¶1dissenting:
¶2The court conducted an in-camera hearing and found that the following similarities existed between the two transactions in question: Both robberies took place between 6:45 and 7:00 p. m. Both were at branches of Dependable Cleaners. In each instance the robber was identified as wearing a trenchcoat, carrying a gun in his hand, and in each he demanded cash and left checks. The physical descriptions of the robber as given by witnesses were very close. Based on these findings, the trial court concluded that the similarities between the transactions of December 6 and December 14,1977, were so substantial that prejudice to the defendant was outweighed by the probative value of the testimony about the first robbery. Therefore, the evidence was received and the jury instructed to consider it as probative of scheme, plan, design, or intent. I agree with the trial court’s conclusion and therefore dissent from the majority’s reversal of this conviction.
¶3As outlined in the majority opinion, in People v. Honey, Colo., 596 P.2d 751 (1979), the Supreme Court specified three inquiries to be addressed by the trial court in determining if evidence of other criminal acts should be received. The defendant argues, and the majority holds, that the evidence in question here should not have been admitted because it does not clear one of these hurdles: Whether there is a “valid purpose” for which the evidence is offered.
¶4In my view, the Honeytest was met and it was proper to receive the evidence of the earlier robbery for the purpose of showing modus operandi. And, I do not agree with the majority’s holding that plan, scheme or design evidence is appropriate only where the doing of the act is part of the consummation of the crime charged.
¶5The majority indicates that it would have been proper to receive this evidence as going to the issue of identity, but that because the jury was not instructed to consider the evidence for that purpose, a new trial is necessary. Regardless of this, the similarity of the factors as to time and space present in this case makes the evidence probative on the question of plan, scheme, design, and intent: A “valid purpose.” The jury was instructed that it could consider the evidence of the prior crime for this purpose.
¶6I would affirm this judgment.