CRE 403

History

(Federal Rule Identical.) ANNOTATION Law reviews. For article, ‘‘Admissibility of Governmental Studies to Prove Causation’’, see 11 Colo. Law. 1822 (1982). For article, ‘‘DNA: The Eyewitness of the Future’’, see 18 Colo. Law. 1333 (1989). For article, ‘‘Impeachment’’, see 22 Colo. Law. 1207 (1993). For article, ‘‘Adverse Inferences Due to Invocation of the Fifth Amendment’’, see 25 Colo. Law. 43 (March 1996). For article, ‘‘Limits on Attorney- Expert Opinions in Jury Trials Under C.R.E. 403, 702, and 704’’, see 31 Colo. Law. 53 (March 2002). For article, ‘‘Polygraph Exami- nations: Admissibility and Privilege Issues’’, see 31 Colo. Law. 69 (Nov. 2002). For article, ‘‘C.R.E. 403: The Balancing Test’’, see 33 Colo. Law. 41 (Feb. 2004). For article, ‘‘The Admissibility of Evidence of the Pre-Trial Ex- ercise of Constitutional Rights’’, see 37 Colo. Law. 81 (July 2008). For comment, ‘‘Reverse 404(b) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties’’, see 79 U. Colo. L. Rev. 587 (2008). For article, ‘‘The Expanding Use of the Res Gestae Doctrine’’, see 38 Colo. Law. 35 (June 2009). For article, ‘‘The Doctrine of Chances After People v. Jones’’, see 43 Colo. Law. 57 (July 2014). For article, ‘‘Waiver and Plain Error Review: The Case Law Frame- work’’, see 49 Colo. Law. 34 (Jan. 2020). To show an abuse of discretion for exclud- ing relevant evidence, appellant must estab- lish that the trial court’s decision was mani- festly arbitrary, unreasonable, or unfair. People v. Gibbens, 905 P.2d 604 (Colo. 1995); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Perry, 68 P.3d 472 (Colo. App. 2002); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006). When reviewing a determination under this rule for abuse of discretion, the appellate court must afford the evidence the maximum proba- tive value attributable by a reasonable fact- finder and the minimum unfair prejudice to be reasonably expected. Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006). If evidence is relevant, it is admissible un- less its probative value is outweighed by the countervailing factors of this rule. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990); People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). Probative value of the evidence was sub- stantially outweighed by the danger of unfair prejudice, because: (1) it explained how defen- dant became a suspect, an important point be- cause, absent this explanation, the jury would be left to speculate as to how defendant became a suspect and because defendant’s defense was mistaken identity; and (2) it showed the thor- oughness of the police investigation and analy- sis, which was important since defendant’s counsel had challenged the reliability of DNA analysis, partly by suggesting that the investiga- tor was biased. Additionally, witness only men- tioned the DNA databases briefly, and did not testify as to how the defendant’s DNA profile came to be in the second database. Finally, no evidence was presented as to how any individu- al’s DNA profile might come to be in either DNA database, and no evidence was presented that defendant had previously engaged in any criminal activity. Under the circumstances, any inference of prejudice was speculative. People v. Harland, 251 P.3d 515 (Colo. App. 2010). In performing the C.R.E. 403 balance on review, the proffered evidence should be given its maximal probative weight and its minimal prejudicial effect. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994); People v. Cousins, 181 P.3d 365 (Colo. App. 2007). Colorado rules of evidence strongly favor the admission of evidence. The trial court has broad discretion in determining the admissibil- ity of evidence, and the trial court’s decision will only be reviewed for abuse of discretion. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff’d on other grounds, 71 P.3d 973 (Colo. 2003). ‘‘Unfair prejudice’’ should be construed to mean the prejudice from the proponent’s evi- dence. Unfairly prejudicial evidence which may never be presented unless the defendant pursues it on cross-examination is not a sufficient basis to exclude otherwise admissible testimony. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994). Rule was designed to permit trial courts the discretion of excluding relevant evidence if its probative value is substantially out- weighed by the danger of unfair prejudice. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev’d in part on other grounds, 801 P.2d 536 (Colo. 1990). An objection to the relevance of evidence does not include an objection that the evi- dence, if admissible, is unduly prejudicial un- der this rule because of the substantial differ- ence in analysis trial courts perform under C.R.E. 401 and this rule. Am. Family Mut. Ins. Co. v. DeWitt, 216 P.3d 60 (Colo. App. 2008), aff’d, 218 P.3d 318 (Colo. 2009). Trial courts are accorded considerable dis- cretion in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. People v. Clary, 950 P.2d 654 (Colo. App. 1997); Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000). When the rules of evidence and Colo. RPC 3.4(b) overlap, the proper approach is for trial courts to balance the probative value of the evidence against the danger of unfair prejudice. Murray v. Just In Case Bus. Light- house, 2016 CO 47M, 374 P.3d 443. Generalized expert testimony fits a case if it has a sufficient logical connection to the factual issues to be helpful to the jury while still clearing the ever-present admissibility bar of this rule. In evaluating the fit of gener- alized expert testimony, a trial court must be mindful of the purposes for which such testi- mony is offered, that is, the reasons why the proponent of the evidence has asked the expert to educate the jury about certain concepts or principles. The fit need not be perfect, but attor- neys and trial courts should do their best to avoid introducing generalized expert testimony that has no logical connection to the facts of the case. People v. Cooper, 2021 CO 69, 496 P.3d 430; People v. Coons, 2021 CO 70, 495 P.3d 961. Generalized domestic violence expert testi- mony sufficiently fit the case facts to satisfy the admissibility requirements of this rule and CRE 702. People v. Johnson, 2022 COA 118, 523 P.3d 992. In so doing, trial courts should not exclude testimony from improperly compensated wit- nesses unless they determine that the testimo- ny’s danger of unfair prejudice substantially outweighs its probative value. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443. The trial court is best situated to decide on a case-by-case basis whether the testimony of a witness compensated under a contingent fee agreement so prejudices the fairness of the litigation that it requires exclusion of the im- properly compensated witness’s testimony. Murray v. Just In Case Bus. Lighthouse, 2016 CO 47M, 374 P.3d 443. Defendant entitled to present evidence cre- ating doubt as to guilt. A defendant is entitled to all reasonable opportunities to present evi- dence which might tend to create a doubt as to his guilt. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981). Evidence of similar transactions. Subject to this rule and the general rules of admissibility, evidence of similar transactions, when offered by the defendant, is admissible as long as it is relevant to the guilt or innocence of the ac- cused. People v. Bueno, 626 P.2d 1167 (Colo. App. 1981); People v. Flowers, 644 P.2d 916 (Colo. 1982), appeal dismissed, 459 U.S. 803 (1982). In eminent domain valuation hearing con- cerning street condemned by department of highways, trial court properly admitted evi- dence of sales occurring after date of valuation as comparable sales where sales were suffi- ciently comparable in character, close in time, and in location to be probative of the value of the street and where the risk that the commis- sioners would be prejudiced, confused, or mis- led was slight. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985), cert. dismissed, 736 P.2d 411 (Colo. 1987). When applying the liberal standard under C.R.E. 702 for determining the admissibility of scientific evidence, the court must also apply its discretionary authority under this rule to en- sure that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. People v. Shreck, 22 P.3d 68 (Colo. 2001). While C.R.E. 401 and this rule reflect lib- eral admission of evidence, this rule, in con- junction with C.R.E. 702, tempers broad ad- missibility by giving courts discretion to exclude expert testimony unless it passes more stringent standards of reliability and relevance. People v. Martinez, 74 P.3d 316 (Colo. 2003). Issues concerning alleged deficiencies in the chain of custody go to the weight rather than the admissibility of evidence. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. de- nied, 455 U.S. 943 (1982); People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994). Even though trial court did not consider whether evidence was unfairly prejudicial in ruling evidence was inadmissible, appellate court may consider whether it was unfairly prejudicial in determining whether trial court correctly determined the evidence was inadmissible. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). When evidentiary ruling overturned as abuse. Only where the prejudicial effect of an evidentiary item outweighs its probative value will the trial court’s evidentiary ruling be over- turned as an abuse of discretion. People v. Abbott, 638 P.2d 781 (Colo. 1981); People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People v. Wells, 754 P.2d 420 (Colo. App. 1987), rev’d on other grounds, 776 P.2d 386 (Colo. 1989). Admissibility of photographs into evidence in a homicide prosecution is a matter within the discretion of the trial judge, who must weigh their probative value against their potential in- flammatory effect on the jury; the trial judge’s determination will not be disturbed on review absent an abuse of discretion. People v. White, 199 Colo. 82, 606 P.2d 847 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Unrein, 677 P.2d 951 (Colo. App. 1983); People v. Guffie, 749 P.2d 976 (Colo. App. 1987). The admission of a photograph of the dead victim for purposes of identification is not error solely because the defendant has stipulated to identity or because identity has been established through other witnesses. People v. Viduya, 703 P.2d 1281 (Colo. 1985). The trial court has broad discretion in deter- mining the admissibility of photographs. People v. Crespin, 631 P.2d 1144 (Colo. App. 1981). Specific finding that probative value out- weighs prejudicial effect not required. In ad- mitting photographs into evidence in a criminal trial, a trial court need not specifically find that their probative value outweighs their prejudicial effect, as the alleged prejudice of photographic evidence is equally susceptible to evaluation by an appellate court. People v. Harris, 633 P.2d 1095 (Colo. App. 1981). Photographs are admissible to depict graphically anything a witness may have de- scribed in words, provided that the prejudicial effect of the photographs does not far outweigh their probative value. Photographs depicting the circumstances surrounding the victim’s death, such as the appearance of the victim and the location and nature of the wounds, have proba- tive value in a homicide case. People v. Kurts, 721 P.2d 1201 (Colo. App. 1986). Photographs taken of nude child victim at morgue were properly admitted in vehicular ho- micide trial to show the nature and extent of victim’s injuries, an issue plainly relevant to the jury’s assessment of the recklessness of defen- dant’s conduct. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998). Color photograph of murder victim at morgue, instead of black and white photograph, properly admitted to show trajectory of bullet through victim’s head and because it was not particularly shocking or inflammatory in the context of a murder case. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006). Photographs of severed elk heads were ad- missible to identify elk shot by defendant. People v. Dobson, 847 P.2d 176 (Colo. App. 1992). Photographs are not inadmissible solely be- cause defendant has stipulated to matters sought to be proven thereby, or because such matters have been established through witnesses’ testi- mony. People v. Dobson, 847 P.2d 176 (Colo. App. 1992). Photographs of exhumed murder victim’s body admissible as evidence explaining why it was difficult to determine the cause of death and why the coroner was unable to make conclusive findings. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff’d on other grounds, 71 P.3d 973 (Colo. 2003). Photographs of alleged child sexual assault victims showing the victims in apparent prayer at their first communion admissible to show victims at the age when the alleged abuse began. Although the photographs may have evoked sympathy in the jury, their admis- sion was not so unfairly prejudicial to be an abuse of discretion. People v. Herrera, 2012 COA 13, 272 P.3d 1158. ‘‘In life’’ photographs were relevant to es- tablish victim was alive prior to shooting. People v. McClelland, 2015 COA 1, 350 P.3d 976. But admission of ‘‘in life’’ photographs of victim unfairly prejudiced defendant because the visual depiction of the victim was a different image than that presented by eyewitness testi- mony. People v. McClelland, 2015 COA 1, 350 P.3d 976. Videotape admissible where probative value outweighs unfair prejudice. People v. Avery, 736 P.2d 1233 (Colo. App. 1986); McKown- Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev’d in part on other grounds, 801 P.2d 536 (Colo. 1990). Trial court did not abuse its discretion by admitting a surveillance video that depicted a shooting. The recording, from an overhead camera, was not an ad hoc depiction of the consequences of a crime, nor was it a recre- ation; rather, the recording showed the crime as it was happening. People v. V aldez, 2017 COA 41, 405 P.3d 413. Trial court did not abuse its discretion by declining to restrict the number of times ju- rors could watch surveillance videos that de- picted a shooting. The videos, which were nontestimonial evidence, were played for jurors only after their request, and were played for the jury by a court employee. People v. V aldez, 2017 COA 41, 405 P.3d 413. Probative value of videotape showing de- fendant smoking drugs outweighed the un- fair prejudice. The videotape’s probative value that contradicted defendant’s claim that he was not living in the house at the time of the evi- dence seizure was more probative than the prejudice of defendant smoking drugs particu- larly since there was other evidence introduced at trial regarding defendant’s drug use to which defendant did not object. People v. Warner, 251 P.3d 556 (Colo. App. 2010). Admission of text messages related to a drug deal were not unfairly prejudicial. The messages were relevant to the crime of posses- sion with the intent to distribute and the mes- sages did not require prejudicial, speculative assumptions. People v. Dominguez, 2019 COA 78, 454 P.3d 364. Because the defendant’s state of mind at the time of the shooting was a disputed issue at trial, the admission of slow-motion record- ings created a danger of unfair prejudice to the defendant that substantially outweighed their probative value. The real-time recording allowed the jury to judge the defendant’s state of mind by viewing the shooting as it actually occurred, whereas slowing down the recording may have portrayed the defendant’s actions as more premeditated than they actually were. People v. Tardif, 2017 COA 136, 433 P.3d 60. Admission of victims’ videotaped inter- view did not rise to the level of plain error where the victims and the official who had con- ducted the interview testified at trial and they were subject to cross-examination. People v. Burgess, 946 P.2d 565 (Colo. App. 1997). Mannequin used by prosecution to demon- strate how the victim was tied was not admit- ted as substantive evidence but was used only demonstratively. Testimony regarding the ac- curacy of such evidence must be given by a person having personal knowledge of the scene depicted, may not be based on hearsay state- ments, and is subject to cross-examination. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002). Admission of a demonstrative aid involves a four-part test. The demonstrative aid must (1) be authentic, meaning the proponent must demonstrate that the evidence is what it is claimed to be; (2) be relevant, meaning that it will assist the trier of fact in understanding other testimonial and documentary evidence; (3) be a fair and accurate representation of the evidence to which it relates; and (4) not be unduly prejudicial, meaning its probative value must not be substantially outweighed by its danger for unfair prejudice. People v. Palacios, 2018 COA 6M, 419 P.3d 1014. Test applied in People v. Sandoval, 2018 COA 156, 488 P.3d 441. Court did not err in admitting res gestae testimony regarding defendant’s conduct re- garding the concealment of his sexual assault victim’s stillborn baby. Defendant’s actions reflected efforts to conceal the birth and thus the crime. There was no abuse of discretion in ad- mitting the evidence. People v. Curtis, 2014 COA 100, 350 P.3d 949. Police officers did not ‘‘vouch for’’ truth- fulness of child rape victim by relating her statements following the crime. Therefore, no prejudice to defendant resulted from court’s ad- mission of their testimony. People v. Williams, 899 P.2d 306 (Colo. App. 1995). Trial court neither abused its discretion nor violated defendant’s right to confronta- tion where defendant was prohibited from re- vealing to jury through cross-examination that witness was in custody in another state on un- related charges where such testimony would have been cumulative and of little or no proba- tive value and where defendant was otherwise provided with ample opportunity to impeach the witness’ credibility by showing ulterior motive. People v. Griffin, 867 P.2d 27 (Colo. App. 1993). Court did not abuse its discretion by ex- cluding evidence of previous miscarriage as unduly prejudicial. The court had well founded concerns that evidence of a miscarriage could make the victim appear promiscuous and divert the jury’s attention. As well, the exclu- sion did not prevent or hamper the defendant from presenting a theory of the case. People v. Underwood, 53 P.3d 765 (Colo. App. 2002). Trial court’s ruling not disturbed unless discretion abused. Unless an abuse of discre- tion is shown, the trial court’s ruling on the admissibility of photographs into evidence will not be disturbed on review. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Y oung, 710 P.2d 1140 (Colo. App. 1985); Williamsen v. People, 735 P.2d 176 (Colo. 1987); People v. V azquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990); People v. Taylor, 804 P.2d 196 (Colo. App. 1990); People v. Fasy, 813 P.2d 797 (Colo. App. 1991); Campbell v. People, 814 P.2d 1 (Colo. 1991); Cherry Creek Sch. Dist. v. V oelker, 859 P.2d 805 (Colo. 1993). Only if a trial court abuses its discretion in excluding evidence, and such exclusion affects a party’s substantial rights, will such exclusion provide the basis for a reversal of the court’s judgment. Exclusion of evidence affects a sub- stantial right of a party only it can be said with fair assurance that the error influenced the out- come of the case or impaired the basic fairness of the trial itself. Williams v. Cont’l Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). In exercising such discretion, a trial court must consider the probative value of the pro- posed evidence, the nature of the offered evi- dence, and the other evidence admitted dur- ing trial. Williams v. Cont’l Airlines, Inc., 943 P.2d 10 (Colo. App. 1996). Photographs are not rendered inadmis- sible merely because they reveal shocking de- tails of a crime. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981). For evidence of experiment to be admis- sible it must aid rather than confuse the jury in its resolution of the issues, and it must tend directly to establish or disprove a material issue in the case. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981). Trial court properly excluded evidence when it determined that the excluded testi- mony could confuse the issues, mislead the jury, and open the door to cross-examination concerning collateral issues. People v. Watkins, 83 P.3d 1182 (Colo. App. 2003). The admission or exclusion of evidence of an experiment rests largely in the discretion of the trial court. An experiment is not rendered inad- missible solely because it is based on a disputed reconstruction of the crime. People v. Agado, 964 P.2d 565 (Colo. App. 1998). Witness may be required to demonstrate trigger pull on gun before jury if the proba- tive value of such evidence outweighs any prejudicial effect. Any prejudice flowing from defendant’s demonstration of trigger pull was ameliorated by his explanation at trial and the cast on his hand that was visible to the jury. People v. Agado, 964 P.2d 565 (Colo. App. 1998). Evidence of routine practice. The trial court has the discretion to exclude evidence of a rou- tine practice if its probative value is substan- tially outweighed by the danger of unfair preju- dice. Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). The trial court is vested with broad discre- tion in determining relevancy. Melton by and through Melton v. Larrabee, 832 P.2d 1069 (Colo. App. 1992). The testimony of a severely injured plain- tiff and his guardian in a declaratory judg- ment action to determine the issue of cover- age under an insurance policy would be prejudicial to the defendant and would consti- tute an effort to evoke sympathy. Accordingly, the trial court was well within its discretion in finding such testimony of minimal probative value with respect to the issues involved in the case. Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo. App. 1996). Trial court erred in excluding expert testi- mony as to heat of fire where it was directly related to determining plaintiff’s pain and suf- fering damages as a result of the accident. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev’d in part on other grounds, 801 P.2d 536 (Colo. 1990). Evidence that defendant left restaurant upon seeing witness was not irrelevant or prejudicial. People v. Trujillo, 686 P.2d 1364 (Colo. App. 1984). Evidence of a defendant’s flight may be relevant to show consciousness of guilt but only if it can be shown the defendant was aware he or she was being sought. People v. Perry, 68 P.3d 472 (Colo. App. 2002). Prejudice of prior criminality outweighed by probative value. Defendant’s activities at a halfway house were probative of his guilt or innocence despite the prejudicial aspects of his residence at the halfway house. People v. Clark, 705 P.2d 1017 (Colo. App. 1985). The probative value of Pennsylvania sexual assault was not outweighed by the danger of unfair prejudice. It had legitimate probative force since the Pennsylvania sexual assault was similar in important respects to the charged offense. People v. Everett, 250 P.3d 649 (Colo. App. 2010). The probative value of no conclusion DNA evidence results is substantially outweighed by the risk of unfair prejudice and mislead- ing the jury when there is no evidence of the results’ statistical significance. People v. Marks, 2015 COA 173, 374 P.3d 518. Trial court erred in admitting photos of large quantities of marijuana in defendant’s apartment because the potential for unfair prejudice substantially outweighed the proba- tive value of the evidence. People v. Wakefield, 2018 COA 37, 428 P.3d 639. Evidence of plaintiff’s status as an undocu- mented immigrant was clearly relevant to the issue of damages for lost future earnings, but the admissibility of such evidence would de- pend on whether plaintiff had violated the im- migration laws or an employment-related rule and was unlikely to remain in the United States during the period of lost future wages. Silva v. Wilcox, 223 P.3d 127 (Colo. App. 2009). Since stipulation by defendant would carry same probative weight as that of prof- fered evidence, its only remaining effect was to present irrelevant and prejudicial evidence. In this instance, its admission was harmless error. Martin v. People, 738 P.2d 789 (Colo. 1987). Trial court may require the acceptance of a stipulation of fact made by the defendant if the people’s case is not weakened by such stipulation and if the probative value of the offered evidence is substantially outweighed by the danger of unfair prejudice. People v. McGregor, 757 P.2d 1082 (Colo. App. 1987). Trial court did not abuse its discretion in admitting community corrections tracking records even though defendant’s proffered stipulation carried equal probative force. The court acted to remove any unfair prejudice by requiring the prosecution to avoid any inference that defendant was in custody. People v. St. James, 75 P.3d 1122 (Colo. App. 2002). Probative value of conditions of release recommended by disposition committee of state hospital was not substantially outweighed by unfair prejudice, confusion of issues, or mis- leading jury, or any of the other factors in this rule. Vialpando v. People, 727 P.2d 1090 (Colo. 1986). Because defendant was willing to stipulate to the mental state element of the offense which the prosecution was required to prove, there was no material fact in dispute and the probative value of introducing evidence of de- fendant’s prior misdemeanor conviction result- ing from an altercation would be minimal weighed against the danger of unfair prejudice. People v. Silva, 987 P.2d 909 (Colo. App. 1999). Death threat evidence inadmissible because it failed to show defendant’s consciousness of guilt. People v. Fernandez, 687 P.2d 502 (Colo. App. 1984). Evidence of a safety code or regulation in effect at the time of alleged negligence may be admissible in some circumstances, how- ever, codes and regulations enacted after al- leged negligence may result from research con- ducted, information obtained, impracticalities eliminated or mitigated, or even a consensus formed, after the alleged negligence; therefore, such codes and regulations do not ordinarily give a similar indication of the duty of care years before their enactment. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998). Where evidence presented at trial did not support plaintiff’s offer of proof that compli- ance with a regulation enacted after the al- leged negligence occurred would have led to the discovery of a leak before an explosion, evidence concerning the regulation was not ad- missible to establish the standard of care prior to the enactment of the regulation. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998). Cumulative evidence. The admission or re- jection of cumulative evidence is within the trial court’s discretion and its ruling will not be overturned unless an abuse of discretion clearly appears. People v. Unrein, 677 P.2d 951 (Colo. App. 1983). Cumulative evidence may be excluded by the trial court. Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984); People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992); People v. Salas, 902 P.2d 398 (Colo. App. 1994). There was no threat of a needless presenta- tion of cumulative evidence where testimony was the only evidence presented as to heat of the fire which was directly related to determin- ing plaintiff’s pain and suffering damages as a result of the accident. McKown-Katy v. Rego Co., 776 P.2d 1130 (Colo. App. 1989), rev’d in part on other grounds, 801 P.2d 536 (Colo. 1990). Where evidence to which defendant objected consisted of previous testimony that had already been admitted at trial and no one else had the information that the witness possessed, except defendant, the evidence itself was not cumula- tive. People v. Balkey, 53 P.3d 788 (Colo. App. 2002). Since the testimony had already been once received, its repetition to the jury during its deliberations was not ‘‘needless’’ within the meaning of the rule. People v. Balkey, 53 P.3d 788 (Colo. App. 2002). It was not an abuse of discretion for the trial court to exclude written reports of the proper- ty’s fair market value where two experts were examined at trial concerning their opinion of the property’s fair market value, the factors they considered, and the methods they employed and the reports merely reiterated their testimony. Nat’l Canada Corp. v. Dikeou, 868 P.2d 1131 (Colo. App. 1993). It was not an abuse of discretion for the trial court to exclude victim’s inconsistent state- ments concerning use of marijuana prior to as- sault where such evidence would have been cumulative of other testimony impeaching the victim and such evidence was potentially preju- dicial to both parties. People v. Delgado, 890 P.2d 141 (Colo. App. 1994). Testimony of several prosecution witnesses providing similar testimony did not under- mine the fairness of the trial or cast serious doubt on the reliability of the verdict where the trial court instructed jurors that they were to determine the weight and credit to be given to the victims’ out-of-court statements and that the number of witnesses testifying on a particular issue was irrelevant in weighing the strength of the evidence. People v. Burgess, 946 P.2d 565 (Colo. App. 1997). The test to apply in determining whether an accused may offer evidence that another committed the crime for which the defendant is being tried is that the defendant must first offer proof directly connecting the third person with the crime before evidence of that person’s opportunity or motive to commit the crime be- comes admissible. People v. Mulligan, 193 Colo. 509, 568 P.2d 449 (1977); People v. Schwartz, 678 P.2d 1000 (Colo. 1984). In the context of child abuse prosecution, the fact that the victim was in custody of the third person during the time when the injury could have been inflicted is sufficient direct and cir- cumstantial evidence to satisfy the test. People v. Schwartz, 678 P.2d 1000 (Colo. 1984). If a prior act indicates no aspect of intent that cannot be discerned from the act in the crime charged, there is no valid purpose for admission of the prior act evidence to prove intent, and its probative value is outweighed by its prejudicial effect. People v. Hansen, 708 P.2d 468 (Colo. App. 1985). Evidence of refusal to take a blood or breath test is admissible in evidence at a revo- cation of license proceeding or at a trial for driving under the influence or while ability im- paired, and the effect of § 42-4-1202 (3)(e) is to allow admission of such evidence in every case without a determination of relevance on a case-by-case basis. Cox v. People, 735 P.2d 153 (Colo. 1987). Probative value of battered woman opin- ion evidence was not outweighed by unfair prejudicial effect. The opinion evidence admit- ted was relevant to the issue of the victim’s credibility, and the expert did not testify regard- ing the specific relationship between the defen- dant and the victim. People v. Johnson, 74 P.3d 349 (Colo. App. 2002). Evidence of incest victim psychology held admissible and probative value not out- weighed by prejudicial effect. People v. Koon, 724 P.2d 1367 (Colo. App. 1986). Evidence protected by the rape shield stat- ute (§ 18-3-407) falls under a presumption that a victim’s or witness’ sexual conduct is irrel- evant unless the proponent of the evidence shows that it is relevant to a material issue in the case. People v. Melillo, 25 P.3d 769 (Colo. 2001). In a sexual assault trial, because evidence of a victim’s virginity spans such a lengthy period of time, it includes remote, non-proba- tive evidence of lack of sexual activity and thus is too broad and over-inclusive to be admissible in light of its prejudicial effect. Fletcher v. People, 179 P.3d 969 (Colo. 2007). A trial court may consider the policy con- cerns underlying the rape shield statute when weighing the relevance of evidence of a vic- tim’s or witness’ sexual conduct against its po- tentially prejudicial effect. People v. Melillo, 25 P.3d 769 (Colo. 2001). Trial court did not abuse its discretion by admitting into evidence tape recorded con- versation involving father accused of incest against his son, the boy, and the boy’s mother where the question of whether either the moth- er’s or father’s influence over the child may have accounted for the child’s vacillations and recantations in making the allegations was a central issue. People v. Gibbens, 905 P.2d 604 (Colo. 1995). Court did not abuse its discretion in ad- mitting evidence of defendant’s other sex as- saults. The evidence was relevant to show de- fendant’s intent and motive. People v. Orozco, 210 P.3d 472 (Colo. App. 2009). Evidence of an alternative suspect’s prior sexual conduct with someone other than the victim has questionable relevance to an alter- nate suspect defense. Even if the evidence is relevant, the probative value of the evidence is substantially outweighed by the danger of con- fusing the issues and misleading the jury. People v. Salazar, 2012 CO 20, 272 P.3d 1067. The admissibility of alternate suspect evi- dence ultimately depends on the strength of the connection between the alternate suspect and the charged crime. To be admissible, al- ternate suspect evidence must be relevant under C.R.E. 401, and its probative value must not be sufficiently outweighed by the danger of confu- sion of the issues or misleading the jury, or by considerations of undue delay. People v. Elmarr, 2015 CO 53, 351 P.3d 431; People v. Folsom, 2017 COA 146M], 431 P.3d 652. Prohibition of alternate suspect evidence deprived defendant of a fair trial. Evidence proffered by defendant established a non-specu- lative connection between the alternate suspect and the charged crime. Because the evidence identifying the defendant as the criminal was far from overwhelming, the trial court’s error was not harmless beyond a reasonable doubt. People v. Folsom, 2017 COA 146M, 431 P.3d 652. Trial court did not abuse its discretion by limiting alternate suspect evidence. Defen- dant was charged with murder after DNA evi- dence exonerated previously convicted defen- dant. Trial court allowed some evidence related to the original defendant as the perpetrator of the crime, but did not err in prohibiting defen- dant from offering evidence of the original de- fendant’s conviction. People v. Thames, 2019 COA 124, 467 P.3d 1181. Evidence of consensual sexual contact with one other than the victim, which took place in the same place and at about the same time as alleged sexual assault on child, held relevant and not unduly prejudicial. People v. Tauer, 847 P.2d 259 (Colo. App. 1993). Probative value of evidence in sexual as- sault case did not substantially outweigh danger of unfair prejudice where evidence consisted of defendant’s statements that ‘‘Mexi- cans were bred for sex’’ and Spanish-English dictionaries containing underlined words of a sexual and reproductive nature. People v. Braley, 879 P.2d 410 (Colo. 1993). Admitting evidence of victim’s rape fan- tasy and evidence of defendant and victim’s prior sexual relationship not unfairly preju- dicial. The probative value of the evidence out- weighs the prejudice the victim may suffer as a result. People v. Garcia, 179 P.3d 250 (Colo. App. 2007). Prejudice of threat outweighed by proba- tive value. A letter from defendant to a fellow prisoner, containing an admission of a fact rel- evant to proof of his guilt of the crime charged and containing a threat against the fellow pris- oner, is admissible to show a consciousness of guilt despite the prejudicial aspects of the in- cluded threat. People v. Lowe, 660 P.2d 1261 (Colo. 1983). Defendant’s statement to polygraph examiner was admissible because it was relevant to ulti- mate issue in case and prejudicial impact was minimal. People v. Robinson, 713 P.2d 1333 (Colo. App. 1985). The admission of cumulative hearsay statements of child victim of sexual assault proper where truthfulness of child victim was at issue and statements were, therefore, relevant to material issues in the case. People v. Morri- son, 985 P.2d 1 (Colo. App. 1999), aff’d on other grounds, 19 P.3d 675 (Colo. 2000). Trial court erred in precluding defendant from inquiring into, and if necessary, pre- senting evidence of, a romantic relationship between alleged victim and a friend. Evi- dence of alleged victim’s romantic and sexual relationship with friend was relevant to a mate- rial issue in the case, namely, victim’s motive to lie. Trial court’s exclusion of the motive evi- dence infringed upon defendant’s constitutional right to confront witnesses. People v. Owens, 183 P.3d 568 (Colo. App. 2007). The probative value of a prior conversa- tion between the victim and the defendant in the same setting as the alleged assault is not substantially outweighed by any danger of un- fair prejudice that may result from the admis- sion of the conversation, which is, arguably, not even evidence of defendant’s bad character. People v. Gardner, 919 P.2d 850 (Colo. App. 1995). Damage to defendant’s case not grounds for exclusion. The trial court should not ex- clude proffered evidence as unfairly prejudicial simply because it damages the defendant’s case. All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered. People v. District Court, 785 P.2d 141 (Colo. 1990). Where the evidence is admissible under § 13-25-129, defendant must show some basis for refusing the evidence beyond conclusory statements that the evidence was prejudicial and cumulative. People v. Fasy, 813 P.2d 797 (Colo. App. 1991). Only prejudice which suggests a decision made on an improper basis, such as the jury’s bias, sympathy, anger, or shock, re- quires the exclusion of evidence under this rule. Evidence should not be excluded simply because it damages the defendant’s case. People v. Salas, 902 P.2d 398 (Colo. App. 1994). The danger of prejudice presented by the evidence of the defendant’s gang member- ship did not outweigh its probative value where the evidence was not offered to prove that the defendant was more likely to kill be- cause he was a gang member; rather it was offered to show that, because of his membership in a particular gang, defendant was more likely to murder this particular victim after delibera- tion. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993). The prejudice to the defendant, if any, be- cause of the prosecutor’s statements during closing arguments that the ‘‘Bloods and Crips do not get along peaceably’’ was not so substantial as to warrant a mistrial where the nature of the relationship between the two gangs was germane to the prosecutor’s theory of the case and sufficient evidence illustrating the relationship had been introduced at trial to support the prosecutor’s statements. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993). No evidence of prosecutorial misconduct where prosecutor properly advised witness not to mention defendant’s criminal history and prosecutor did not elicit the inadmissible evi- dence from the witness. People v. Reed, 2013 COA 113, 338 P.3d 364. Prejudicial proffered evidence outweighed by probative value. Proffered evidence which calls for exclusion as unfairly prejudicial is given a more specialized meaning of an undue tendency to suggest a decision on an improper basis, commonly but not necessarily an emo- tional one, such as sympathy, hatred, contempt, retribution or horror. People v. District Court, 785 P.2d 141 (Colo. 1990); Holley v. Huang, 284 P.3d 81 (Colo. App. 2011). The fact that a witness is a member of a gang which is loyal to the defendant’s gang is probative of bias and is admissible so long as it does not unduly prejudice the defendant. People v. Trujillo, 749 P.2d 441 (Colo. App. 1987). The fact that the defendant’s expert wit- ness had a ‘‘substantial connection’’ with the defendant’s insurer is probative of bias, and admission of evidence of such connection was within the trial court’s discretion. Bonser v. Shainholtz, 3 P.3d 422 (Colo. 2000). Polygraph evidence inadmissible. Evidence of polygraph test results and testimony of poly- graph examiners is per se inadmissible in a criminal trial. People v. Anderson, 637 P.2d 354 (Colo. 1981). Descriptions of defendant’s clothing, which might be interpreted to imply a gang connection, held relevant and not unduly prejudicial where neither prosecutor nor wit- nesses used the word ‘‘gang’’. People v. Fernandez, 883 P.2d 491 (Colo. App. 1994). The trial court did not abuse its discretion in admitting into evidence portions of a vid- eotaped statement defendant made to the po- lice in which he denied an accusation that he told others that he intended to kill the victim and acknowledged that he had had three prior lovers who had died and that the victim was aware of that, where there was substantial evi- dence that the defendant had manifested an in- tent to kill the victim, the defendant made no admission of guilt regarding the deaths of his former lovers, the comments were not men- tioned or highlighted by either the court or the prosecution, and no reference was made to them during the examination of witnesses or during the prosecution’s opening or closing statements. People v. Seigler, 832 P.2d 980 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993). Trial court did not abuse discretion in not admitting ‘‘other acts’’ evidence when admis- sion of evidence would have consumed a great deal of trial time and would have had slight probative value. Hock v. N. Y. Life Ins. Co., 876 P.2d 1242 (Colo. 1994). Where a witness was temporarily unable to testify in court and the probative value of her relevant testimony was reduced by the delay in time between the witness’s observa- tions and the criminal act, the discrepancies between the witness’s and victim’s descriptions of the vehicle involved, and the witness’s ad- mission that she could not see clearly because she was not wearing her glasses, the trial court did not abuse its discretion in ruling that the minimal probative value of the witness’s testi- mony was outweighed by the delay of a con- tinuance or relocation of the trial to the wit- ness’s home. People v. Webster, 987 P.2d 836 (Colo. App. 1998). No abuse of discretion in admitting evi- dence of defendant’s deferred judgment for burglary. People v. Nuanez, 973 P.2d 1260 (Colo. 1999). Evidence of defendant’s prior domestic violence conviction was properly admitted. The conviction was relevant for impeachment purposes and was not prejudicial since it was a single, isolated, brief statement that was not a significant part of the prosecution’s cross-ex- amination or closing argument. People v. Sommers, 200 P.3d 1089 (Colo. App. 2008). Testimony about defendant’s probation status not sufficiently prejudicial to warrant a new trial where any prejudice could have been remedied by a curative instruction or by striking the improper statement but defense counsel refused the remedies. Also the court had instructed the jury to base its verdict only on the evidence submitted at trial and not con- sider answers given by witnesses before a sus- tained objection. People v. Reed, 2013 COA 113, 338 P.3d 364. No abuse of discretion in admitting police officers’ testimony about prior contact with defendant and defendant’s area restriction. Testimony was part of the res gestae of the offense because it gave the jury an understand- ing of why defendant was stopped and thus formed a natural and integral part of an account of the crime. Likewise, testimony about an out- standing misdemeanor arrest warrant was rel- evant because it described the chain of events preceding defendant’s arrest and explained why he was taken into custody. The officers did not testify about the nature of the prior contact or the nature of the area restriction; thus, this tes- timony was neither unduly inflammatory nor likely to prevent the jury from making a rational decision. Although this testimony may have been damaging to defendant, it did not amount to unfair prejudice. People v. Asberry, 172 P.3d 927 (Colo. App. 2007). Evidence of defendant’s prior drug deal- ing was properly admitted as res gestae. De- tective’s testimony explained to jury why police had set up drug buy with defendant. People v. Gomez, 211 P.3d 53 (Colo. App. 2008). Evidence of defendant’s prior unlawful sexual act was improperly admitted because the conduct of the prior act, in that particular case, was significantly more serious than the offense with which he was currently charged. People v. Brown, 2014 COA 130M, 342 P.3d 564. Admission of witness’s testimony about defendant’s threats related to his drug use weeks before defendant murdered witness’s friend was harmless. The court admitted the evidence as res gestae evidence, not character evidence. The evidence was harmless because it did not substantially influence the verdict or affect the fairness of the trial. Also the court properly admitted other extensive undisputed evidence about defendant’s drug use and addic- tion that was more prejudicial to defendant than witness’s testimony. People v. Reed, 2013 COA 113, 338 P.3d 364. No abuse of discretion for admitting false identification evidence when court found false ID card was relevant to issues of defendant’s flight, consciousness of guilt, fluency in Eng- lish, and expertise with law enforcement. People v. Al-Y ousif, 206 P.3d 824 (Colo. App. 2006). Evidence impugning moral character ex- cluded. Evidence excluded as violating stan- dard principles of evidence by needlessly im- pugning moral character. People v. Loscutoff, 661 P.2d 274 (Colo. 1983). The trial court has broad discretion to pre- clude inquiries that have no probative force or are irrelevant or have little bearing on the wit- ness’s credibility but would substantially im- pugn his character. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986). Evidence regarding defendant’s gang af- filiation properly admitted. Defendant’s gang affiliation could have shown a motive to com- mit the crime. People v. Moya, 899 P.2d 212 (Colo. App. 1994). Evidence of gang affiliation admissible. There was evidence presented that defendant’s gang affiliation motivated him to participate in the shooting. Thus, defendant’s gang affiliation could have shown a motive to commit murder. People v. Clark, 2015 COA 44, 370 P.3d 197. Evidence of a defendant’s gang involve- ment was limited to testimony of his state- ment to police that he had been involved in gang activities and that statement was of- fered in support of the prosecution’s theory that the shooting was motivated by gang ri- valry, therefore the trial court did not abuse its discretion in ruling that the testimony was not unfairly prejudicial. People v. Webster, 987 P.2d 836 (Colo. App. 1998). Evidence of defendant’s jealousy and ac- cusatory behavior was admissible as res gestae evidence because challenged testimony was part and parcel of the criminal episode for which defendant was charged. Trial court did not abuse its discretion by denying defendant’s motion for a mistrial. People v. Jaramillo, 183 P.3d 665 (Colo. App. 2008). Evidence of threats against a witness prop- erly admitted. The evidence could show con- sciousness of guilt and, by inference, that the defendant committed the crime charged. People v. Eggert, 923 P.2d 230 (Colo. App. 1995). Evidence of a witness’s fear of retaliation is admissible to explain the witness’s change in statement or reluctance to testify. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006). Evidence regarding poor health of theft victim’s husband held relevant in light of the central issue of defendant’s intention to perma- nently deprive victim of her money despite de- fendant’s knowledge of the victim’s circum- stances. People v. Merchant, 983 P.2d 108 (Colo. App. 1999). Evidence of prior bank foreclosure was probative of the interactions between bor- rower and the bank — it made it more prob- able that borrower had the requisite intent to commit theft. It was therefore relevant under C.R.E. 401. Further, the risk of unfair prejudice did not substantially outweigh the probative value of the evidence, especially where the prior foreclosure was referenced only in passing and the details of that foreclosure were not revealed. Thus, the evidence was not barred by this rule. People v. Trujillo, 2018 COA 12, 433 P.3d 78. Statement of defendant that her multiple personality disorder had been cured by the time of the murder properly admitted. State- ment had probative value, given the prosecu- tion’s theory that defendant had covered up her involvement in the crime, and defendant’s de- scription of her mental state at the time of the offense made it more probable that she had intentionally caused the death of the victim. People v. Hall, 60 P.3d 728 (Colo. App. 2002). Evidence that defendant refused to consent to search of apartment was relevant and not unfairly prejudicial to impeach his testimony that he had not lived in the apartment for the last six days and did not know there were drugs in the apartment. Evidence of refusal to consent to search could give rise to the reasonable infer- ence that defendant had dominion and control over the apartment. People v. Chavez, 190 P.3d 760 (Colo. App. 2007). A person’s refusal to consent to a search may not be used by the prosecution — either through the introduction of evidence or by explicit comment — to imply the person’s guilt of a crime. People v. Pollard, 2013 COA 31M, 307 P.3d 1124. Defendant’s nonresponsiveness at crime scene and at hospital not properly admitted since defendant’s defense of dissociative state did not rely on defendant’s state of mind at hospital or crime scene and was therefore irrel- evant to whether defendant was sane at the moment she shot the victim, and danger of unfair prejudice and likelihood of misleading the jury far outweighed any possible probative value that testimony regarding the defendant’s silence might have had. People v. Welsh, 80 P.3d 296 (Colo. 2003). Video animation was properly admitted in shaken baby syndrome prosecution because it related to expert’s opinion regarding the manner in which shaken baby syndrome injuries occur and it was included because trial court specifi- cally rejected defendant’s claim that the video was extremely violent and therefore unfairly prejudicial. People v. Cauley, 32 P.3d 602 (Colo. App. 2001). Evidence concerning possible penalties faced by witness for his part in burglary excluded. Court did not err in excluding evi- dence concerning possible penalties faced by informer which defendant argued was relevant to show informer had motive to shift blame for crime to defendant. People v. Pinkey, 761 P.2d 228 (Colo. App. 1988). Documents excluded as irrelevant. People v. Walker, 666 P.2d 113 (Colo. 1983). Expert testimony permitted. People v. Gor- don, 738 P.2d 404 (Colo. App. 1987). Propounding questions with no reasonable basis in fact for the interrogation. Defense counsel may not properly propound to a witness questions which can cause a doubt in the jury’s mind as to the witness’ credibility when there is no reasonable basis in fact for that interroga- tion. Under this rule and § 18-3-407, the defen- dant held not to have established entitlement to elicit the name of the male whom the child sexual assault victim allegedly had intercourse with days before the date of the sexual assault. People v. Vialpando, 804 P.2d 219 (Colo. App. 1990). Polygraph evidence inadmissable. If the de- fendant’s statements made to the polygraph technician are edited to remove all reference to the polygraph examination, they will not be characterized by the unfair prejudice required to make evidence excludable. People v. District Court, 785 P.2d 141 (Colo. 1990). Evidence of a defendant’s offer or willing- ness to take a polygraph examination is per se inadmissible as evidence of consciousness of innocence. People v. Muniz, 190 P.3d 774 (Colo. App. 2008). In determining the admissibility of expert testimony on the reliability of eyewitness tes- timony, the court should issue written findings of fact applying both the helpfulness standard of C.R.E. 702 and the discretion granted under this rule. Campbell v. People, 814 P.2d 1 (Colo. 1991). Trial court erred in excluding expert testi- mony on reliability of eyewitness identifica- tion where eyewitness identification of defen- dant was the only substantial element of the prosecution’s case, eyewitnesses expressed high confidence in their identification of defendant, and proffered expert testimony would have shown a poor relationship between the confi- dence of eyewitnesses, in general, and the reli- ability of such witnesses’ testimony. People v. Campbell, 847 P.2d 228 (Colo. App. 1992). Trial court properly excluded expert testi- mony. The study was not conducted in confor- mance with any standard or procedure that would ensure its reliability. As well, there was no evidence the participants were a representa- tive sampling that would yield reliable statisti- cal analysis. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). Although admission of DNA evidence was the subject of conflicting testimony, where there was expert testimony to support the court’s ruling, it was within the trial court’s discretion to allow admission of the evidence. People v. Lindsey, 868 P.2d 1085 (Colo. App. 1993). Admission of DNA evidence derived from multiplex DNA testing systems that met the standard for admission of scientific evidence under C.R.E. 702 was proper under this rule. People v. Shreck, 22 P.3d 68 (Colo. 2001). Trial court did not abuse its discretion in admitting photographs taken at the autopsy. People v. Moya, 899 P.2d 212 (Colo. App. 1994). If a contract is deemed ambiguous, court may admit extrinsic or parol evidence to as- sist in ascertaining intent of parties. Cheyenne Mtn. Sch. D. v. Thompson, 861 P.2d 711 (Colo. 1993). Three-part test under equivalent federal rule applied in People v. Campbell, 847 P.2d 228 (Colo. App. 1992). Statements that were not unduly inflam- matory nor likely to prevent jury from mak- ing a rational decision will not be found un- duly prejudicial. People v. Quintana, 882 P.2d 1366 (Colo. 1994). Testimony that detective recognized the defendant on a surveillance videotape was not so unfairly prejudicial as to mandate its exclusion. People v. Robinson, 908 P.2d 1152 (Colo. App. 1995), aff’d on other grounds, 927 P.2d 381 (Colo. 1996). Introduction of dog-tracking evidence proper where testimony of dog handler estab- lishes sufficient foundation and there is cor- roborating evidence of defendant’s guilt. People v. Brooks, 950 P.2d 649 (Colo. App. 1997), aff’d, 975 P.2d 1105 (Colo. 1999). Elements of a proper foundation for dog tracking evidence listed in Brooks v. People, 975 P.2d 1105 (Colo. 1999). Prosecutor’s use of expert testimony re- garding drug courier profiles as substantive evidence of defendant’s guilt was improper, and, although a reasonable jury could have con- victed on other evidence, the admissible evi- dence did not overwhelmingly establish defen- dant’s guilt, and there is a significant probability that the erroneously admitted testi- mony substantially influenced the jury’s verdict, and thus was not harmless. Salcedo v. People, 999 P.2d 833 (Colo. 2000). Police officer’s testimony interpreting the shape of a bullet hole in a windshield and evidence of a windshield experiment were improperly admitted. The trial court abused its discretion by admitting (1) testimony from a police officer, the prosecution’s expert, that, based on his experience and a windshield ex- periment he had conducted, the elliptical shape of a bullet hole was more consistent with a shot fired from shoulder height than with a shot fired at the stick shift level; and (2) evidence of the results of the windshield experiment. People v. Ornelas-Licano, 2020 COA 62, 490 P.3d 714. The evidence was unfairly prejudicial and misleading because it supported the prosecu- tor’s theory of the case, even though there was nothing in the record to show that anything but randomness accounted for any similarity be- tween the actual bullet hole and the hole created by the shoulder-height test shot. People v. Ornelas-Licano, 2020 COA 62, 490 P.3d 714. Court did not err in admitting drug cou- rier profile testimony from police officer be- cause it was testimony regarding how illegal drugs were transported, not specific personal characteristics of drug couriers themselves. The testimony aided the jury’s understanding of an activity with which they were not likely to be familiar. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008). In eminent domain proceeding, commis- sion did not abuse its discretion in admitting evidence regarding city’s opposition to land- owner’s planned unit development (PUD) application for limited purposes. Commission did not abuse its discretion in admitting evi- dence of city’s involvement as background on the issuance of the application, the steps neces- sary to obtain it, and the timeliness of the pro- cess. Moreover, the commission minimized any prejudicial effects of such evidence by exclud- ing testimony regarding city’s motives in op- posing PUD application. City of Englewood v. Denver Waste Transfer, L.L.C., 55 P.3d 191 (Colo. App. 2002). Because expert testifying in shaken-impact syndrome case never purported to know what minimum force would be required to cause a subdural hematoma and because tes- timony was properly qualified by other state- ments of the same expert, a single improper inference by prosecution referring to ‘‘the force it takes to make a baby’s brain bleed’’ in open- ing statement of prosecution was not sufficient to render the trial fundamentally unfair and, therefore, did not rise to the level of plain error. People v. Dunaway, 88 P.3d 619 (Colo. 2004). Trial court did not abuse discretion by allowing expert testimony to show the basis of the physician’s opinion when it was undis- puted that massive, violent force causes subdural hematoma and when physician’s testi- mony related to situations that involve massive, violent force to help the jury understand the facts of the shaken-impact syndrome case be- fore it. People v. Martinez, 74 P.3d 316 (Colo. 2003). Trial court did not abuse discretion by de- clining to conduct an in camera review of re- cords of the investigation of detective’s alleged moonlighting during on-duty hours to deter- mine whether defendant could use such records to impeach the detective’s credibility or allow the defense to admit other evidence of the moonlighting investigation. People v. Knight, 167 P.3d 141 (Colo. App. 2006). When a witness describes an item of real evidence, testimony as to its description and out-of-court identification may be admitted. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). Court may properly allow testimony con- cerning defendant’s pre-advisement silence without causing prejudice if defendant testi- fied and the evidence of defendant’s pre-advise- ment silence was elicited in the cross-examina- tion of defendant for credibility purposes. People v. Taylor, 159 P.3d 730 (Colo. App. 2006). Identification of inanimate object is not a crucial element of proof, therefore, the same constitutional protections for identifying sus- pects do not apply to procedures used in identifying inanimate objects. As a result, any inadequacy in the procedure followed and the failure to use other procedures reasonably avail- able are arguments that can be made to the jury. People v. Hogan, 114 P.3d 42 (Colo. App. 2004). ‘‘Were they lying?’’ type questions are cat- egorically improper. Witnesses are prohibited from commenting on the veracity of another witness, because such opinions are prejudicial, argumentative, and ultimately invade the prov- ince of the fact-finder. Such concerns outweigh any potential or supposed probative value elic- ited by the question. Liggett v. People, 135 P.3d 725 (Colo. 2006); People v. Koper, 2018 COA 137, 488 P.3d 409. Evidence of an alias is admissible when it is relevant to an issue of identification or an attempt to avoid detection. In this case, the alias evidence was relevant to the issue of iden- tification, ownership of the car, and, inferen- tially, the possession of the marihuana. Since its legitimate probative value outweighed the dan- ger of unfair prejudice, the alias evidence was properly admitted. People v. V alencia, 169 P.3d 212 (Colo. App. 2007). Defense counsel may open the door to the admission of evidence through questions con- cerning the method of interrogation by detec- tives and the motives of witnesses to change their testimony by raising those issues in an opening statement. People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d on other grounds, 2013 CO 57, 310 P.3d 58 (Colo. 2013). Evidence of patient’s past cocaine use ad- missible in medical malpractice case. The probative value of the evidence relating to the cause of the patient’s cardiac arrest and the failure of resuscitation efforts outweighed the risk of unfair prejudice. Kelly v. Haralampopoulos by Haralampopoulos, 2014 CO 46, 327 P.3d 255. Evidence of other medical providers’ fault in medical negligence case properly excluded because of possible jury confusion. Danko v. Conyers, 2018 COA 14, 432 P.3d 958. Admissibility of a nonparty’s invocation of fifth amendment privilege and concomitant drawings of adverse inferences should be considered by courts on a case-by-case basis to assure that any inference is reliable, relevant, and fairly advanced. McGillis Inv. Co., LLP v. First Inter. Fin. Utah, 2015 COA 116, 370 P.3d 295. Trial court did not abuse its discretion in sustaining witness’s invocation of his fifth amendment right because stopping the trial to have a different judge hold an ex parte hearing would cause undue delay. Based on the question by defense counsel that led to the invocation of the fifth amendment, it was pos- sible that the witness’s response could have incriminated him in two possible crimes. The probative value of the response was low consid- ering the evidence already elicited from the witness. An ex parte hearing on the witness’s fifth amendment right had already been held, and defense counsel did not raise the line of inquiry posed at trial during that hearing. So, there was no abuse of discretion in ruling the evidence inadmissible. People v. Clark, 2015 COA 44, 370 P.3d 197. It was not an abuse of discretion for the trial court to deny defendant’s motion to strike the testimony of victims who invoked their fifth amendment privilege with respect to cross-examination about their immigration status where questions concerning whether the victims were undocumented workers who pre- viously submitted a false social security number were not ‘‘closely related to the commission of the crime’’ and involved collateral testimony about the victims’ credibility and where the jury had heard other evidence that similarly im- pacted the victims’ credibility. People v. Rodri- guez-Morelos, 2022 COA 107M, 522 P.3d 213. Court’s admission of sex toys and pornog- raphy that were not identified by the victims or found in a location described by the vic- tims was in error. But the error does not re- quire reversal since there was no reasonable probability that the evidence contributed to the conviction. People v. Relaford, 2016 COA 99, 409 P.3d 490. Defendant’s presumption of innocence not violated when the jury viewed a video of defendant’s interrogation while wearing prison garb. Defendant was not required to wear prison clothes in the presence of the jury. In the video, defendant is not restrained or in handcuffs and appears to be in a conference room with pictures on the walls rather than a prison room. People v. Thames, 2019 COA 124, 467 P.3d 1181. Evidence that defendant’s mother called a colleague, a psychiatrist and psychologist, before deciding to call the police was not unfairly prejudicial. There was no testimony that the colleague believed defendant danger- ous. Nor was there testimony that defendant had ever been diagnosed or treated by the colleague — or by anyone else. People v. Burnell, 2019 COA 142, 459 P.3d 736. Applied in People v. Cole, 654 P.2d 830 (Colo. 1982); People v. Perez, 656 P.2d 44 (Colo. App. 1982); People v. McGhee, 677 P.2d 419 (Colo. App. 1983); People v. Hogan, 703 P.2d 634 (Colo. App. 1985); People v. Randall, 711 P.2d 689 (Colo. 1985); I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo. 1986); People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff’d, 750 P.2d 37 (Colo. 1988); Lamont v. Union Pacific R.R.Co., 714 P.2d 1341 (Colo. App. 1986); Uptain v. Hun- tington Lab, Inc., 723 P.2d 1322 (Colo. 1986); People v. Auldridge, 724 P.2d 87 (Colo. App. 1986); People v. Alexander, 724 P.2d 1304 (Colo. 1986); People v. Abeyta, 728 P.2d 327 (Colo. App. 1986); People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Turner, 730 P.2d 333 (Colo. App. 1986); People v. Montgomery, 743 P.2d 439 (Colo. App. 1987); People v. Huckleberry, 768 P.2d 1235 (Colo. App. 1989); People v. Franklin, 782 P.2d 1202 (Colo. App. 1989); People v. Martin, 791 P.2d 1159 (Colo. App. 1989); Koehn v. R.D. Werner Co., Inc., 809 P.2d 1045 (Colo. App. 1990); Martin v. Principal Cas. Ins. Co., 835 P.2d 505 (Colo. App. 1991), rev’d sub nom Budget Rent-A-Car Corp. v. Martin, 855 P.2d 1377 (Colo. 1993); People v. Dunlap, 975 P.2d 723 (Colo. 1999), cert. denied, 528 U.S. 893 (1999); George v. Welch, 997 P.2d 1248 (Colo. App. 1999), rev’d on other grounds, 19 P.3d 675 (Colo. 2000); People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000); People v. Hogan, 114 P.3d 42 (Colo. App. 2004); People v. Gonzales-Quevedo, 203 P.3d 609 (Colo. App. 2008); People v. Ortega, 2015 COA 38, 370 P.3d 181; People v. Mendenhall, 2015 COA 107M, 363 P.3d 758; People v. Johnson, 2019 COA 159, 487 P.3d 1166.