1. CRIMINAL LAW — Evidence — Similar Acts or Transactions — Admissible in Rebuttal — Supports — Prosecution's Case-in-Chief. Evidence of similar acts or transactions in a prosecution for sexual assault is admissible to show plan, scheme, or intent, and such evidence may be admitted on rebuttal even if it supports the prosecution's case-in-chief.
Opinion by JUDGE SMITH.
Defendant appeals his convictions of first-degree criminal trespass and third-degree sexual assault. We affirm.
The prosecution's principal witness, the victim of the sexual assault, related the details of the offense. Defendant did not testify. However, his wife was called as a defense witness and testified that after his arrest, defendant had told her that if any sexual assault had occurred, it was the victim, and not he, that was the perpetrator of the offense. In rebuttal, the prosecution presented evidence that defendant had sexually assaulted another woman in a similar manner some five weeks after he assaulted the victim in the present case.
Defendant contends that the trial court erred in permitting the prosecution to introduce evidence of a similar transaction in rebuttal. He argues that such evidence, even if admissible, should have been introduced in the prosecution's case-in-chief. We disagree.
[1] Evidence of similar acts or transactions in a prosecution for sexual assault is admissible to show plan, scheme, or intent. Section 16-10-301, C.R.S. 1973 (1978 Rep. Vol. 8); People v. Pigford, 40 Colo. App. 523, 580 P.2d 820. Further, a party may introduce in rebuttal any competent evidence to refute or counteract the proof of the other party, and this is so, even if such rebuttal evidence supports the party's case-in-chief. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973).
[2] Here the testimony of defendant's wife, although not properly admissible, was in fact admitted into evidence and suggested that it was the victim rather than the defendant who instigated the sexual activities between them. Thus, it was proper for the court to allow the prosecution to rebut this testimony with evidence of a similar transaction involving defendant and another victim. Cf. People v. Pigford, supra.
Judgment affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.