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People v. McKinney1/30/2003
te conduct a CRE 404(b) analysis of unchallenged evidence. People v. Thompson, supra.
Similarly, a division of this court did not find plain error in the trial court's decision not to grant a mistrial when the prosecution elicited testimony from the victim, in apparent violation of a pretrial order, that the defendant had traded places with her during a traffic stop. The division reasoned:
he prosecution did not focus on any acts or statements of the defendant, but rather established that the victim had lied to protect the defendant. Thus, the emphasis was not on defendant, but on the victim. Further, there was not any testimony about any charges having been filed against defendant in connection with this incident. Accordingly, the fundamental fairness of the trial was not threatened.
People v. Lafferty, 9 P.3d 1132, 1136 (Colo. App. 1999).
As noted above, the wife's testimony at trial contradicted and recanted her written statement. During cross-examination, the prosecutor asked about her out-of-court statements in which she acknowledged that she had lied to protect defendant in the past. Specifically, the jury heard about a traffic accident in the 1960s where she took the blame and told the police that she was driving when in fact defendant was the driver. This incident was remote in time, occurring approximately forty years earlier, and the wife did not testify that any charges were filed against defendant then. See People v. Lafferty, supra.
In addition, the wife stated on cross-examination that defendant owed money to an attorney in connection with the representation of defendant for his third DUI charge. However, there was no express testimony that defendant was convicted of any DUI offense, and the wife specifically testified that he was not convicted of the third DUI charge.
Although the wife also testified that defendant had "gotten into some things," it is unclear whether this testimony referred to prior bad acts because it was vague and brief. See People v Banks, 983 P.2d 102, 105 (Colo. App. 1999), aff'd, 9 P.3d 1125 (Colo. 2000).
Accordingly, we conclude that no plain error occurred.
In light of our disposition, we do not address defendant's remaining contentions.
The judgment is reversed with respect to the convictions for theft from an at-risk adult; the judgment is affirmed in all other respects.
JUDGE ROTHENBERG and JUDGE WEBB concur.
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