hit the victim in the head and upper
body and kicked him in the head and face. After about ten
seconds, Montano told the other man to check the victim’s pockets.
As he was doing so, the victim felt a gun in the man’s hands. The
gun fired, hitting the other man, and the victim ran away. The
victim sustained injuries to his head, face, ribs, and back.
3 ¶6 Montano was charged with robbery1 and conspiracy to commit
first degree assault. Because Montano’s theory was that he had
been overcharged and had committed only the crime of third degree
assault, the district court also instructed the jury as to that offense.
A jury acquitted Montano of robbery but convicted him of
conspiracy to commit first degree assault and third degree assault.
II. Sufficiency of the Evidence
¶7 Montano contends that the evidence was insufficient to
support his conviction for conspiracy to commit first degree assault
because there was no evidence of an agreement to commit first
degree assault, as opposed to a lesser assault. We disagree.
A. Standard of Review and Applicable Law
¶8 In reviewing the sufficiency of the evidence, we review the
record de novo to determine whether the evidence was sufficient
both in quantity and quality to sustain the conviction. Johnson v.
People, 2023 CO 7, ¶ 13. We do not “serve as a thirteenth juror and
consider whether [we] might have reached a different conclusion.”
People v. Harrison, 2020 CO 57, ¶ 33. Instead, we view the evidence
1 Montano was originally charged with aggravated robbery, but the
People elected at trial to reduce the charge to robbery.
4 as a whole and in the light most favorable to the prosecution to
determine if it is “substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” Johnson, ¶ 13 (citation omitted).
¶9 A person commits conspiracy to commit a crime “if, with the
intent to promote or facilitate its commission, he agrees with
another person or persons that they, or one or more of them, will
engage in conduct which constitutes a crime or an attempt to
commit a crime.” § 18-2-201(1), C.R.S. 2025.2 The defendant must
have the “specific intent to agree to commit a particular crime.”
People v. Lucero, 2016 COA 105, ¶ 13 (citation omitted). And the
conspirators “must have agreed to commit the same particular
crime,” “not merely . . . to commit crime in general.” Id. at ¶ 25.
¶ 10 As relevant in this case, a person commits first degree assault
if, “[w]ith intent to cause serious bodily injury to another person, he
causes serious bodily injury to any person by means of a deadly
weapon.” § 18-3-202(1)(a), C.R.S. 2025. “Serious bodily injury”
means, in pertinent part, “bodily injury that . . . involves a
2 The defendant or a co-conspirator must also take an overt act in
pursuance of the conspiracy. § 18-2-201(2), C.R.S. 2025.
5 substantial risk of death; a substantial risk of serious permanent
disfigurement; a substantial risk of protracted loss or impairment of
the function of any part or organ of the body; or breaks [or]
fractures.” § 18-1-901(3)(p), C.R.S. 2025. A “[d]eadly weapon” is a
firearm or “[a] knife, bludgeon, or any other weapon, device,
instrument, material, or substance, whether animate or inanimate,
that, in the manner it is used or intended to be used, is capable of
producing death or serious bodily injury.” § 18-1-901(3)(e)(I)-(II).
B. Analysis
¶ 11 Montano argues that the evidence failed to establish an
agreement to commit first degree assault because (1) his responses
to Sandoval were ambiguous; and (2) even if there was an
agreement to commit an assault, there was no evidence that
Montano agreed to commit the severe assault Sandoval described.
¶ 12 As to Montano’s first point, the recordings of the phone calls
were sufficient to support a finding that Montano agreed with
Sandoval to assault the victim. In the first call, Montano twice
responded affirmatively to Sandoval’s directions to assault the
victim, telling him, “I got you.” Then, in the second call, Montano
asked Sandoval to confirm he wanted them to “do that.” When
6 Sandoval told him to “[h]andle that shit right now,” Montano
assured him he would, saying, “Yeah, we’ll fuck him up.” A jury
could reasonably infer from these exchanges that Montano was
agreeing to do what Sandoval had instructed him to do.
¶ 13 This evidence of an express agreement was bolstered by
Montano’s conduct right after the second call. See People v.
Robinson, 874 P.2d 453, 460 (Colo. App. 1993) (“[P]roof of a
conspiracy . . . can be inferred from the acts of the parties.”).
Shortly after Montano told Sandoval they would “fuck [the victim]
up,” Montano got out of the car and, with the other man, began
hitting and kicking the victim. And consistent with Sandoval’s
instruction to “put the . . . boot to [the victim’s] . . . face,” the victim
testified that Montano “stomp[ed] on [the victim’s] head” and
repeatedly kicked him in the face. The temporal proximity and
similarity between Montano’s conduct and Sandoval’s instructions
further supported the inference of an agreement between them.
¶ 14 We also conclude that, viewed in the light most favorable to
the prosecution, the evidence was sufficient to support a finding
that Montano’s agreement was to commit first degree assault —
that is, to cause the victim serious bodily injury with a deadly
7 weapon. Sandoval instructed Montano to, among other things, “put
the . . . boot to [the victim’s] . . . face,” “[c]runch [the victim’s] . . .
jaw,” and “[t]ake the . . . glass bottle to [the victim’s] . . . head.”3 To
the extent “crunch[ing]” the victim’s jaw meant breaking it, that is
per se serious bodily injury. See § 18-1-901(3)(p); People v. Daniels,
240 P.3d 409, 412 (Colo. App. 2009) (“[A]ny break or fracture is
sufficient to establish ‘serious bodily injury’ . . . .”). And there was
testimony that both kicking someone in the head with a boot and
hitting someone in the head with a glass bottle could cause death,
broken bones, or dysfunction of a major bodily organ — any of
which would constitute serious bodily injury. See § 18-1-901(3)(p).
¶ 15 Moreover, when used to inflict such injury, both a boot and a
bottle may be “deadly weapons.” See § 18-1-901(3)(e)(II); Bowers v.
People, 617 P.2d 560, 563 (Colo. 1980) (holding that glass bottle
“was a deadly weapon because it was capable of producing death or
3 We reject Montano’s assertion that Sandoval’s statements were
inadmissible hearsay. Those statements were not assertions of fact to which the hearsay rule applies. See People v. Phillips, 2012 COA 176, ¶ 104 (“[I]mperative declarations, such as orders or instructions . . . ordinarily fall outside the purview of the hearsay rule.” (citation omitted)). Regardless, in assessing the sufficiency of the evidence, we must consider all the evidence admitted at trial, properly admitted or not. People v. Hard, 2014 COA 132, ¶ 39.
8 serious bodily injury”), superseded by statute on other grounds, Ch.
212, sec. 2, § 18-1-903(3)(e), 1981 Colo. Sess. Laws 972, as
recognized in Montez v. People, 2012 CO 6; Grass v. People, 471
P.2d 602, 605 (Colo. 1970) (“[A]n assault with a shoe, depending on
the manner in which the shoe is used, may constitute an assault
with a deadly weapon . . . .”). Thus, a jury could reasonably find
that by agreeing to do what Sandoval directed, Montano had agreed
to cause the victim serious bodily injury with a deadly weapon.
¶ 16 Montano asserts that he did not actually cause the victim
serious bodily injury. But a person can conspire to commit a crime
without committing the underlying crime. See People v. Osborne,
973 P.2d 666, 673 (Colo. App. 1998) (“Conspiracy and the crime
which is the object of the conspiracy are different and distinct
offenses.”). In other words, that Montano did not ultimately commit
first degree assault — whether because the victim escaped or for
some other reason — does not mean he did not conspire to do so.
Nor were his actions so incongruent with Sandoval’s instructions as
to foreclose a reasonable inference that he had agreed to commit a
more serious assault than the one he committed. To the contrary,
9 as noted above, there was evidence that Montano “put [his] . . . boot
to [the victim’s] . . . face,” just as Sandoval had directed.
¶ 17 Montano also contends that his expressions of assent were too
vague to establish an agreement on a “common illicit purpose.”
Lucero, ¶ 8. But while some of Montano’s statements may have
been ambiguous, others were not. For example, in response to
Sandoval’s most detailed instructions, Montano responded, “I got
you.” And Montano closed the second call by confirming, “[W]e’ll
fuck him up.” To the extent these statements could be construed
merely as an agreement to commit a lesser assault, that was for the
jury to decide. See People v. Perez, 2016 CO 12, ¶ 31 (“The jury,
not the court, must perform the fact-finding function when
conflicting evidence — and conflicting reasonable inferences — are
presented.”). Our role is limited to determining whether the
evidence supports the jury’s verdict. Id.
¶ 18 Viewed in the light most favorable to the prosecution,
Montano’s responses to Sandoval’s explicit instructions and his
ensuing actions were sufficient to support a finding by a reasonable
jury that he and Sandoval agreed to commit first degree assault —
10 even if the evidence could also support a contrary conclusion. The
evidence was therefore sufficient to support Montano’s conviction.
III. Reasonable Doubt
¶ 19 Montano next contends that the district court lowered the
prosecution’s burden of proof by remaining silent as the prosecutor
discussed a hypothetical about the reasonable doubt standard
during voir dire. He argues that the district court implicitly adopted
the prosecutor’s statements by failing to correct them.
A. Additional Background
¶ 20 Before voir dire, the district court instructed the jury on the
presumption of innocence and the burden of proof beyond a
reasonable doubt, using the agreed-upon model instruction.4
¶ 21 During voir dire, the prosecution told a story about her dog to
engage the jurors in a conversation about the beyond a reasonable
doubt standard. She explained that “one of the rules in [her]
house” is that the dog cannot jump on the kitchen counter, and “if
she does that, she is guilty of trespassing on the kitchen counter.”
She went on to say that she had left a sandwich on the counter that
4 The prosecutor and defense counsel agreed to use a previous
version of the model reasonable doubt instruction.
11 morning, and when she returned, the sandwich was on the floor
and the dog was eating it. She asked the jurors whether, based on
that information, the dog was “guilty of trespassing” on the counter.
¶ 22 After several jurors gave their responses, mostly agreeing the
dog was guilty, the prosecutor extended the hypothetical. Now, the
dog was on trial and “testified” that a neighbor had entered the
house and knocked the sandwich off the counter. The prosecutor
asked a juror whether that scenario was “possible.” When the juror
said it was “possible, but not likely,” the prosecutor explained that
“reasonable doubt” is “a doubt based on reason and common
sense,” not a “vague or speculative or imaginary doubt.” She then
asked several jurors whether the dog’s explanation was reasonable
and tied that question back to the reasonable doubt standard:
[E]veryone would agree with me, it is physically possible?
And so we go back to this concept . . . do the People have to prove it beyond all doubt? And that’s kind of the concept. You are in charge of filtering information through your reason and common sense in coming to a conclusion that makes sense to you.
¶ 23 The prosecutor asked one more juror what they thought
“about [the] dog and her guilt of trespassing and her explanation.”
12 Defense counsel then objected (outside the hearing of the jury) “to
the use of an analogy to describe the concept of reasonable doubt.”
He asserted that “the best practice would be for the [c]ourt to just
read the reasonable doubt instruction to the jury again.” Although
the court did not find the prosecutor’s analogy improper, it agreed
to reread the reasonable doubt instruction. Defense counsel made
no further objection and did not request any additional relief.
B. Invited Error and Waiver
¶ 24 The People argue that Montano invited or waived any error in
the district court’s response to the prosecutor’s statements by
proposing the exact curative measure the district court provided —
rereading the reasonable doubt instruction to the jury. We agree.
More specifically, Montano’s challenge to the district court’s actions
after he objected is barred by the invited error doctrine, while his
challenge to the district court’s silence before he objected is waived.
¶ 25 The invited error doctrine “prevents a party from complaining
on appeal of an error that he or she has invited or injected into the
case.” People v. Rediger, 2018 CO 32, ¶ 34. The doctrine applies
when “a party requests that the court take a particular action and
then later complains of that same action.” Horton v. Suthers, 43
13 P.3d 611, 619 (Colo. 2002). Waiver is the intentional
relinquishment of a known right or privilege. Rediger, ¶ 39. Like
invited error, waiver forecloses appellate review. Id. at ¶ 40.
¶ 26 Here, after the prosecutor’s discussion of the hypothetical,
defense counsel objected on the ground that it was an improper
reasonable doubt analogy — the same argument Montano makes on
appeal. Defense counsel then said that “the best practice would be
for the [c]ourt to just read the reasonable doubt instruction to the
jury again.” (Emphasis added.) The district court did exactly that.
To the extent Montano now contends that the court should have
done more — for example, by telling the jury the prosecutor’s
statements were incorrect — he invited any error by telling the
court that simply rereading the instruction was the best practice.5
See Horton, 43 P.3d at 618 (“[T]he [invited error] doctrine ‘[o]perates
to bar a disappointed litigant from arguing on appeal that an
adverse decision below was the product of error, when that party
urged the lower court to adopt the proposition now alleged to be
5 Montano points out that the district court did not agree with
defense counsel that the prosecutor’s analogy was improper. But whether or not the court agreed with defense counsel about the alleged error, it nonetheless granted the requested remedy.
14 error.’” (citation omitted)); cf. Montoya v. People, 2017 CO 40, ¶ 33
(“[A] party is precluded from arguing instructional error on appeal
. . . when the instruction at issue was requested by that party.”).
¶ 27 Similarly, to the extent Montano challenges the court’s silence
before his objection, he waived any such error by telling the court
that reading the instruction again would be sufficient and failing to
request any further corrective action. By that time, defense counsel
was aware of the purported error and agreed that the appropriate
solution was to reread the instruction. In doing so, Montano either
expressly abandoned any further objection or clearly manifested his
intent to do so. See Forgette v. People, 2023 CO 4, ¶ 28.
¶ 28 Thus, by both invited error and waiver, we conclude that
Montano surrendered any challenge to the district court’s response
15 to the prosecutor’s comments by identifying the alleged error and
urging the solution the court adopted.6 See Horton, 43 P.3d at 619.
IV. Testimony About Boots as Deadly Weapons
¶ 29 Montano also argues that the district court erred by allowing
testimony from a detective that gangs commonly use boots as
deadly weapons. He characterizes this testimony as inadmissible
other act evidence under CRE 404(b). We again disagree.
¶ 30 At trial, the prosecutor asked the detective if a boot could be a
deadly weapon. The detective said that it could.
¶ 31 The prosecutor continued:
Q: Have you seen that before?
A: Yes.
Q: And in your experience, sir, as a detective with the Alamosa Police Department, but also with your particular specialty in drug
6 We also note that Montano does not dispute the accuracy of the
district court’s instruction on the reasonable doubt standard, which was the only thing the district court said to the jury about that standard. See Pettigrew v. People, 2022 CO 2, ¶ 42 (holding that district court did not lower prosecution’s burden of proof where court repeatedly and correctly instructed jury on reasonable doubt standard); People v. Vialpando, 2022 CO 28, ¶ 41 (holding that prosecutor’s illustrations of reasonable doubt did not lower burden of proof because jury was presumed to follow court’s instructions).
16 interdiction as well as gangs, is that a common use of force used by gang members?
Q: And how does one use a boot . . . as a deadly weapon?
A: They could stomp on their face in a downward motion. They have slang terms called “curb stomping” where they pull a person’s jaw bone apart and stomp on the back of their head.
¶ 32 At this point, defense counsel objected on the ground that the
detective was offering a legal conclusion that was inconsistent with
the legal definition of a deadly weapon. The district court overruled
the objection on that ground but sustained it as to “curb stomping”
on relevance grounds because that did not occur in this case.
¶ 33 The prosecutor then asked if the detective had “seen instances
where [a boot stomping on someone’s head] creates broken jaws.”
Defense counsel again objected, this time on the ground that the
testimony confused the issues under CRE 403 and invaded the
province of the jury. The court again overruled the objections.
¶ 34 The prosecutor continued, without further objection:
Q: Detective, have you seen boots stomping on someone’s head cause skull fractures?
17 A: Yeah. Broken bones, skull fractures, stuff like that, yes.
Q: Brain bleeds?
Q: Have you seen it cause other facial fractures, not just the jaw?
A: Like I said, the orbital bone in those areas.
Q: And is that something that is commonly used in — among gang members not just here in the Valley but across the state and across the country to inflict the most amount of injury?
A: Yes
B. Standard of Review and Applicable Law
¶ 35 We review the district court’s evidentiary rulings, including its
admission of other act evidence under CRE 404(b), for an abuse of
discretion. People v. Owens, 2024 CO 10, ¶ 105. A court abuses
its discretion “when its ruling is manifestly arbitrary, unreasonable,
unfair, or based on an incorrect understanding of the law.” Id.
¶ 36 Although Montano objected to the testimony above on other
grounds, he did not object under CRE 404(b) — which is the only
argument he makes on appeal. See People v. Gee, 2015 COA 151,
¶ 45 (noting that an issue is unpreserved if “an objection . . . was
18 made in the trial court on grounds different from those raised on
appeal”). We therefore review this issue for plain error, meaning we
will reverse only if the error was “obvious, substantial, and ‘so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.’”
People v. Snelling, 2022 COA 116M, ¶ 33 (citation omitted).
¶ 37 Under CRE 404(b)(1), “[e]vidence of any other crime, wrong, or
act 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.” But such evidence is admissible “for almost any
non-propensity purpose.” People v. Rojas, 2022 CO 8, ¶ 28. To be
admissible, other act evidence must be (1) logically relevant (2) to a
material fact (3) independent of the prohibited inference of the
defendant’s bad character, and (4) its probative value must not be
substantially outweighed by the risk of unfair prejudice. Id. at ¶ 27.
C. Analysis
¶ 38 To reiterate, Montano’s sole argument on appeal — and the
only one we address — is that the detective’s testimony about gang
members’ use of boots to cause serious injuries violated CRE
404(b). He relies on People v. Trujillo, 2014 COA 72, which held
19 that “gang affiliation evidence” may be subject to CRE 404(b) when
it “involves a separate and distinct episode wholly independent from
the offense charged.” Trujillo, ¶¶ 70-71 (citation omitted).
¶ 39 But unlike Trujillo, the detective here did not testify as to any
act by Montano, or even by other members of his gang. See id. at
¶¶ 76, 84 (addressing testimony about the defendant’s gang culture
and gang rules, including that “[the defendant] and his fellow gang
members had engaged in similar violent acts in the past”).
Although he testified that gang members “across the country”
commonly use boots to cause serious injuries, he did not tie that
general practice to any act of Montano or his gang, much less
identify a “separate and distinct episode” when Montano had done
so. Id. at ¶ 71 (citation omitted). The detective’s testimony about
what others had done, or about what he had seen in other cases,
therefore did not implicate CRE 404(b) because it was not evidence
of Montano’s “other crime, wrong, or act.” See Trujillo, ¶ 70 (noting
that CRE 404(b) applies when the evidence “could be viewed as
evidence about another crime, wrong, or act”); People v. Hall, 60
P.3d 728, 736 (Colo. App. 2002) (holding that CRE 404(b) did not
apply where evidence did not relate to the defendant’s actions).
20 ¶ 40 Moreover, even if the testimony could be construed as other
act evidence, its logical relevance did not depend on an inference
about Montano’s character.7 See Rojas, ¶ 27. Indeed, because the
detective never suggested that Montano had used his boot to cause
injury, it is questionable whether Montano’s character was
implicated at all. See id. at ¶ 43 (“If evidence doesn’t implicate the
defendant’s character, Rule 404(b) doesn’t govern its
admissibility.”). But regardless, the testimony was logically relevant
to the nature of the agreed-upon assault and what Montano
intended by his assent, independent of any character inference.
¶ 41 To convict Montano of conspiracy to commit first degree
assault, the prosecution had to prove that he agreed to cause the
victim serious bodily injury with a deadly weapon. See § 18-3-
202(1)(a). An object is a deadly weapon if it is (1) used or intended
to be used as a weapon and (2) capable of causing death or serious
bodily injury. § 18-1-901(3)(e)(II); People v. Shawn, 107 P.3d 1033,
7 Montano does not dispute that the evidence was logically relevant.
He argues only that the logical relevance was not independent of the prohibited character inference. We note that the absence of any indication that Montano or his gang used boots in the manner described reduces the probative value of this testimony, but it also supports the conclusion that CRE 404(b) does not apply.
21 1035 (Colo. App. 2004). The detective’s testimony that boots are
commonly used to cause serious bodily injury made it more likely
that by agreeing to “put the . . . boot to [the victim’s] . . . face,”
Montano was agreeing to cause the victim serious bodily injury and
to use the boot as a deadly weapon in doing so — not because
Montano was a violent person who had done it before, but because
of his presumed understanding of what that phrase conveyed.
¶ 42 Montano asserts that the detective’s testimony was too
generalized to indicate any similarity between the practices he
described and Montano’s conduct in this case. And if the evidence
had been offered to prove the completed assault, he might have a
point. See Trujillo, ¶ 84 (holding that testimony about gang rules
was inadmissible to show motive where there was no evidence that
the charged assault was gang related). But Montano’s conduct in
completing the assault was not at issue — he was not charged with
that. As to Montano’s agreement, it did not matter how he agreed
to use the boot, other than that he agreed to use it as a deadly
weapon, and that it could be so used. See People v. Rath, 44 P.3d
1033, 1042 (Colo. 2002) (“Under a particular evidential hypothesis,
22 similarity may not be significant at all, and if significant, the nature
and extent to which similarity is important may vary greatly.”).
¶ 43 We therefore conclude that the district court did not abuse its
discretion, much less plainly err, by not excluding the detective’s
testimony as impermissible other act evidence under CRE 404(b).
V. Disposition
¶ 44 The judgment is affirmed.
JUDGE HARRIS and JUDGE TAUBMAN concur.