Colorado’s second-highest court overturned a Montezuma County defendant’s child abuse conviction last month, concluding evidence of prior mistreatment was too dissimilar to the alleged conduct that formed the basis of the criminal charges.

Garland Kay Malcolm received a 32-year prison sentence after jurors convicted her in 2023 for the severe injuries to a 6-year-old boy in her household. The prosecution acknowledged the evidence was circumstantial, with no clear explanation for how Malcolm inflicted the injuries. However, the jury heard about several earlier incidents of alleged abuse, which the prosecutor called “cruel” and “sadistic.”

In a Dec. 24 decision, a three-judge Court of Appeals panel determined most of that evidence was actually inadmissible. There are limitations on prosecutors’ use of other, uncharged misconduct at trial, and the evidence may not simply establish that the defendant has “a bad character.” But based on the dissimilarity, the panel rejected the prosecution’s argument that the allegations of Malcolm’s earlier abuse helped to prove the victim’s injuries were not accidental.

“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 that several of the prior acts,” wrote Judge Karl L. Schock, “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.”

Jurors heard that sometime between 5-6 a.m. on a January morning, the victim left his bedroom in Malcolm’s house. Although there were security cameras installed, it was unclear what had happened before Malcolm called 911 shortly after 6. The victim sustained a severe brain injury, bruising on his lower body and a skull fracture.

Prosecutors charged Malcolm with child abuse resulting in serious bodily injury. Before the trial, the prosecution announced its intent to introduce evidence of other alleged acts of abuse, according to the children in Malcolm’s household. They described Malcolm harshly punishing them and the victim for misbehavior.

The prosecution argued the uncharged acts of abuse showed a common motive: that Malcolm repeatedly punished the victim for sneaking food out of the kitchen. The evidence would also demonstrate the victim’s injuries were not accidental.

Chief Judge Todd Jay Plewe allowed the jury to hear the children’s statements. He instructed jurors they could only consider the information to decide whether Malcolm had a motive to abuse the victim and whether his injuries were not accidental.

“Specifically, you may not use this evidence to conclude that because the defendant may have committed the other acts, she must also have committed the acts charged in this case,” the instruction continued.

On appeal, the appellate panel considered the dual purposes of the evidence separately. As for illustrating a potential motive, Schock acknowledged the children made two sets of statements related to Malcolm allegedly imposing consequences for sneaking food. Those statements were permitted.

However, most of the other accounts of punishment were unrelated to the prosecution’s alleged motive.

“And to the extent they merely showed a disciplinary motive more generally,” wrote Schock, “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.”

As for whether the children’s descriptions proved the victim’s injuries were non-accidental, the incidents of alleged abuse needed to be “roughly similar.” The problem, wrote Schock, was that the punishments Malcolm allegedly imposed were far less serious than the debilitating injuries she was accused of inflicting on the victim.

“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 on a different occasion,” wrote Schock. But “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.”

Because of the circumstantial nature of the case, the Court of Appeals panel believed the improperly admitted evidence likely affected the jury’s verdict. Among other things, the prosecutor told jurors that it was “not hard to see” how the “cruel” and “sometimes sadistic punishments” Malcolm inflicted resulted in the victim’s debilitating injuries.

The panel ordered a new trial. Schock added that the prosecutor did not commit misconduct in arguing Malcolm’s past actions made it likely that she injured the victim, as Plewe’s order opened the door to that commentary.

The case is People v. Malcolm.