24CA2015 Peo v Scott 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2015 Boulder County District Court No. 23CR1091 Honorable Dea M. Lindsey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Shawn Scott,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE GOMEZ Grove and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Philip J. Weiser, Attorney General, Alexandra Taylor, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado, for Defendant- Appellant ¶1 Defendant, Michael Shawn Scott, appeals the judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault on a child less than fifteen years old by one in a position of
trust as a part of a pattern of abuse. He contends that the trial
court erroneously denied his motion to admit evidence as relevant
under Colorado’s rape shield statute, section 18-3-407, C.R.S.
2025. We disagree and, therefore, affirm.
I. Background
¶2 In 2022, seventeen-year-old A.N. told her older sister, G.N.,
that she was starting to remember being inappropriately touched by
Scott, a family friend, when she was a young child. According to
A.N., physical intimacy with her new boyfriend had triggered these
memories. G.N. told their parents, who spoke with A.N. about her
disclosures. Later, A.N. and her parents had a general conversation
with A.N.’s younger sister, E.N., about A.N.’s memories. E.N. then
said she remembered having “uncomfortable” experiences with
Scott as a young girl. The family later filed a report with the police.
¶3 A.N. and E.N. separately participated in forensic interviews,
during which they recollected their experiences with Scott.
1 ¶4 During a follow-up interview with a detective, A.N. wrote the
following statement:
My boyfriend and I heard a term I have/had never heard before and I asked him what it meant. I knew about regular sex but didn’t know that there was a thing called “anal sex.” When I learned what this was I had a sick feeling and a memory of being in a shower in a lot of pain with the individual and later using the bathroom and wiping away blood and this was before my period ever started. It is fuzzy, I feel sick and wierd [sic] when I try to remember.
A.N. told the detective that the individual was Scott, that he had
penetrated her with his penis, and that the memory had occurred to
her after she tried anal sex with her boyfriend.
¶5 The prosecution charged Scott with one count of sexual
assault on a child less than fifteen years old (A.N.) by one in a
position of trust as a part of a pattern of abuse, and one count of
sexual assault on a child (E.N.) by one in a position of trust.
¶6 A month before trial, Scott filed a motion to admit, as relevant
under the rape shield statute, A.N.’s statements to the detective
that she recalled anal penetration by Scott after talking about and
engaging in anal sex with her boyfriend. The trial court denied
2 Scott’s motion after a hearing. The court also denied Scott’s two
renewals of his motion during trial.
¶7 At trial, A.N. testified, among other things, that at separate
times Scott had put her hand on his erect penis and grabbed her
vagina. She also testified that she had a “fuzzy” memory of being
pressed up against the wall in the shower with Scott while both of
them were naked, feeling pain in her anus from Scott’s penis, and
later finding blood when she wiped with toilet paper.
¶8 E.N. testified that she recalled laying across Scott’s lap and
feeling his erection during a Christmas photoshoot.
¶9 Scott testified and denied any sexual misconduct.
¶ 10 The jury acquitted Scott of the charge pertaining to E.N. but
convicted him of the charge pertaining to A.N. The court sentenced
him to an indeterminate term of ten years to life in prison.
II. Discussion
¶ 11 Scott contends that the trial court erred by denying his motion
to admit A.N.’s statements about discussing and having anal sex
with her boyfriend as relevant under the rape shield statute and
that, as a result, he was denied his constitutional rights to present
a defense and to conduct meaningful cross-examination.
3 ¶ 12 Although the parties disagree as to preservation and the
standard of reversal, we need not resolve those disputes because we
discern no evidentiary error at all.
A. Applicable Law and Standard of Review
¶ 13 The purpose of Colorado’s rape shield statute is “to protect
sexual assault victims from humiliating public fishing expeditions
into their past sexual conduct.” People v. Conyac, 2014 COA 8M,
¶ 110. The General Assembly “has declared the state’s policy to be
that victims of sexual assaults should not be subjected to
psychological or emotional abuse in court as the price of their
cooperation in prosecuting sex offenders.” People v. McKenna, 585
P.2d 275, 278 (Colo. 1978).
¶ 14 With two exceptions not relevant here, the rape shield statute
deems evidence of specific instances of the victim’s prior or
subsequent sexual conduct presumptively irrelevant.
§ 18-3-407(1). But a party may overcome the presumption of
irrelevance if a trial court finds, based on an offer of proof, that the
sexual conduct evidence is “relevant to a material issue to the case.”
§ 18-3-407(2)(a), (e).
4 ¶ 15 Evidence proffered under an exception to the rape shield
statute is subject to the relevancy and prejudice limitations under
CRE 401 and 403. People v. Sims, 2019 COA 66, ¶ 45. Evidence is
relevant if it has “any tendency to make the existence of a fact of
consequence more or less probable.” People v. Hood, 2024 COA 27,
¶ 19; see CRE 401. Although the Colorado Rules of Evidence favor
the admissibility of relevant evidence, such evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. CRE 403; Hood, ¶ 19. “In reviewing the
trial court’s determination, we assume the maximum probative
value that a reasonable fact finder might give the evidence and the
minimum unfair prejudice to be reasonably expected.” Hood, ¶ 19
(quoting People v. Clark, 2015 COA 44, ¶ 18).
¶ 16 We review evidentiary rulings, including the exclusion of
evidence under the rape shield statute, for an abuse of discretion.
Conyac, ¶ 107. A court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law. Hood, ¶ 6.
5 B. Additional Facts
¶ 17 In his motion to admit evidence of A.N.’s past sexual conduct,
Scott argued that her statements about anal sex were relevant
because they provided an alternative source for her sexual
knowledge and called into question the credibility of her allegations
against him.1 He asserted that the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice
because the evidence would directly assist the jury in determining
the truth of A.N.’s allegations and “was made contemporaneously
with A.N.’s outcry of the same sexual conduct.”
¶ 18 At the hearing, defense counsel said that the purpose of the
sexual conduct evidence was not to embarrass A.N. or to delve into
her sexual history. Rather, counsel argued, it would be very
difficult to address how her disclosure of anal penetration by Scott
occurred — and whether it was influenced by any other event —
1 The People argue that the latter rationale is not permitted because
a “defendant cannot introduce evidence of a victim’s prior sexual history to attack the credibility of a victim as a witness.” People v. Wallen, 996 P.2d 182, 186 (Colo. App. 1999). While this is true, in his reply brief, Scott expressly denies intending to introduce the evidence at issue for this reason.
6 without discussing what prompted her memory of the alleged
assaults to surface.
¶ 19 The prosecutor objected, arguing that evidence that A.N. had
anal sex with her boyfriend was unduly prejudicial. He also said
that evidence of that specific act was unnecessary because the
memory of anal penetration by Scott could be explained, like A.N.’s
other memories, by referring generally to her intimate experiences
with her boyfriend.
¶ 20 In its written order denying Scott’s motion, the trial court
found that A.N.’s past experience regarding anal sex with her
boyfriend was relevant as a possible alternative source of knowledge
regarding the specific allegation of anal penetration. But the court
found that the probative value of the evidence was limited because
the jury would already be hearing evidence that A.N.’s memories of
sexual assault by Scott were triggered by consensual sexual activity
with her boyfriend. Citing Conyac, the court further found that
(1) A.N. was old enough to know about sexual matters when she
made the outcry, regardless of her experience with Scott; (2) there
was an alternative source for A.N.’s knowledge because she was
sexually active with her boyfriend; and (3) there was no indication
7 that the prosecution intended to argue that A.N. was “sexually
naïve.”
¶ 21 As to prejudice, the trial court found that the danger of unfair
prejudice substantially outweighed the probative value of the
evidence because it would allow Scott “to embark on a line of
questioning that . . . would undoubtedly be embarrassing for A.N.,
and possibly paint her in a bad light to the jury, both of which the
Rape Sheild Statute attempts to avoid.”
¶ 22 At the start of trial, defense counsel renewed Scott’s motion to
introduce evidence of A.N.’s statements about sexual activity with
her boyfriend as relevant under the rape shield statute. The trial
court denied the request, resting on its prior ruling.
¶ 23 During A.N.’s direct testimony, she expressed that the
memories of Scott’s inappropriate touching surfaced after she
became “more physically intimate” with her boyfriend. When the
prosecutor asked what triggered her memories of the incidents with
Scott, she said,
Well, you know, [my boyfriend is] very respectful and we, like, agreed to wait till marriage and stuff. And he is very firm on that boundary, too. But even just cuddling, he accidentally brushed my thigh, and I don’t
8 think -— like it was consensual . . . . It wasn’t anything he was trying to do in a bad way. But I remember . . . some of those things and felt really just sick to my stomach and hot and panicky and just, like, really weird and was like, had to apologize to him because I just kind of . . . jumped back a little bit . . . .
¶ 24 A.N. then explained that her recollection of the incidents with
Scott occurred over time, during intimate moments with her
boyfriend: “[W]e just were, like, hugging and cuddling and stuff, but
then . . . if we were, like, kissing or more just stuff like that . . .
then I would remember something or bits and pieces with more
start to come together.” Later, the prosecutor asked A.N., “When
you’re having these physical, intimate moments with your
boyfriend, and you said you had specific memories, were those
more vivid?” A.N. responded, “Yes. Yes.”
¶ 25 On cross-examination, defense counsel and A.N. had the
following exchange:
[DEFENSE COUNSEL:] And you [and your boyfriend] were starting to get physical; is that right?
[A.N.:] Yes.
[DEFENSE COUNSEL:] Okay. You were engaging in what we might call intimate physical activities?
9 [A.N.:] Yes.
....
[DEFENSE COUNSEL:] It’s the fact that you two are getting physically intimate, and he’s asking and talking about physical things, that’s what you told people was the reason these memories came back, right?
[A.N.:] Just consensual. Yes. But consensual.
[DEFENSE COUNSEL:] Okay. Yeah. Okay. But . . . you were doing it, right?
¶ 26 A.N.’s boyfriend also testified. On direct, the prosecutor asked
him if there were times when he and A.N. were “hanging out” or
“doing anything” and she got upset. He responded:
[T]here were a few moments where we would be hanging out, and I don’t like to rush anything with her. I respect her very much, and I never want to make her uncomfortable in any way. So in the beginning of our relationship we took everything very slow. And I mean also too, because we’re also Christians and we also want to wait till marriage. But during some times when we would be, you know, cuddling or sitting together on the TV there would be moments where she would sometimes, kind of I guess, phase out and kind of focus on something else. And she would sometimes feel uneasy at first.
10 ¶ 27 When defense counsel asked A.N.’s boyfriend on
cross-examination if “hanging out” meant “getting intimate,” he
said, “Nope.” Defense counsel then asked, “And are you saying you
then immediately said after you wanted to respect her and not
make her do anything, and you had that comment about being
Christians? Are you saying that during moments of intimacy is
when she was pulling back?” He responded, “Usually.”
¶ 28 The next day, defense counsel again renewed Scott’s motion to
introduce evidence under the rape shield statute based on the
testimony from A.N. and her boyfriend indicating they were waiting
for marriage and were Christian. The court denied the request.
C. Probative Value Versus Unfair Prejudice
¶ 29 Scott argues that the trial court abused its discretion by
finding that the probative value of the evidence of A.N. trying anal
sex with her boyfriend was outweighed by the danger of unfair
prejudice. Specifically, he claims that the court didn’t assume the
maximum probative value the jury might give the evidence and the
minimum unfair prejudice reasonably expected. See Hood, ¶ 19.
¶ 30 As an initial matter, the People don’t challenge the trial court’s
finding that the evidence was “marginally relevant to the
11 circumstances of [A.N.’s] disclosure.” We therefore agree with
Scott’s assertion that the People concede he “overcame the
presumption of irrelevance,” making the only contested issue on
appeal the trial court’s findings under CRE 403 as to probative
value and prejudice.
1. Probative Value
¶ 31 Scott asserts that the probative value of the evidence as an
alternative source of A.N.’s knowledge of anal sex was greater than
the trial court acknowledged because A.N. told the detective she
didn’t know what anal sex was until talking with her boyfriend and
because she compared her experience with her boyfriend to her
memory of the alleged assault. Citing People v. Osorio-Bahena,
2013 COA 55, he argues that the degree of similarity between A.N.’s
experience with her boyfriend and her allegations against Scott
could have led the jury to find that her experience with her
boyfriend “gave her the knowledge to ‘contrive or imagine’ the
alleged anal penetration by Scott.”
¶ 32 Evidence of prior sexual conduct may be relevant to show an
alternative source for a child victim’s sexual knowledge and to rebut
“the inference that a child victim could not describe the sexual acts
12 unless the defendant had committed the alleged acts.” Id. at ¶ 27
(quoting State v. Grovenstein, 530 S.E.2d 406, 410 (S.C. Ct. App.
2000)). The probative value of such evidence may rest on the
degree of similarity between the alleged assault and the other
sexual activity. Id. at ¶ 31. But see People v. Kyle, 111 P.3d 491,
498 (Colo. App. 2004) (“[M]ere similarity between two series of
sexual assaults is insufficient to demonstrate the relevance of the
facts of the first series to the facts at issue in the second series.”),
disapproved of on other grounds by, Zoll v. People, 2018 CO 70. But
it also “necessarily depends” on the nature of the sex acts involved,
the child’s age and circumstances, and the child’s other sources of
knowledge. Osorio-Bahena, ¶ 31. A court may also consider
“whether less prejudicial means are available” to show the child’s
sexual knowledge, id., and “whether the defense or the prosecution
has relied upon the inference that a child of a certain age would or
would not have knowledge of sexual acts,” Conyac, ¶ 118.
¶ 33 “Colorado case law does not assume or presume that a child
victim is sexually naïve.” Id. at ¶ 117. Rather, courts have said
that “sexually mature children may be less likely to be confused
13 about the perpetrator’s identity and are capable of understanding
matters of a sexual nature.” Id.
While it might be possible, with regard to children of a sufficiently tender age, to infer, without more, a complete lack of knowledge about sexual matters . . ., this could hardly be the case of a child old enough to interact with other children and come in contact with television or other forms of media entertainment.
Pierson v. People, 2012 CO 47, ¶ 20.
¶ 34 Here, A.N. was seventeen at the time of her disclosures and
nineteen at the time of trial. While the jurors were not made aware
that A.N. had told the detective she didn’t know about anal sex
until her boyfriend explained it to her, they could have inferred,
based on her age, that her access to “[high] school peers, social
media, television, and music” would have contributed to her
knowledge of anal sex. Conyac, ¶ 119.
¶ 35 Moreover, A.N. testified several times that her memories of
sexual assaults by Scott, including anal penetration, were triggered
by physical intimacy with her boyfriend. The jury could therefore
consider an alternative basis for A.N.’s sexual knowledge aside from
that gained from Scott’s alleged assaults. See id. at ¶ 120.
14 ¶ 36 Also, the prosecutor didn’t raise the issue of “precocious
sexual knowledge” or argue that A.N. was sexually naïve and that
her experience with Scott was the only source of her ability to
describe anal penetration. Id. at ¶ 121.
¶ 37 Thus — despite the alleged similarities between A.N.’s
experience with her boyfriend and the allegation against Scott —
the trial court properly found that the probative value of the
evidence that A.N. had anal sex with her boyfriend was limited
because (1) the jury could have inferred that she was old enough to
know about anal sex when she outcried, regardless of her
experience with Scott; (2) there was alternative evidence of her
sexual knowledge; and (3) the prosecution did not argue that she
was sexually naïve and had no other source of sexual knowledge.
See id. at ¶ 124.
2. Unfair Prejudice
¶ 38 Scott claims that the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice because
introduction of the evidence “would not have been a broad fishing
trip to probe into [A.N.’s] sexual history” but “would have been a
targeted inquiry into one specific act that was disclosed to the police
15 and was the trigger of her recalled memory of the alleged sexual
assault.”
¶ 39 But the rape shield statute specifically prohibits the
introduction of “evidence of specific instances of the victim’s . . .
prior or subsequent sexual conduct.” § 18-3-407(1) (emphasis
added). Just because Scott alleges this would have been a “targeted
inquiry into one specific act” and not a “broad fishing trip” does not
place the evidence outside the purview of the statute. See People v.
MacLeod, 176 P.3d 75, 78 (Colo. 2008) (the rape shield protections
apply no matter the purpose for which the defendant intended to
introduce the evidence at trial).
¶ 40 Furthermore, despite the limited probative value of the
evidence, “the balancing test required by CRE 403 weighs in favor of
excluding the evidence to avoid unfair prejudice.” People v. Villa,
240 P.3d 343, 355 (Colo. App. 2009). Any relevance of A.N.’s
experience of anal sex with her boyfriend “was not so strong as to
overcome the rape shield statute’s presumption against the
admissibility of such evidence.” Id. The introduction of such
evidence — in a public setting — would substantially risk A.N.’s
16 “humiliation and psychological abuse, [which] is precisely what the
statute prohibits.” Id.
D. Testimony that A.N. and Her Boyfriend Were “Waiting Till Marriage”
¶ 41 Finally, Scott argues that the trial court abused its discretion
by excluding the evidence of A.N. trying anal sex with her boyfriend
“after they both denied physical intimacy at trial and presented
themselves as good Christians who were waiting for marriage.” He
asserts that after A.N. and her boyfriend “denied physical intimacy,”
the jury was no longer aware that it was the sexual activity between
A.N. and her boyfriend that triggered her memories of assault by
Scott. Therefore, he claims, the jury could have inferred that A.N.
was not sexually experienced and that she obtained her knowledge
of anal sex from abuse by Scott, which were inferences he needed to
rebut with the evidence of A.N.’s prior sexual conduct.
¶ 42 But the record doesn’t support Scott’s assertion that A.N. and
her boyfriend outright denied physical intimacy, leaving the jury to
conclude that they were not sexually active. On direct and
cross-examination, A.N. confirmed that she had been engaging in
intimate physical activities with her boyfriend, which were what
17 triggered her memories of incidents with Scott. And during her
boyfriend’s cross-examination, he said that it was during “moments
of intimacy” that A.N. “[u]sually” pulled back. True, A.N. and her
boyfriend specifically cited kissing, cuddling, hugging, and “more
just stuff like that,” and said they were “wait[ing] till marriage.” But
neither the prosecutor nor defense counsel asked either witness
what “waiting till marriage” meant, which could mean different
things to different people. And to the extent that A.N. and her
boyfriend contradicted themselves on the stand, it was up to the
jury to weigh the credibility of witnesses, determine the weight to
give certain evidence, and resolve inconsistencies in the evidence.
See People v. Poe, 2012 COA 166, ¶ 14.
¶ 43 Furthermore, as we have discussed, even without sexual
activity between A.N. and her boyfriend as an alternative source of
her knowledge of anal sex, the probative value of the evidence that
she had anal sex with her boyfriend was still limited because the
jury could have inferred that she was old enough to know about
anal sex regardless of her experience with Scott, and the
prosecution did not argue that she was sexually naïve. Moreover,
the risk of unfair prejudice to A.N. from the introduction of the
18 evidence remained high, as this is precisely the type of evidence
that the rape shield statute prohibits.
¶ 44 For these reasons, we conclude that the trial court did not
abuse its discretion by denying Scott’s motion to introduce evidence
as relevant under the rape shield statute.
III. Disposition
¶ 45 The judgment of conviction is affirmed.
JUDGE GROVE and JUDGE MOULTRIE concur.