The Colorado Court of Appeals denied Ofelio Acosta's appeal this week, holding up his convictions of second-degree kidnapping and sexual assault.
Acosta was convicted in a 2016 Mesa County Court case after a 12-year-old female accused Acosta of sexual assault when he was at her apartment visiting her mother in April 2007.
When her mother left for work, the girl alleged he assaulted her, forcing his way into her bedroom, punched her in the face and dragged her to her mother's bedroom.
He threatened her and she told Acosta that she would do anything he wanted if he would get her something to drink, the appeal background said.
She ran to her siblings' bedroom when he left the room, climbed out the window and ran to a neighbor's house for help.
After testifying in trial, the defense argued in closing that the victim's testimony was not credible because of inconsistent statements and inconsistencies between her account and the physical evidence.
The counsel reportedly implied she accused Acosta of the crimes because she wanted to avoid getting into trouble for missing school.
In his appeal, Acosta argued he was not given a fair trial when the prosecution admitted prior act evidence of another alleged sexual assault he was accused of by a separate victim.
The court disagreed.
In the second allegation, Acosta was accused of sexual assault of a 10-year-old female he used to babysit.
He argued the second allegation is "too dissimilar to be logically relevant to this case, its prejudicial effect substantially outweighed its minimal probative value, and it was insufficient to establish a pattern as alleged by the prosecution."
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person, but it may be admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, the court argued.
During trial, prosecution argued the evidence was admissible to show that the charged offense was committed with the same common plan, scheme, design, motive and preparation.
The defense felt the prior evidence was dissimilar and was more prejudicial than proof of anything.
The trial court found the evidence to be admissible and the court of appeals agreed.