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
1 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
2 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.
3 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.
4 (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
5 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
6 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
7 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
8 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.”
9 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
11 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
12 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
13 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
14 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.
15 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.
18 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.
19 ¶ 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.
20 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.